Bombay High Court
Ma;Saratbee Fakir Mohmad Shaikh vs Fakir Mohmad Faijoddin Shaikh on 28 November, 2016
Bench: V.K. Jadhav
1 CRI WRIT PET. NO.202.2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 202 OF 2005
1. Masaratbee W/o Fakir Mohmad Shaikh,
Age. 38 years, Occ. Household,
R/o. Gulab, Tq. Ausa, Dist. Latur.
2. Nijamoddin S/o Fakir Mohmad Shaikh,
Age. 16 years, Occ. Education,
U/g. Of his natural mother,
Petitioner No. 1. ...PETITIONERS
ig (Orig. Applicant)
Versus
Fakir Mohmad S/o Faijoddin Shaikh,
Age. 40 years, Occ. Centering Contractor,
R/o. Miskinpoora, retnapur Chowk, Near
House of Advocate Badade, Latur ...RESPONDENT
(Orig. Opponent)
...
Advocate for Petitioners : Smt Anuja Sarvade h/f Anjali
Dube
Advocate for Respondents : M L Dharashive
...
CORAM : V.K. JADHAV, J.
Dated: November 28, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and order passed
by the Judicial Magistrate First Class, Ausa dated
20.7.2004 in M.A. No.37/2003 to the extent of rejection
2 CRI WRIT PET. NO.202.2005.odt
of her application for grant of maintenance and further
common judgment and order passed by the Adhoc
Additional Sessions Judge, Latur dated 20.1.2005 in
Criminal Revision No.68/2004 preferred by the (present
petitioner) and Criminal Revision No.76/2004 preferred
by the (present respondent) approached to this court by
filing present criminal writ petition.
2.
Brief facts, giving rise to the present writ petition
are as follows :-
a] Petitioner no.1 and respondent are husband and
wife and petitioner no.2 is their son born to them out of
their marital wedlock. Their marriage was solemnized
17 years prior to filing of the application before the trial
court seeking maintenance. After marriage, respondent
no.1 and his family members started causing ill-
treatment to respondent on account of non-fulfillment of
certain demands. Even, after birth of petitioner no.2
respondent had not come to see her and newly born
baby. In spite of all these facts, petitioner no.1 stayed in
the house of respondent. However, respondent alongwith
his family members drove her out from the house in the
3 CRI WRIT PET. NO.202.2005.odt
night time and since then she is residing with her
parents. Respondent no.1 is not providing anything
towards maintenance. Respondent-husband has
sufficient means to pay maintenance. Thus, the
petitioner no.1 alongwith her son petitioner no.2 has
approached the court by filing M.A. No.37/2003
claiming maintenance @ Rs.1,500/- p.m. each as
maintenance.
b] Respondent-husband has strongly resisted the
application on various grounds. It has contended that,
petitioner no.1 cohabited with respondent till the birth
of petitioner no.2 and thereafter she started saying that
marriage was performed against her wish. In the year
1989 the petitioner no.1 left house of the opponent on
her own accord. At that time she took with her cash
amount of Rs.1,000/-, gold ornaments and cloths.
Respondent-husband has made many attempts to bring
her back for further cohabitation. However, she did not
return. In the year 1994-1995 petitioner had gone
abroad in Gulf country. After her return, respondent-
husband had made attempt to bring her back for
4 CRI WRIT PET. NO.202.2005.odt
cohabitation, however, petitioner no.1 had denied for the
same. Thus, on 17.4.2003 respondent no.1 gave her
divorce in presence of Nayab Kazi and two witnesses and
thus petitioner no.1 ceased to be his wife.
c] The petitioners as well as respondent led their oral
and documentary evidence in support of their rival
contentions. Learned Judicial Magistrate First Class,
Ausa by its impugned judgment and order dated
20.7.2004 partly allowed the application and thereby
directed the respondent-husband to pay maintenance @
Rs.5,00/- p.m. to petitioner no.2 alone and rejected the
claim of maintenance of petitioner no.1. Being aggrieved
by the same, petitioners have preferred criminal revision
no.68/2004 and respondent-husband also preferred
criminal revision no.76/2004. The learned Adhoc
Additional Sessions Judge, Latur by its impugned
judgment and order dated 20.1.2005 dismissed the
revision petition by confirming the order passed by the
learned Magistrate. Hence ,this writ petition.
