Shaikh Irfan Shaikh Usman vs Ziaunnisabi Shaikh Irfan
2016 Latest Caselaw 2771 Bom

                                                                            CR.WP/494/2003
                                                 1


                     IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                BENCH AT AURANGABAD




                                                                                 
                          CRIMINAL WRIT PETITION NO. 494 OF 2003
                                          WITH




                                                         
                          CRIMINAL APPLICATION NO. 3024 OF 2016

     Shaikh Irfan Shaikh Usman,
     Age 32 years, Occ. Service




                                                        
     R/o Jamadar Wada, Savada,
     Tq. Raver, District Jalgaon.                                 ..Petitioner

     Versus




                                              
     Ziaunnisabi Shaikh Irfan
     Age 25 years, Occ. Service,

     Tq. and Dist. Jalgaon.
                             
     R/o Master Colony, Mehrun,
                                                                  ..Respondent

                                          ...
                            
                    Advocate for Petitioner : Shri Shaikh Javed R.
          Advocate for Respondent : Shri Gaikwad Pramod h/f Shri Talhar A.G.
                                          ...

                                   CORAM : RAVINDRA V. GHUGE, J.

Dated: June 13, 2016 ...

ORAL JUDGMENT:-

1. The petitioner is aggrieved by the judgment and order dated

12.5.2003, by which, the petitioner was directed to pay maintenance

allowance at the rate of Rs.1200/- per month. The petitioner is

aggrieved by the order dated 10.11.2003 passed by the learned Sessions

Judge, by which the Criminal Revision Application filed by the

petitioner as well as the respondent have been dismissed.

2. This petition was admitted on 22.1.2004 and the petitioner was

CR.WP/494/2003

directed to deposit 50% of the arrears of maintenance. Interim relief

was not granted to the petitioner.

3. Learned Advocate for the petitioner strenuously submits that the

concurrent findings of both the Courts below are unsustainable. There

was no evidence to indicate that the petitioner had ill-treated the

respondent / wife and on account of his ill-treatment, she was forced to

leave the marital home.

4.

It is further submitted that the respondent put forth a case in her

application for maintenance under Section 125 of the Criminal

Procedure Code, that after her marriage on 5.5.1994, the petitioner

insisted that she should complete her D.Ed. and only thereafter, should

return to the marital home. She completed her D.Ed. in 1997 and

claimed to have returned to the marital home only to be ill-treated and

driven out. It is submitted that there was neither any ill-treatment by

the petitioner, nor did the respondent return to the marital home.

5. It is further submitted that it was the petitioner who went to the

maternal home of the respondent on 15.11.1998 in order to bring her

back. Conditions were imposed that the petitioner should not ill-treat

her and he should make arrangements for living separately as husband

and wife in a separate accommodation. Because of this adamant stand

taken by the respondent, the petitioner was compelled to divorce her

CR.WP/494/2003

on 27.2.2000.

6. Learned Advocate for the petitioner has taken me through the

entire evidence with the request that the oral and documentary

evidence should be re-appreciated by this Court in the light of the fact

that the testimony of one Shri Shaikh Shafi Shaikh Tahe, who was

witness No.2 for the petitioner has been discarded as the petitioner was

the son-in-law of the friend of the said witness. He had also earlier

deposed in the Talaq proceedings in support of the petitioner and the

petitioner had in fact uttered the word "Talaq" in his presence.

Grievance is that the testimony of Shri Shaikh Shafi should not have

been discarded.

7. Reliance has been placed upon the following judgments:-

i. Deb Narayan Halder Vs. Smt. Anushree Halder [AIR 2003 SC 3174],

ii. Gangabhavani Vs. Rayapati Venkat Reddy [AIR 2013 SC 3681], and

iii. Shamim Ara Vs. State of U.P. and another [AIR 2002 SC 3551].

8. The petitioner has then relied upon the judgment and order

dated 14.7.2005, delivered by the learned Judicial Magistrate (F.C.),

vide which, the petitioner was acquitted of the offence punishable

under Section 498-A read with Section 38 of the Indian Penal Code. It is,

therefore, submitted that as the said judgment dated 14.7.2005 has not

been challenged by the respondent, it has attained finality and hence

CR.WP/494/2003

cruelty, demand of dowry and ill-treatment has not been proved against

the petitioner.

