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2017 Supreme(Del) 311
IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, J.
Gauhar Hussain - Petitioner
Versus
Mumtaz Ara - Respondent
Crl.M.C. 93 of 2010 & Crl.M.As.2052, 6786 of 2010, 13010, 10375 of 2015 & 2411 of 2016
Decided On : 30-01-2017
For the Petitioner: Mr. Ravi Prakash Mehrotra, Mr. Vibhu Tiwari
For the Respondent: Mr. Ashok Gurnani
The main legal point established in the judgment is that an application under Section 127 Cr.P.C. is not in the nature of review before the same Court and requires a change in circumstances for its entertainment.
Headnote:
Section 125 Cr.P.C. - Maintenance - 1. A petition under Section 125 Cr.P.C. was filed by the respondents Mumtaj Ara and Tania Gauhar - 2. The petitioner thereafter filed an application under Section 127 Cr.P.C. contending primarily that the finding of the learned Trial Court on the form of divorce between the parties was misreading of the Muslim Personal Law and the divorce between the parties was valid in the eyes of law - 3. The order dated 27th October, 2007 granting interim maintenance to the respondent by the learned Metropolitan Magistrate has not been challenged by the petitioner before any higher forum and thus the said interim order has attained finality - 4. Section 127 Cr.P.C. reads as under: - 5. The contents of the application under Section 127 Cr.P.C. are that the learned Trial Court was misled by the form of divorce and misread the requisites of valid divorce - 6. Learned counsel for the petitioner referring to sub-Section 3(b) of Section 127 Cr.P.C. contends that when a woman has been divorced by her husband and she has received whether before or after the date of the said order the whole of the sum which under any customary or personal law applicable to the parties was payable on such divorce she has no right to maintenance thus such an order should be cancelled - 7. Petition and Crl.MAs. 2052 & 6786 of 2010 are dismissed. The other remaining applications are also dismissed as infructuous.
Fact of the Case:
A petition under Section 125 Cr.P.C. was filed by the respondents Mumtaj Ara and Tania Gauhar, daughter of the petitioner and respondent. The petitioner filed an application under Section 127 Cr.P.C. contending that the divorce between the parties was valid in the eyes of the law.
Finding of the Court:
The court found that the order granting interim maintenance to the respondent had attained finality and the application under Section 127 Cr.P.C. was not maintainable as there was no change in circumstances warranting its entertainment.
Issues: The issues revolved around the validity of the divorce between the parties and the maintainability of the application under Section 127 Cr.P.C.
Ratio Decidendi: The court held that the application under Section 127 Cr.P.C. was not in the nature of review before the same Court and that there was no change in circumstances warranting its entertainment.
Final Decision: Petition and Crl.MAs. 2052 & 6786 of 2010 are dismissed. The other remaining applications are also dismissed as infructuous.
1. A petition under Section 125 Cr.P.C. was filed by the respondents Mumtaj Ara and Tania Gauhar, daughter of the petitioner and respondent. Vide order dated 27th October, 2007, learned Metropolitan Magistrate considering the rival contentions of the parties and the legal position on the issue directed the petitioner to pay interim maintenance of Rs.2500/- per month to each of the two respondents from the date of filing of the petition till its disposal. Learned Trial Court came to the conclusion as under:-
“……. Heard, the arguments on behalf of both the parties and perused the record. The main defence of the respondent is that as he had already pronounced ‘Talak’ on his wife, he is not liable to pay maintenance. In case 2007 (1) JCC 365 titled as Riyaz Fatima vs. Md. Sharif, Hon’ble High Court has held certain requisites for grant of divorce by Muslim man to his wife. The judgment holds that there are four pre-requisites for grant of divorce which are:
(1) Divorce must be for reasonable cause mandatory in holy Quran, husband to give evidence showing cause which compelled him to divorce his wife;
(2) Husband to prove proclamation of Talaq thrice in presence of witnesses.
(3) Proof of payment of dowry amount or observance of period of Iddat;
(4) Husband also to prove attempt for settlement/conciliation prior to divorce.
In view of the said judgment, the first pre-requisite is that divorce must be for reasonable cause and the husband has to give evidence showing the cause which compelled him to divorce his wife.
The respondent has to prove the payment of Dower and observance of period of Iddat. The husband has to prove that settlement/conciliation was attempted before granting of divorce and the same failed. The respondent has not mentioned of any such steps taken on his behalf granting of divorce. Respondent has admitted that Mehar has not been paid to the petitioner as matter is stated to be subjudice. Thus, the respondent has been able to prove only one of the pre-requisites that is no.2 as held by the Hon’ble High Court in the aforesaid case and he has failed on three other aspects.
In view of the various pronouncements of the Hon’ble High Court and Hon’ble Supreme Court divorce cannot be granted by a Muslim man to his wife with sole intention of avoiding provision of maintenance u/s 125 Cr.P.C. In this case, it is apparent that the alleged divorce has been granted only with the intention of avoiding maintenance as maintenance petition was filed on 25.1.2003 and thereafter the respondent allegedly divorced his wife on 7.12.2003 without assigning any reason and without attempting to go for any conciliation, such a divorce as has been held by Hon’ble Supreme Court and Hon’ble High Court is against the diktat of holy quran.
Hon’ble Madras High Court in Salim Basha vs. Mumtaz Begam, 1991 (1) RCR(Cri) 392, has held that where the husband has not given any evidence to the effect that there was a pre-divorce conference for settlement by two mediators, one chose by wife and the other by husband which was mandatory of Muslim Law, Talak was not valid.
Hon’ble Bombay High Court in Case no.(2004) Family Juris C.C. 209 (Bom) titled as Khannu Bi vs. Salim Rayaliwale has held that where a husband exercises his right to give Talak after grant of maintenance, it has to be presumed that divorce was given without any reason only to evade payment of maintenance and such a divorce is not valid divorce.
In view of the aforesaid judgments prima facie it appears that the alleged divorce having been granted by respondent to the petitioner without assigning any reason for the same and without undergoing any conciliation proceedings before granting of divorce is not as per Muslim Law and is therefore not a valid divorce.
Ld. Counsel for respondent/applicant has relied upon the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and judgment of Allahabad High Court in case no.1997 JIC 1080 (ALL) titled as Habid vs. 1st Additional C