5 CRI WRIT PET. NO.202.2005.odt
3. The learned counsel for the petitioner submits
that, respondent-husband has failed to prove that he
had given divorce to the petitioner no.1. Learned
counsel submits that, however, both the courts below
have erroneously come to the conclusion that
respondent-husband has not refused and neglected to
maintain petitioners. Learned counsel submits that,
petitioner no.1 wife has alleged and proved the unlawful
demand of cash amount made by respondent-husband.
Petitioner no.1 wife was subjected to ill-treatment on
account of non fulfillment of the said demand. Even
petitioner no.1 wife was driven out from the matrimonial
house on account of non fulfillment of the said demand
of the cash amount. Learned counsel submit that the
trial court has given unnecessary weightage to the
certain admissions given by the father of the petitioner
no.1. Learned counsel submits that trial court has
come to a wrong conclusion that petitioner no.1 had left
her matrimonial house on her own accord and that
respondent-husband has made several attempts to bring
her back. Learned counsel submits that, even the
respondent-husband has deposed that in the year 1992
6 CRI WRIT PET. NO.202.2005.odt
he had contracted/performed second marriage.
Learned counsel submits that, though parties are
Mohammedan, it is well settled that if the husband
performed second marriage then the same would be a
just ground for a wife to reside separately and claim
maintenance. Learned counsel submits that, only on
the basis of the suggestions given by respondent, courts
below held that petitioner no.1 wife was guilty of
desertion and further merely on the basis of certified
copy of the report in crime no.3028/2003 vide Exh.38,
held that since petitioner no.1 was found in possession
of unauthorized stock of petrol she is not a woman who
is unable to maintain herself. Learned counsel submits
that, respondent no.1 husband has failed in his duties
to maintain his wife and taken a false plea of Talaq and
in case, if the petitioner no.1 wife find it difficult to
maintain herself and indulged in some activities, which
are not warranted her application for maintenance
cannot be thrown out on the ground that she is able to
maintain herself. Learned counsel submits that orders
passed by the courts below are thus liable to be
quashed and set aside to the extent so far as rejection of
7 CRI WRIT PET. NO.202.2005.odt
application for maintenance filed by petitioner no.1.
4. Learned counsel for petitioners in order to
substantiate her contentions placed her reliance on the
following cases :-
1. Begum Subanu alias Saira Banu and
Another Vs. A.M. Abdul Gafoor reported in AIR
1987 SC 1103.
2. Shaikh Babbu Shaikh Suleman Vs. Rashida
Shaikh Babbu and Another reported in 2002 (2)
Mh.L.J. 495.
3. Saygo Bai Vs. Chueeru Bajrangi reported in
(2010) 13 SCC 762.
5. Learned counsel for respondent husband submits
that, respondent husband has proved the factum of
talaq by examining certain witnesses. Respondent
husband has examined witness no.2-Mukhtar Pathan in
whose presence the respondent husband has given
Talaq to petitioner no.1. Furthermore, respondent
husband has placed on record office copy of the notice
Exh.21 to show that on the same day of divorce a notice
was issued to the petitioner and intimation of divorce
was accordingly given to her. Learned counsel submits
that, fact of divorce is thus communicated to petitioner
8 CRI WRIT PET. NO.202.2005.odt
no.1 and respondent-husband has therefore duly proved
talaq given to petitioner no.1. Learned counsel submits
that therefore application u/s 125 of Cr.P.C. seeking
maintenance is not maintainable.
