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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
Ravi Nath Tilhari, J.
Yagati Appa Rao - Appellant
Versus
Mallidi Satyanarayana Reddy - Respondent
Criminal Revision Case No. 1743 of 2006
Decided On : 06-05-2022
Constitution of India,1950 - Articles 14, 15, 21 and 13(1) European Convention on Human Rights - Article 6(2) - Criminal Procedure Code,1973 - Sections 397, 399, 125 - Indian Evidence Act, 1872 - Section 114 (e) and (f) - Uttar Pradesh Sales Tax Act, 1948 - Section 28-B - Negotiable Instruments Act, 1881 – 118 and 139 - General Clauses Act, 1897 Section 27 - Meaning of service by post - Grant of maintenance - Talaq how pronounced - Whether petitioner is a 'divorced wife'or 'wife'of respondent No.1 depending upon validity or otherwise of Talaq as claimed upon her, as per the Muslim Law - Respondent No.1 filed counter admitting his marriage with petitioner but without dowry - Respondent submitted that he took due care of disabled son (petitioner No.2 in maintenance petition), but it was due to negligence of petitioner that disease of son increased - Petitioner and her mother gave criminal complaints against respondent and when respondent advised petitioner not to visit her mother petitioner did not accede to request - A woman, who is constrained to leave marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in similar manner as she would have lived in house of her husband. The grant of maintenance has to be adequate so that she can live with dignity. She cannot be compelled to become a destitute or a beggar. (Para 62)
Finding of the Court: There can be no pronouncement of talaq, contrary to Mahomedan Law, orally, it can also not be in the form of writing. Talaq in written form, 'talaq name' be it a record of fact of an oral talaq or be the deed by which talaq is effected, must also be by observing the pre-conditions of talaq, i.e., after arbitration or reconciliation by their arbiters, one each from the families of husband and wife respectively and for reasons, as also with due observance of mode of pronouncement of talaq i.e., not in one sentence saying 'talaq, talaq, talaq' but with duly following requisite time gap amongst all three pronouncements - Pronouncement law, with due observance of required time gap amongst three pronouncements has not been proved by any evidence, oral or documentary - endorsement of refusal, on registered envelop, although raises primary presumption that official acts have been regularly performed or/and common course of business has been followed, but such presumption under Section 114 (e) and (f) of Indian Evidence Act is only a rebuttable presumption - Such primary presumption was rebutted on evidence of petitioner as PW 1 and witness PW 2, that neither there was service nor there was refusal to receive registered post - Respondent not having adduced any other evidence, except endorsement on registered envelop, failed to prove service of registered envelop as also talaqnama on petitioner.
Result: Revision is allowed
JUDGMENT :
Heard Sri Raja Reddy Koneti, learned counsel for the petitioner and Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor for the 2nd respondent/State.
2. There is no representation for the respondent No.1, inspite of service with respect to which the proof of service was filed vide U.S.R.No.66325/2021.
3. The petitioner, along with her son filed a Miscellaneous Petition No.4 of 2003 in the Court of Junior Civil Judge-cum-Judicial First Class Magistrate, Ponnur under Section 125 of the Code of Criminal Procedure 1973 (in short Cr.P.C.) praying to direct the respondent/husband to pay Rs.2000/- per month to both the applicants, towards maintenance. It was filed inter alia on the averments that the petitioner (petitioner No.1 in the maintenance petition) is the legally wedded wife of the respondent No.1. The marriage took place on 02.04.2000. The respondent neglected and refused to maintain without any cause for no fault or disability on the part of the petitioner, who is not able to maintain her.
4. The respondent No.1 filed counter admitting his marriage with the petitioner but without dowry. The respondent submitted that he took due care of the disabled son (petitioner No.2 in the maintenance petition), but it was due to the negligence of the petitioner that the disease of the son increased. He tried to bring them back but of no avail in spite of mediations of the elders and Jumma Masjid Mosque committee, Pusuluru. The petitioner and her mother gave criminal complaints against the respondent and when the respondent advised the petitioner not to visit her mother the petitioner did not accede to the request. The respondent No.1 pleaded talaq, vide Talaqnama upon the petitioner as per Muslim Law and that the Talaqnama was sent to the petitioner vide registered post along with demand draft of Rs.315/-, which was received back with remarks 'Refused'. The petitioner was thus not entitled for any maintenance.
5. The petitioner examined herself as PW.1 and examined PWs.2 and 3 and marked Ex.P1 to prove her case. The respondent No.1 examined himself as RW.1 and examined RWs.2 and 3, the said arbiters and marked Exs.R1 to R4 in support of his case.
6. The learned Judicial First Class Magistrate, Ponnur allowed the Maintenance Petition, granting monthly maintenance @ Rs.800/- each to the petitioner (wife) as also to the son from the date of the petition, with costs against the respondent vide judgment and order dated 29.12.2004.
7. The respondent No.1 filed Criminal Revision Petition No.36/2005 under Sections 397 and 399 Cr.P.C, challenging the judgment and order dated 29.12.2004. The First Additional Sessions Judge, Guntur partly allowed the revision vide judgment dated 07.07.2006 setting aside the part of the judgment dated 29.12.2004 whereby maintenance was granted to the petitioner, but maintaining the grant of maintenance to the son.
8. In the background of the above facts the present criminal revision case was filed by the petitioner/wife.
9. Sri Raja Reddy Koneti, learned counsel for the petitioner submitted that there was no valid Talaq as per the Muslim Law. There was no communication of the Talaqnama. As per the own case of the respondent No.1, the registered envelope was returned unserved. The petitioner continued to be the wife of the respondent No.1 and was not the divorcee.
10. Sri Raja Reddy Koneti next submitted that a divorced Muslim wife is also entitled to maintenance under Section 125 Cr.P.C. for her whole life unless she remarries, and it cannot be restricted to iddat period only.
11. Sri Soora Venkata Sainath, learned counsel for the 2nd respondent/State submitted that there was no illegality in the grant of maintenance to the petitioner by the learned Magistrate and its reversal by the Revisional Court cannot be sustained. He placed reliance on the judgment of Hon’ble the Apex Court in the case of Shamim Ara v. State of Uttar Pradesh and Another (2002) 7 SCC 518).
12. I have considered the submissio
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