Bombay High Court
Gausoddin Valiahmad Pirjade vs Bismilla Gousoddin Perjade & Ors on 22 September, 2016
Bench: V.K. Jadhav
1 CRI APPLN 992.2005.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 992 OF 2005
1. Gousoddin Waliahmad Peerjade,
Age: 39 years, Occ: Labour,
R/o. Jakekur, Tq. Omerga,
Dist. Osmanabad. ..APPLICANT..
(Org. Petitioner/Opponent)
VERSUS
1. Bismilla divorced W/o Gousoddin Peerjade,
Age: 33 years, Occ: Household,
R/o. Achaler, Tq. Omerga,
Dist. Osmanabad.
2. Billal S/o Gousoddin Peerjade,
Age: 7 years, Minor U/g of at present
Real Mother Bismilla i.e Respondent No. 1
3. State of Maharashtra.
Copy to be served on P.P.
High Court Bench at
Aurangabad. ...Respondents..
(Org. Respondents)
...
Advocate for Applicant : Mr G R Syed
Advocate for Respondents 1,2 :Mr A A Mukhedkar h/f
Mr G S Patil/L C Patil
APP for Respondent 3 : Mr A R Kale
...
CORAM : V.K. JADHAV, J.
Dated: September 22, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and order passed
by the Judicial Magistrate First Class, Omerga dated
2 CRI APPLN 992.2005.odt
12.4.2002 in Cri. Misc. Appln. No.16/2001 and
confirmed by the Additional Sessions Judge, Omerga by
order dated 30.10.2004 in Criminal Revision Application
No.12/2004 with certain modifications, original
respondent husband in the maintenance proceedings
preferred this Criminal Application.
2. Brief facts, giving rise to the present criminal
application are as follows :-
Original applicant no.1 Bismilla married with
opponent husband 10 years prior to 2001 and
applicants no.2 and 3 are their son born to them from
their marital wedlock. She was treated well for about
one year after marriage, thereafter, subjected to ill-
treatment on account of unlawful demand of certain
cash amount of Rupees 25,000/- for construction of the
house by the opponent-husband. Even after birth of
applicant no.2 Sohel, on one occasion opponent
husband poured kerosene on her and attempted to set
her on fire on account of non-fulfillment of said
demand. Thereafter, certain amount was paid to the
opponent-husband by the parents, however, on
3 CRI APPLN 992.2005.odt
20.6.2000 opponent husband driven out her from his
house alongwith her children for non-fulfillment of
unlawful demand of cash amount. Thereafter, on two to
three occasions, efforts for compromise were made
however, the opponent husband did not give any positive
response. Despite having sufficient means, the opponent
husband has refused and neglected to maintain the
applicant-wife and his children. The applicant-wife
alongwith her children thereafter constrained to file
Criminal M.A No.16/2001 for grant of maintenance @
Rs.1,500/- each.
The opponent husband has strongly resisted the
said application by filing his say at Exh.10. He has
denied the entire averments made in the application.
He has admitted the relations, however, stated that in
the year 1998 he gave Talaq to her. He has admitted
paternity of applicant nos. 2 and 3, however, it has
contended that, both sons are in his custody and they
are taking education at Murum and he is spending for
their education. It has also contended that the
applicant-wife left the house on her own choice and
4 CRI APPLN 992.2005.odt
therefore, she has no right to claim maintenance. It has
also contended that, oral Talaq was given to her in the
year 1998 and it was also communicated to her by
ordinary post as well as R.P.A.D., however, she has
refused to accept the said communication. Even
maintenance amount during Iddat period was also sent
to her by Money order and she has accepted the same.
It has further contended that, the applicant-wife has
filed the application to extract money and just to cause
harassment.
3. Both the parties lead their oral and documentary
evidence in support of their rival contentions. The
learned Magistrate by order dated 12.4.2002 partly
allowed the said application and thereby directed the
opponent-husband to pay Rs.1,000/- p.m. towards
maintenance of applicant no.1 wife and Rs.500/- p.m. to
minor applicant nos. 2 and 3. Being aggrieved by the
same, the opponent husband had preferred criminal
Revision Application No.12/2004 and the learned
Additional Sessions Judge, Omerga by order dated
30.10.2004 confirmed the order of maintenance passed
5 CRI APPLN 992.2005.odt
in favour of the applicant no.1-wife and applicant No.3
Bilal and set aside the order of grant of maintenance
passed in favour of applicant no.2 Sohel. Aggrieved by
the same, original applicant husband has preferred
present Criminal Application.
4. The learned counsel for the applicant submits
that, applicant has examined one Kazi before whom
divorce had taken place and the applicant-husband also
sent Meher amount to respondent-wife and the same
has been accepted by her. Learned counsel submits that
the Court below have not considered the provisions of
Section 3 of the Muslim Women (Protection of Rights on
Divorce) Act, 1986. The Courts below have also not
considered that both sons are staying with the
applicant-husband and he is spending for their
education.
5. Learned counsel for respondent-wife submits that
considering the oral and documentary evidence placed
on record both the courts below rightly held that
opponent-husband willfully refused and neglected to
6 CRI APPLN 992.2005.odt
maintain the applicants though having sufficient
means. There is no substance in the criminal
application and criminal application is thus liable to be
dismissed.
6. On careful perusal of the evidence as discussed by
the courts below in their respective judgments, it
appears that, there is enough evidence on record to
show that the applicant no.1-wife was subjected to ill-
treatment on account of non-fulfillment of unlawful
demands. Consequently, the applicant no.1-wife has just
cause to live separate and claim maintenance. The
applicant-wife has also examined her brother and one
independent witness. It has been brought on record that
on one or two occasions efforts on her part for
cohabitation were made, but opponent-husband has not
given response to it. It is a part of the record that
opponent-husband has not paid any amount to the
applicants even during the pendency of proceedings. He
has only stick up to his defence that he has given Talaq
to the applicant-wife and, therefore, he is not liable to
pay the maintenance.
7 CRI APPLN 992.2005.odt
7. The applicant wife adduced the evidence to show
that she cohabited with her husband till 20.6.2000 and
thereafter she was driven out alongwith her minor
children by the opponent-husband from his house. It is
the case of opponent-husband that he pronounced
traditional Talaq first on 29.7.1998 and again gave Talaq
in presence of Kazi and two witnesses. Though,
opponent has produced on record xerox copies of the
said Shiyanama, but, he has failed to prove the same.
The learned judge of the trial court has rightly observed
that burden is on the opponent husband to prove that
he gave talaq to her and opponent husband has failed to
discharge said burden properly. The learned Additional
Sessions Judge also upheld said finding. I do not find
any reason to interfere in those concurrent findings
recorded by both the courts below. The learned
Additional Sessions Judge in the light of the
observations made in Dagadu Chotu Pathan Vs.
Rahimbi Dagadu Pathan reported in 2002 (3) Mh.L.J.
Page 602 rightly observed that, opponent husband has
failed to establish valid Talaq given to the applicant wife
Bismilla.
8 CRI APPLN 992.2005.odt
8. In view of the above discussion, I do not find any
merit in the criminal application. Hence, order.
O R D E R
I. Criminal application is hereby
dismissed. Rule discharged.
II. Criminal Application stands disposed
off.
sd/-
ig ( V.K. JADHAV, J. )
...
aaa/-
