Failure to prove the validity of divorce and the age of the minor son led to the entitlement of the respondent to maintenance under Section 125 of the Cr.P.C.

Amitav Kumar Gupta, J.

1. This revision application has been directed against the order dated 30.7.2011 passed in Maintenance Case No. 85 of 2009 by the learned Principal Judge, Family Court, Ranchi whereby the petitioner was directed to pay maintenance Rs. 3,000 per month to O.P. No. 2 and Rs. 1,500 per month to the minor son, O.P. No. 3-Md. Anjar. Md. Mokhtar Khan, learned Senior Counsel for the petitioner, has submitted that the award of maintenance to O.P. No. 2 by the Trial Court is against the provisions as the O.P. No. 2 was given divorce and she can claim the maintenance under the provision of Muslim Women (Protection of Rights on Divorce) Act, 1986. That the Trial Court has failed to appreciate the fact that petitioner has given talak to O.P. No. 2 by way of Khula, that under the Mohammadan Law talak by a way of Khula is given when a Muslim married lady asks for it forfeiting her rights to claim maintenance for Iddat period and Dainmehar, therefore, she is not entitled to any maintenance. Secondly it has been urged that the Court below erred in not considering the fact that O.P. No. 3 was a major son on the date of filing of the application and this plea has been taken by the petitioner in the Court below and Voter Identity Card was produced to show that he was aged about 18 years at that point of time; on the above facts it is contended that the impugned order is not sustainable in law or on facts.

2. Learned Counsel for the State has submitted that the dispute raised by the petitioner was considered by the Trial Court as it is evident from the discussion of the evidence and the materials on record. The Court held that there was no valid talak that O.P. No. 2 was not residing with the petitioner on the day talak was given as she had been driven out of the matrimonial home; that the Court below has recorded a finding that the petitioner could not produce any document in the Court below to show that O.P. No. 3 was a major, that the impugned order has been passed in accordance with law.

3. Heard. Perused the impugned judgment and materials on record. Admittedly O.P. No. 2-Razia Khatoon along with her minor son O.P. No. 3 namely Md. Anjar, had filed the application under Section 125 of the Cr.P.C. for grant of maintenance of Rs. 5,000 per month alleging that the petitioner (O.P.) has ousted them from the house. On the other hand, the petitioner had filed written statement stating therein that he had divorced O.P. No. 2 on 7.7.2009 by pronouncement of talak and necessary communication has been sent through the Emarat-sharia. That he had also sent the talaknama by registered post on 21.11.2009.

4. The Trial Court has discussed the evidence of the witnesses and O.P. No. 2 was examined as PW-2 wherein she admitted that Md. Wajair and Md. Anjar were born out of the wedlock. That she gave birth to Md. Anjar. 15 years after the birth of Md. Wajair. She testified that since the sister of petitioner (O.P. Naeema Khatoon) was given talak by her elder brother Md. Soaib, O.P. petitioner has ousted her and her two sons from the house. She went to reside in her sasural matrimonial home) but the O.P. refused to keep her. That PW-2 has deposed that the petitioner has a wholesale business in Mahua, vegetables, etc. and earns Rs. 30,000-35,000 per month. She (PW-2) has admitted that her son has passed matriculation and the elder son is residing separately and is not maintaining her and her minor son. She expressed her ignorance about the talak on 7.7.2009 and receipt of talaknama.

5. The petitioner has examined himself as O.P. No. 1 admitting his marriage with O.P. No. 2. His testimony is that he had never ousted O.P. No. 2 from the house rather O.P. No. 2 is a quarrelsome lady and she used to heekle him and his sister on the instigation of her brother Md. Soaib. He had deposed that he had made plans to take divorce from his wife and on 7.7.2009 relatives of both sides assembled in Kurgi village and effort for settlement was made but co