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High Court Of Calcutta
MALAY KUMAR BASU
SAHEDA KHATOON - Appellant
Versus
GHOLAM SARWAR - Respondent
C. R. R. 608 Of 2002
Decided On : 04/12/2002
MAINTENANCE - SECTION 125, CR. P. C. - MAINTENANCE TO WIFE - DIVORCE - MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - SECTION 3 - APPLICABILITY - MAINTENANCE TO DIVORCED WIFE - CONDITIONS - ORAL EVIDENCE - PROOF OF DIVORCE - INSUFFICIENT EVIDENCE - LEGAL MAINTAINABILITY OF APPLICATION UNDER SECTION 125, CR. P. C. - NOT AFFECTED - ENTITLEMENT TO MAINTENANCE - MONTHLY INCOME OF HUSBAND - DETERMINATION - QUANTUM OF MAINTENANCE - 1/5TH OF INCOME - REASONABLE RULE - AWARD OF MAINTENANCE - RS. 1500/- PER MONTH - ARREARS OF MAINTENANCE - PAYMENT IN FIVE CONSECUTIVE MONTHLY INSTALMENTS.
Fact of the Case:
The petitioner-wife filed a Misc. Case No. 136/99 under Section 125, Cr. P. C. praying for an award of maintenance in her favour against her husband, the O. P. She claimed that she was married to the O. P. on 14th Oct. 1993 according to the Muslim rites and they lived as husband and wife for about two years after the marriage was consummated. However, the husband started torturing her both physically and mentally. One day, when she was in an advanced stage of her pregnancy, the O. P. mercilessly assaulted her and kicked her on her abdomen. As a result, she had to be admitted into a Nursing Home and operated upon, and she gave birth to a dead child. Thereafter, the O. P. drove her out from his house, compelling her to take refuge in her father's house. The petitioner made several attempts through the village panchayat to effect a settlement between them so that the husband might take her back, but it failed due to the adamant attitude of the husband. Hence, she filed the present petition for maintenance before the Court below, as she had no independent source of income, whereas her husband was a businessman and earned about Rs. 200/- per day from such business.
Finding of the Court:
The Court found that the petitioner-wife was entitled to maintenance from her husband under Section 125, Cr. P. C. as the husband had failed to prove his alleged divorce. The Court held that the evidence adduced by the husband was insufficient and unsatisfactory and miserably fell short of the standard of proof which is required in such a case. The Court further held that the husband's statement in his written objection that he divorced the wife on 11/04/1999 could not be taken to show that the fact of such alleged divorce was communicated to the wife through the averments in his pleadings.
Issues: 1. Whether the husband had successfully brought home his story of divorce to establish the legal maintainability of the application under Section 125, Cr. P. C.? 2. Whether the petitioner-wife had any independent source of income? 3. Whether the husband was employed and if so, how much he earned in a month?
Ratio Decidendi: 1. The Court held that the husband had failed to prove his alleged divorce. The evidence adduced by the husband was insufficient and unsatisfactory and miserably fell short of the standard of proof which is required in such a case. The Court further held that the husband's statement in his written objection that he divorced the wife on 11/04/1999 could not be taken to show that the fact of such alleged divorce was communicated to the wife through the averments in his pleadings. 2. The Court held that the petitioner-wife had no independent source of income and had to live in the family of his father being dependent on him. 3. The Court held that the husband was employed and earned approximately Rs. 8000/- per month.
Final Decision: The Revisional Application was allowed and the impugned order of the Court below was set aside. The husband- O. P. was directed to pay to the petitioner-wife a sum of Rs. 1500/- every month. This order was to take effect from the date of application filed by the wife under Section 125, Cr. P. C. filed before the Court below. The O. P.-husband was further directed to pay such monthly amount of maintenance by postal Money Order to the present address of the petitioner after deducting the M. O. costs therefrom. As regards the arrears of maintenance, the O. P. was to make payment of the same in five consecutive monthly instalments commissioning from the month of June 2002.
( 1 ) THIS Revision Application is directed against the order dated 21/03/2001 passed by the learned Principal Judge, Family Court, Calcutta whereunder the learned Judge dismissed the Misc. Case filed by the petitioner-wife praying for maintenance against the O. P.-husband. It may be mentioned here that the O. P. has not entered his appearance in spite of repeated calls even though he has received the notice of this Revisional Application in due time (vide order sheet dated 12th April, 2002 ).
( 2 ) THE petitioner-wife filed this Misc. Case No. 136/99 under Section 125, Cr. P. C. praying for an award of maintenance in her favour against her husband, the O. P. Her case was that she was married by the O. P. on 14th Oct. 1993 according to the Muslim rites and they lived as husband and wife for about two years after the marriage was consummated and during this period the petitioner conceived. But the husband started torturing her both physically and mentally. One day, when she was in advanced stage of her pregnancy, the O. P. mercilessly assaulted her and kicked her on her abdomen. As a result she had to be admitted into a Nursing Home and operated upon and she gave birth to a dead child. Thereafter the O. P. drove her out from his house when she became compelled to take refuge in her father's house. Since thereafter a good number of attempts were made through village panchayat to effect a settlement between them so that the husband might take her back but it failed due to the adamant attitude of the husband and in this way the petitioner has been compelled to live at the mercy of her parents and she has been finding it difficult to have her both ends met. Hence she has preferred the present petition for maintenance before the Court below, as she has no independent source of income, whereas her husband is a businessman and earns about Rs. 200/- per day from such business.
( 3 ) THE petition was contested by the O. P.-husband by filing a written objection where he denied the material allegations while admitting that the petitioner was his married wife. His further case was that he divorced the petitioner by giving Talak to her on her demand in his presence and in the presence of several witnesses of the local panchayat. As the petitioner refused to stay with him and her father told him to give Talak to her daughter, he divorced her by giving three Talaks. The petitioner thus being a divorced wife will not be entitled to get maintenance under Section 125, Cr. P. C. as claimed and the petition is not maintainable under the law.
( 4 ) IN view of such contention of the husband O. P. the Ld. Judge, Family Court, took up the issue of legal maintainability of the application and came to the finding that the petitioner being found to be the divorced wife of the O. P. was not entitled to any relief under Section 125, Cr. P. C. and her case was to be governed under the provisions of Section 3 of the Muslim Women (Protection of Right on Divorce) Act, 1986. In coming to such a conclusion what weighed with the Ld. Judge is the oral evidence of the O. P. Ws. 1 and 2 and the documentary evidence adduced by the O. P. viz. / the Exbt. A and A (1 ). The Ld. Judge has observed as follows. "the opposite party has categorically stated in his evidence that he gave the petitioner Talak in April about two years back and he has filed the affidavit and Talak nama (Exbt. A) and (A/1) O. P. W. 2 Mazboor Rahaman has also stated in his evidence that the opposite party gave Talak to the petitioner in a meeting of the panchayat. The petitioner's father demanded Talak from the opposite party in the said Panchayt meeting. . . . . . . . . . It transpires from Exbt. A and affidavit sworn before the Notary Public that on 11-6-1999 at about 10. 00 a. m. the meeting of the local people was called by Saheda Khatoon where she and her parents demanded Talak from the opposite party and so he pronounced Tin Talak in presence of witness which they happ
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