Mohd Abdul Muneem, ... vs Smt.Shahanaz Sultana, ...
2022 Latest Caselaw 4400 Tel

THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                    CRL.R.C.No.516 OF 2016
JUDGMENT:

This criminal revision case under Sections 397 and 401

Cr.P.C., is directed against the order dated 20.11.2015 in M.C.No.1

of 2013, on the file of the Family Court-cum-V-Additional

Sessions Judge, Mahabubnagar, wherein the said maintenance case

filed by 1st respondent-wife under Sections 3 and 4 of the Muslim

Women (Protection of Rights on Divorce) Act, 1986 (for short 'the

Act') was allowed in part directing the petitioner-husband to pay an

amount of Rs.5 lakhs to her within two months from the date of

order and further directing the petitioner to return the jahez articles

2 to 16 as per Ex.P-1 to the 1st respondent-wife within two months

from the date of order.

2. Heard learned counsel for the petitioner-husband and learned

counsel for the 1st respondent-wife. Perused the material on record.

3. The 1st respondent, who is wife of the petitioner, filed

petition under Sections 3 and 4 of the Act seeking to award a

reasonable and fair provision for future of the 1st respondent in

a sum of Rs.10 lakhs from the petitioner. It is stated by the

1st respondent in the petition filed in support of the maintenance

case that her marriage with the petitioner was performed on

13.04.2006 as per the customs prevailing in the muslim community

and at the time of marriage, her mother gave an amount of

Rs.1 lakh to the petitioner towards dowry and Rs.50,000/- for

purchase of bike and also presented jahez articles worth

Rs.2,33,000/-. The marriage was performed by incurring

Rs.6 lakhs, which included the dinner and function hall expenses.

The petitioner and 1st respondent led happy marital life for about

three years. Thereafter, the petitioner started neglecting and

ill-treating the 1st respondent by demanding her to bring additional

dowry and even threatened her that if she did not bring the same,

he would perform second marriage.

4. It is further stated that the 1st respondent was necked

out from the matrimonial house and later the petitioner filed

O.S.No.1 of 2010 for dissolution of marriage on the ground

that the 1st respondent was suffering from depression.

The 1st respondent filed M.C.No.15 of 2010 before the Family

Court, Mahabubnagar and the said maintenance case was allowed

by judgment dated 26.10.2010 directing the petitioner herein to pay

maintenance of Rs.2,000/- per month. During the pendency of the

said proceedings, the petitioner gave customary divorce to the

1st respondent on 03.08.2010, as per muslim law, and obtained a

certificate from the A.P. State Wakf Board on 12.08.2010.

5. The petitioner filed counter in the maintenance case

admitting the marriage with the 1st respondent and that he is a

government servant, but denied to have earning more than

Rs.25,000/- per month. He admits that the 1st respondent filed

M.C.No.15 of 2010 before the Family Court and also admits that

he filed a suit for dissolution of marriage against the 1st respondent

and that he obtained customary divorce as per muslim law. It is

further stated by the petitioner that the 1st respondent-wife is

having sufficient properties and her mother is a Government

servant, whereas he is having an old aged mother and one

handicapped sister who are dependant on him, besides second wife

and small children.

6. In order to prove her case, 1st respondent-wife examined

herself as P.W.1 and also examined PWs.2 and 3 on her behalf and

marked Exs.P-1 to P-12. The petitioner-husband examined himself

as R.W.1 and no documents were marked on his behalf.

7. After hearing both sides and upon appreciating the evidence

on record, both oral and documentary, the learned Judge, Family

Court allowed the maintenance case in part granting Rs.5 lakhs as

under:

         i.     Rs.1,50,000-00 towards item No.1 gold .
         ii.    Rs.1,00,000-00 towards net cash presented to
                respondent
         iii.   Rs. 50,000-00 towards purchase of bike
         iv.    Rs. 25,000-00 towards meher amount
         v.     Rs.1,75,000-00 towards marriage expenses including
                dinner.

The learned Judge, Family Court directed the petitioner-husband to

pay the above amount to the 1st respondent within two months from

the date of order and further directed the petitioner to return the

jahez articles 2 to 16 as per Ex.P-1 to the 1st respondent herein

within two months from the date of order. Dissatisfied with the

same, the petitioner-husband preferred the present revision case.

8. Learned counsel for the petitioner submits that the court

below placed burden on the revision petitioner that he has not

adduced proper evidence to prove that he has not received

Rs. 1 lakh and Rs.50,000/- for purchase of bike instead of

observing that the burden is on the 1st respondent-wife to prove the

same. The court below failed to appreciate that the petitioner also

contributed for the marriage expenditure. Considering the same, he

prayed this court to set aside the orders of the court below.

