Delhi High Court
Irfana & Anr. vs Ayyub Khan on 14 December, 2015
Author: Suresh Kait
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 14th December, 2015
+ CRL.M.C. 483/2009
IRFANA & ANR. ..... Petitioners
Represented by: Mr. Haneef Mohammad,
Adv.
versus
AYYUB KHAN ..... Respondent
Represented by: None.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Vide the present petition, petitioners seek directions thereby
setting aside the order dated 12.02.2008 passed by ld. Trial Court
whereby the petition under Section 125 Cr.P.C. filed by the
petitioner no. 1 was dismissed.
2. Further seeks directions thereby modifying the order dated
12.08.2008 passed by the ld. Sessions Court in Crl. Appeal No.
18/2008 whereby the Appellate Court has awarded an amount of
Rs.1,000/- in favour of the petitioner no.2, however granted nothing
to petitioner no. 1.
3. Notice in the instant petition was issued vide order dated
18.02.2009. Thereafter, Mr. Mukesh Kumar and Mr. Badridas,
Advs. appeared on behalf of the respondent on 15.01.2010 and were
directed to file the reply to the instant petition. Accordingly, the
reply was filed, which is on record.
4. Order sheets reveal that none appeared on behalf of the
respondent on the last four consecutive dates. So is the position
today. Accordingly, this Court is constrained to proceed with the
matter.
5. It is stated in the instant petition that the marriage of
petitioner no. 1 was solemnized with the respondent on 04.12.1999
as per the Muslim customary. However, she was compelled to
leave the matrimonial home on 05.06.2000 due to continuous
cruelties and harassment being made to her by the respondent and
his family members on account of demand of dowry and that too
when she was at the advanced stage of pregnancy. Thereafter on
24.08.2000, one male child, i.e., petitioner no. 2 was born out of the
said wedlock.
6. In the month of February, 2002 petitioner no.1 filed a petition
under Section 125 Cr.P.C. claiming thereby the maintenance for
herself and for her child, i.e., petitioner no.2 along with an
application seeking interim relief. Respondent filed his written
statement thereto alleging therein that he had divorced petitioner
no. 1 and denied the paternity of petitioner no. 2.
7. Ld. Trial Court vide its order dated 30.06.2003, directed the
respondent to pay an amount of Rs.1,000/- per month (Rs.500/-
each to both the petitioners). Thereafter, the petitioner no.1 filed
her evidence on affidavit and was cross-examined by the
respondent. On perusal of the evidence on record, it is revealed that
respondent failed to lead any evidence despite opportunities granted
to him by the ld. Trial Court. Accordingly, his right to lead
evidence was closed vide order dated 16.10.2006. However, ld.
Trial Court dismissed the petition filed by the petitioner holding
therein that the contents of the petition could not be proved as
petitioner no. 1 herself did not support her affidavit tendered in
examination in chief and denied having knowledge of its contents.
Moreover, the petitioner failed to establish on record the reasonable
ground for living away from the company of the respondent or any
evidence regarding the cruelty committed upon her by the
respondent or his family members. She also could not establish that
petitioner no. 2 was born from the wedlock as the paternity was
specially being denied by respondent in his reply. Thus, it was
recorded there was no such material on record to allow the aforesaid
petition. Accordingly, claim of the petitioners was dismissed vide
order dated 12.02.2008.
8. Being aggrieved, petitioner challenged the same in Crl.
Appeal No. 18/2008. Same was disposed of vide order dated
12.02.2008 and the Appellate Court awarded maintenance of
Rs.1,000/- per month for minor son, i.e., petitioner no. 2 and
disallowed the request for grant of any maintenance in favour of the
petitioner no.1.
9. Undisputedly, the marriage had taken place between
petitioner no.1 and the respondent on 04.12.1999. The respondent
had taken a ground in his written statement that he had divorced the
petitioner no.1. However, neither he was able to prove this fact nor
any suggestion was put to petitioner no.1 in her cross-examination.
Even there was a contradictory stand taken by the respondent in his
written statement as in Para 8, he alleged that he had given divorce
to the petitioner no. 1 on 20.08.2001, however, in Para 9 of reply on
merits, he alleged that he had gone to Aligarh to bring petitioner
no.1 back to the matrimonial home. He even failed to prove that
petitioner no. 1 was having any source of income or she was an
earning member. Merely retaining a mobile is not enough to prove
that petitioner no.1 is not suffering from starvation as observed by
ld. MM.
10. It is alleged by the petitioner no.1 that she was subjected to
cruelty and harassment for demand of dowry at the hands of
respondent and his family members. In her cross-examination she
stated that her father gave an amount of Rs.10,000/- as dowry to
respondent as demanded by him. However, no suggestion was put
to the petitioner no.1 that no cruelty of any nature was ever
committed upon her either by the respondent or any member of his
family. However, during cross-examination, petitioner no. 1 shown
her willingness to go with the respondent from the Court, but no
response had come from the respondent, which establishes that the
respondent was not agreeable to live with the petitioners.
11. Respondent no. 2 has admitted that petitioner no. 1 left his
company on 05.06.2000. But the fact is that the petitioner no. 2
was born on 24.08.2000. Thus it establishes that she was at the
advanced stage of pregnancy at the time when she left the
matrimonial home. Moreover, case under Section 498A/406/34
IPC is pending adjudication against the respondent.
12. The facts recorded above establish that there were sufficient
reasons with petitioner no. 1 to leave her matrimonial home. As
stated by the petitioner in the petition filed under Section 125
Cr.P.C. that respondent was earning an amount of Rs.15,000/-.
However in the present petition, petitioner has prayed for an
amount of Rs.5,000/- and Rs.2,500/- per month as maintenance to
her and her son, i.e., petitioner no. 2.
13. Though, the respondent no. 2 has stated in his written
statement that he was working at a shop and was earning an amount
of Rs.2,000/- per month, it is undisputed fact that the written
statement was filed on 04.12.2002. Thus, even if it is presumed that
he was earning minimum wages, even at that point of time he was
earning Rs.7,000 to Rs.8,000/- per month.
14. The main ground taken by the respondent in his reply to the
petition that petitioner no.1 is married to one Harun has been denied
by the petitioner no.1. Moreover, the respondent has failed to prove
this fact on record.
15. Therefore, keeping in view the facts and circumstances of the
present case and the fact that respondent failed to establish that
petitioner no.1 is an earning member, respondent is directed to pay
an amount of Rs.3,000/- and Rs.2,000/- in favour of petitioner no. 1
and petitioner no. 2 respectively w.e.f from the date of filing of the
present petition, i.e., February, 2009.
16. Consequently, order dated 12.02.2008 passed by the ld. Trial
Court is set aside and order dated 12.08.2008 passed by the
Appellate Court is modified.
17. Accordingly, the present petition is allowed.
18. Dasti.
SURESH KAIT, J
DECEMBER 14, 2015
jg