9. Learned Advocate for the respondent has supported the

impugned judgments, by contending that the scope of interference of

this Court in its revisional jurisdiction is extremely narrow. Oral and

documentary evidence considered by the trial Court and revisited by the

revisional Court cannot be gone into threadbare. Merely because a

second view is possible, this Court cannot cause any interference in the

concurrent judgments of the Courts below.

10. It is further submitted that the petitioner is a Teacher by

profession and draws a large salary. Maintenance of Rs.1,200/- per

month, as has been granted by the learned trial Court on 12.5.2013, is a

paltry amount. This Court has not granted interim relief to the

petitioner.

11. I have considered the submissions of the learned Advocates.

12. The thrust of the petitioner's case is that an independent

witness, namely, Shaikh Shafi has deposed in the trial Court and the

same has been discarded for no reason. I have gone through the

testimony of Shaikh Shafi . The petitioner is the son-in-law of Shri Shafi

's friend and the respondent is the daughter of his another friend.

CR.WP/494/2003

However, the cross-examination reveals that Shaikh Shafi was called

upon to lead evidence by the petitioner. Though this may not have any

bearing on the matter, it cannot be ignored that Shaikh Shafi had

agreed to be the person before whom the petitioner uttered the word

"Talaq" and he was, therefore, a witness to support the petitioner so as

to prove that the word "Talaq" was uttered in his presence and he

wrote it down on a paper. The trial Court as well as the revisional

Court have concluded that the role played by Shaikh Shafi in supporting

the petitioner for seeking Talaq indicates that he had led evidence so as

to absolve the petitioner from payment of maintenance amount to the

respondent.

13. Though with the able assistance of the learned Advocates, I

have considered the evidence on record, the scope of interference in

the revisional jurisdiction has been well settled by the Honourable Apex

Court in the cases of Shalini Sham Shetty Vs. Rajendra Shankar Patil

[2010 (8) SCC 329] and Radhey Shyam Vs. Chhabi Nath [(2015) 5 SCC

523]. The entire oral and documentary evidence is not to be gone into

threadbare and re-appreciated in revisional jurisdiction. Merely because

a second view could be taken cannot be a ground for causing

interference in the findings on facts arrived at by the trial Court and

more so, when the said findings have already been gone into by the

learned Sessions Judge.

CR.WP/494/2003

14. In the cited judgment, in the matter of Deb Narayan (supra), the

issue was with regard to the ill-treatment and the demand of dowry by

the husband. The Honourable Apex Court concluded that when the

parties had happily lived and cohabited for more than 11 years, the

alleged torture for dowry after a happy married life of 11 years is

unbelievable. In this case, the allegation by the petitioner that the

respondent deserted him, was not established.

15.

In the Gangabhavani (supra), the Honourable Apex Court

concluded that an interested witness would be one, who desires to

derive some benefit out of the litigation. In the instant case, Shaikh

Shafi had played the role of a witness and as a person before whom the

petitioner had uttered the word "Talaq" and had written down the said

word. He was therefore, instrumental in supporting the petitioner for

obtaining Talaq. In this backdrop, the trial Court as well as the Sessions

Court concluded that he was interested in supporting the petitioner so

as to absolve him of the responsibility to pay the maintenance amount.

16. In so far as the judgment of the Honourable Apex Court in the

case of Shamim Ara (supra) is concerned, the same was with regard to

whether the marriage between the parties stood dissolved as on the

date of the written statement. The manner of obtaining divorce by

using the term "Talaq" was considered by the Court.

CR.WP/494/2003

17. In my view, therefore, the above referred judgments would not

be of any assistance to the petitioner.

18. Considering the above, I do not find that the impugned judgments

could be termed as being perverse or erroneous so as to cause grave

injustice to the petitioner.

19. The petition is, therefore, dismissed. Rule is discharged.

20.

Pending criminal application stand disposed off.

( RAVINDRA V. GHUGE, J. ) ...

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