9. Per contra, learned counsel for the 1st respondent submits

that the court below has properly appreciated the evidence on

record and had rightly granted the amount stated above and the

order of the court below does not suffer from any illegality and

prayed to sustain the order. In support of his submissions,

he relied on the decisions of the Hon'ble Apex Court in DANIAL

LATIFI V. UNION OF INDIA1 and of the Kerala High Court in

MUNHI MOHAMMED v. A.P.SAJITHA AND OTHERS2.

10. After considering the submissions of both the learned

counsel and after upon perusal of the material on record, the point

that arises for consideration is - whether the order of the court

below needs interference?

2001 AIR SC 3958

2014(1) KERALA 687

11. It is seen from the evidence of P.W.1, she got issued Ex.P-1

legal notice to the petitioner-husband claiming jahez articles and

other amounts. The petitioner admitted that the meher amount of

Rs.25,000/- is with him and he is ready to return the same and item

Nos.2 to 16 are available with him and he is ready to hand over

the same. He denied item Nos.17 to 20 to be in his possession.

Item No.1 shown in Ex.P-1 is gold worth Rs.1.5 lakhs given to the

petitioner and he never denied the same.

12. The evidence further of P.W.1 further discloses that the

1st respondent has given Rs.1 lakh towards dowry and Rs.50,000/-

towards purchase of motor bike and they incurred expenditure of

Rs.6 lakhs towards dinner and rent for the function hall. No bills

are produced by P.W.1 towards incurring the said expenditure.

However, the evidence of P.W.2, who is mother of P.W.1,

corroborated the evidence of P.W.1 about presentation of dowry

of Rs. 1 lakh cash and Rs.50,000/- towards purchase of motor bike.

P.W.2 flatly denied the suggestion that she has not presented Rs.1

lakh and Rs.50,000/- towards purchase of motor bike

besides jahez articles worth Rs.2.33 lakhs. However, the court

below believed the evidence of P.Ws.1 and 2 about presentation of

Rs.1 lakh and Rs.50,000/- towards purchase of motor bike. So far

as the expenditure incurred towards marriage, the court below

keeping in view the facts and circumstances of the case, held that

the 1st respondent-wife is entitled to Rs.1,75,000/- towards

marriage expenses including dinner .

13. The learned counsel for the 1st respondent submits that as per

Sections 3 and 4 of the Act, a divorced woman is entitled for

maintenance from her husband and also entitled to recover her

wedding presents and dowry and the court below failed to

consider the same and also failed to award a reasonable and fair

maintenance beyond the iddat period. He relied on the decision of

the Apex Court in DANIAL LATIFI's case (1 supra), wherein it

was held as under:

"While upholding the validity of the Act, we may sum up our conclusions:

1) a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.

2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.

3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India".

14. In the instant case, the court below at para 12 of the

impugned order observed that M.C.15 of 2010 filed by the 1st

respondent-wife was disposed of granting maintenance of

Rs.2,000/- per month and so also O.S.No.1 of 2010 filed by the

petitioner herein was also disposed of granting divorce. It appears

the petitioner had taken a stand that he gave customary divorce on

03.08.2010 in the maintenance case. The court below, thus, held

that the petition seeking lumpsum maintenance from the petitioner

was not maintainable as the 1st respondent failed to have exercised

her option to proceed under Section 125 Cr.P.C or the under the

Act, pending maintenance proceedings. Accordingly, the court

below held that the petition was not maintainable since monthly

maintenance was awarded to her under in M.C.No.15 of 2010.

I, therefore, do not find any justifiable ground to interfere with the

said finding at this stage.

15. It is settled principle of law that this court, while exercising

revisional jurisdiction, cannot re-visit the entire evidence and has to

see whether there is any perversity in the judgment of the court

below while appreciating the evidence. The revisional court can

interfere only if there is any illegality in the order or there is

material irregularity in the procedure or there is error of

jurisdiction.

16. Having regard to the facts and circumstances of the present

case and considering the judgment of the court below which is

based on proper appreciation of evidence, both oral and

documentary, this court is of the opinion that the court below had

rightly awarded the amount of Rs.5 lakhs under different heads

mentioned in the impugned order. The said order did not suffer

from any infirmity and there is no perversity in the said order and

the same does not call for any interference by this court.

17. In the result, the criminal revision case is dismissed.

18. Miscellaneous petitions, if any, pending shall stand closed.

_______________________ A.SANTHOSH REDDY, J 06.09.2022 Lrkm