6. Learned counsel submits that, petitioner no.1 wife
left the company of respondent-husband without any
just cause. As per the admissions given by the witnesses
of petitioner no.1, respondent-husband treated well the
petitioner no.1 till birth of petitioner no.2 and as per
their own admissions she never cohabited with
respondent-husband thereafter. Learned counsel
submits that, the courts below have therefore rightly
come to the conclusion that it is the wife who is guilty
for desertion and she is not entitled for separate
maintenance since living separately without any just
cause. Learned counsel submits that, under the
Mohammedan law, second marriage is permissible and
therefore, same is not a ground available to the
petitioner-wife to reside separately and claim
maintenance. Learned counsel submits that, petitioner
no.1-wife is indulged in various activities and on one
9 CRI WRIT PET. NO.202.2005.odt
occasion she had gone abroad. Furthermore, crime was
also registered against her under the provisions of
Essential Commodities Act for selling Petrol
unauthorizedly. Both the courts below have therefore
rightly come to the conclusion that petitioner no.1-wife
in the instant case is able to maintain herself. Learned
counsel submits that, both the courts below have
recorded concurrent findings and accordingly rejected
the application claiming maintenance filed by petitioner
no.1. No interference is required.
7. Learned counsel submits that, so far as petitioner
no.2 is concerned, he had attained majority long back
and his application seeking maintenance is now liable to
be rejected.
8. Learned counsel in order to substantiate his
contention places his reliance on a case Sangita Arun
Mhasvade Vs. Arun Aba Mhasvade and another
reported in 1984 Cri L. J page 1524.
10 CRI WRIT PET. NO.202.2005.odt
9. On careful perusal of the impugned judgment and
order passed by the courts below and evidence adduced
by the parties, it appears that respondent-husband in
support of his claim of divorce has examined himself
and witness no.2 Mukhtar Pathan and also examined
two more witnesses and further produced copy of
Talaqnama Exh.25 and its translated copy at Exh.28.
Respondent-husband has also further places his
reliance on the notice giving intimation of divorce to the
petitioner no.1 at Exh.21. Both the courts below have
recorded concurrent findings that respondent-husband
has failed to prove the factum of divorce. By giving
reference to the observations made in a case of Dagadu
Chotu Pathan Vs Rahimbi Dagdu Pathan reported in
2002(3) Mh.L.J.602, the learned Magistrate has
observed that, an attempt at reconciliation between the
husband and wife by the arbitrators, one from the wife's
family and the other from the husband's. If the
attempts failed, Talaq may be effected. In other words,
an attempt at reconciliation by two relations, one ach of
the parties, is an essential condition precedent to Talaq.
Respondent No.1 has examined witness no.3 Khajakhan
11 CRI WRIT PET. NO.202.2005.odt
Pathan to show that respondent-husband made an
attempt for pre-divorce conciliation. Said witness is
friend of respondent- husband and he could not answer
most of the questions put to him during the course of
cross examination. Even, respondent-husband has
failed to state in his pleadings that, a pre-divorce
conciliation was failed and therefore, he left with no
other remedy but to give talaq to petitioner no.1. Both
the courts below have disbelieved the evidence of
respondent-husband on the point of pre-divorce
conciliation. Respondent-husband has failed to
discharge burden to prove pre-divorce conciliation and
thus the courts below have rightly recorded findings in
the negative and thereby held that respondent-husband
failed to prove talaq.
10. Petitioner no.1 has examined herself and given all
the details of the demands of the cash and ill-treatment
she was subjected to on account of the non-fulfillment
of the said demands. Petitioner no.1 has pleaded that
despite ill-treatment she resided at the house of
respondent-husband for a span of four months after
12 CRI WRIT PET. NO.202.2005.odt
birth of petitioner no.2. It is difficult to accept that after
birth of petitioner no.2 without any reason petitioner
no.1 wife started making a statement that she do not
want to stay with respondent-husband. It has come in
the evidence of the petitioner no.1 and also in the
evidence of her father that respondent-husband and his
family members drove her out from the matrimonial
home and since then she is residing with her parents. It
is not disputed that, respondent- husband had
performed second marriage. Both the courts below have
observed that, petitioner no.1 left the house on her own
accord and started residing with her parents without
any just cause. However, the fact that respondent-
husband had performed second marriage is sufficient
for a wife to reside separately and to claim maintenance
even though the parties are Mohammedan
11. In a case Begam Subanu (supra) relied upon by
learned counsel for the petitioners, the Supreme Court
has observed that, in case of Mohammedan though
husband can marry again under personal law, first wife
is entitled to claim maintenance and separate residence
13 CRI WRIT PET. NO.202.2005.odt
on that ground.
