Bombay High Court
Ashfaque S/O Mushtaq Ahmad And ... vs Smt. Farzana W/O Ashfaque Ahmad ... on 21 November, 2016
Bench: P.N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.258 OF 2016
1) Ashfaque s/o Mushtaq Ahmad,
aged about 48 years, occupation :
service,
2) Mushtaq s/o Ahmad Haji Abdul
Khaliq, aged about 80 years,
Both nos. 1 and 2 residents of
opposite Ice Factory, Yerkheda,
Kamptee, District Nagpur. ... Petitioners
- Versus -
1) Smt. Farzana w/o Ashfaque Ahmad,
aged about 41 years, occupation :
Private, resident of opposite Ice Factory,
Yerkheda, Kamptee, District Nagpur.
2) The State of Maharashtra. ... Respondents
-----------------
Shri A.A. Naik, Advocate for petitioners.
Ms. Ayesha Rizwy, Advocate for respondent no.1.
Shri C.A. Lokhande, Additional Public Prosecutor for respondent no.2.
----------------
CORAM : P.N. DESHMUKH, J.
DATED : NOVEMBER 21, 2016
ORAL JUDGMENT :
Rule. Rule is made returnable forthwith. Heard finally by
consent of learned Counsel for the parties.
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2) By this petition, petitioner no.1, who is husband of respondent
no.1, and petitioner no.2, who is father of petitioner no.1, seek to quash
and set aside the judgment and order dated 28/1/2016 passed by learned
Additional Sessions Judge, Nagpur in Criminal Appeal No.241/2014 and
the judgment and order dated 4/9/2014 passed by learned Judicial
Magistrate, First Class, Kamptee in Criminal Application No. 141/2009
vide which amount of Rs.10,000/- per month is directed to be paid by
petitioner no.1 to respondent no.1 as maintenance.
3) Shri Naik, learned Counsel for petitioners, submits that
marriage between petitioner no.1 and respondent no.1 took place in the
year 1987 and in the year 2009, petitioner no.1 had divorced respondent
no.1. However, learned trial Court without framing any issue on this
aspect, in spite of sufficiently pleaded, directed grant of maintenance. The
appeal preferred against said judgment and order of learned trial Court
was dismissed by learned Additional Sessions Judge. He, therefore, prays
that petition may be allowed and judgments and orders passed by both the
Courts below may be quashed and set aside.
4) Ms. Rizwy, learned Counsel for respondent no.1, submits that
there is nothing on record to establish divorce to have taken place
between petitioner no.1 and respondent no.1 as learned appellate Court in
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para 14 of its judgment has rightly noted that petitioner no.1 failed to
establish said fact by bringing proper evidence on record.
5) In the light of submissions advanced, as aforesaid, and on
perusal of the documents filed in support of the petition, it is found that
petitioner no.1 was directed to pay Rs.10,000/- per month to respondent
no.1 towards maintenance from the date of application by learned Judicial
Magistrate, First Class, Kamptee. The appeal appears to have been
dismissed by learned Additional Sessions Judge.
6) Petitioner no.1 in his reply to application under Section 12
read with Sections 17, 18 and 19 of the Protection of Woman from
Domestic Violence Act, 2005 filed by respondent no.1 has specifically put
up his case of pronouncing talaq to respondent no.1 on 8/6/2009 as per
Muslim law in the presence of competent witnesses for a valid reason,
which was reduced into writing by way of talaqnama and was served upon
respondent no.1. It is also the case of petitioner no.1 that dower amount
(Mehar) of Rs.20,000/- including Rs.8000/- towards maintenance for the
iddat period was duly paid to respondent no.1.
7) Having so specifically pleaded, it is, therefore, found that
learned trial Court should have framed issue while considering the case
for grant of maintenance to satisfy itself, if there existed valid marriage
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between the parties. However, no such issue appears to have been framed
by learned trial Court while considering the application. Copies of
evidence on record further establish the case of petitioner no.1 as per his
pleadings as aforesaid, which case is found duly corroborated by the
evidence of his son where he has stated that petitioner no.1 had given
talaq to his mother on 8/6/2009 as per Muslim law in the presence of
competent witnesses and the copy of talaqnama has been received by
respondent no.1.
8) The learned Courts below without considering above said
evidence appear to have given much weight to the fact of petitioners not
producing on record original talaqnama. On the contrary, it is noted that
even in the cross-examination of petitioner no.1, nothing material has
been elicited doubting fact of his giving talaq to respondent no.1 wife. In
that view of the matter, I find it necessary to remit back the proceedings to
learned trial Court with direction to frame additional point with regard to
talaq, if any given by petitioner no.1 to respondent no.1 wife as pleaded
and to answer the same accordingly on considering evidence, which is
already on record and if necessary, opportunity be given to both sides to
bring material on record.
9) In the circumstances, following order is passed :
The impugned judgment and order dated 4/9/2014 passed by
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learned Judicial Magistrate, First Class, Kamptee in Criminal Application
No.141/2009 and the impugned judgment and order dated 28/1/2016
passed by learned Additional Sessions Judge, Nagpur in Criminal Appeal
No.241/2014 are set aside. The matter is remitted back to learned trial
Court for re-considering the issue as aforesaid, preferably by 31/3/2017.
The parties to appear before learned trial Court on 19/12/2016.
10) Rule is made absolute in the aforesaid terms. No order as to
costs.
JUDGE
khj