12. In a case Sk Babbu (supra) relied upon by learned
counsel for the petitioner, it is held that "the second
legally married wife if refused to live with her husband
on the ground that the husband is living with the first
wife, despite the offer from the husband to maintain her,
is enough to prove neglect and is entitled for
maintenance within the meaning of the second proviso
to sub-section (3) of Section 125 read with explanation
thereunder."
13. Learned counsel for respondent husband placed
his reliance in a case Sangita Mhasvade (supra)
wherein, in the facts of the said case, it is observed that,
wife on her own leaving matrimonial house and
therefore, she is not entitled to maintenance as husband
could not be said to have neglected or refused to
maintain her.
14. In the instant case, petitioner no.1-wife has
adduced satisfactory evidence before the Magistrate that
14 CRI WRIT PET. NO.202.2005.odt
after marriage she was subjected to ill-treatment on
account of non-fulfillment of certain demands and that
she has every right to claim maintenance by residing
separately since respondent-husband had performed
second marriage.
15. On careful perusal of the impugned judgment and
order passed by the courts below, it appears that,
undue weightage is given to registration of one crime in
the year 2003 against petitioner-wife for dealing
unauthorizedly in the business of petrol and kerosene.
It is observed by the courts below that, it cannot be said
that, petitioner-wife is unable to maintain herself. In
the instant case, respondent-husband has failed to
provide any maintenance to the petitioner no.1-wife.
Further, he had taken a plea of divorce which he could
not substantiate. Thereafter, admittedly, he had
performed second marriage. In such a situation, if, the
petitioner no.1-wife even though said crime in which
charges of the Essential Commodities Act has been
levelled against her are yet to be proved, it can not be
said that, petitioner no.1-wife is able to maintain herself
15 CRI WRIT PET. NO.202.2005.odt
as she indulged in the activities including some illegal
activities. Respondent-husband has failed to prove that
he has not refused and neglected to maintain petitioner-
wife even though she started residing with her parents.
It appears that, both the courts below have erroneously
rejected the application of the petitioner no.1-wife for
grant of maintenance.
16.
Thus, considering the income of the respondent-
husband and the standard of living of the parties to the
proceeding and considering the prices of the Essential
Commodities in the year 2003, it would be just and
proper if the respondent-husband is directed to pay the
maintenance to the petitioner no.1-wife @ Rs.500/- (Rs.
Five Hundred) p.m. Hence, following order.
O R D E R
I. Criminal Writ Petition is hereby partly
allowed.
II. The judgment and order passed by the
Judicial Magistrate First Class, Ausa dated
20.7.2004 in M.A. No.37/2003 and the
judgment and order passed by the Adhoc
16 CRI WRIT PET. NO.202.2005.odt
Additional Sessions Judge, Latur dated
20.1.2005 in Criminal Revision Petition
No.68/2004 & 76/2004 are hereby quashed
and set aside to the extent of rejection of
application for grant of maintenance filed by
the petitioner no.1-wife.
III. Criminal Application No.37/2003 is hereby
partly allowed and respondent-husband is
directed to pay maintenance @ Rs.500/- (Rs.
Five Hundred) each to both the petitioners
from the date of application.
IV. Needless to say that respondent- husband is
at liberty to file an application under the
provisions of Section 127 of the Code of
Criminal Procedure for cancellation of the
maintenance order passed in favour of the
petitioner no.2 on the ground that he has
attained majority during the pendency of this
criminal application.
V. Criminal Application accordingly disposed
off. Rule is made absolute in above terms.
( V.K. JADHAV, J. )
...
aaa/-
