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2006 Supreme(Ori) 407
High Court Of Orissa
P. K. TRIPATHY AND PRADIP MOHANTY, JJ.
ABDUL RASHID KHAN - Appellant
Versus
MUSTAFIRAN BIBI - Respondent
MATA 11 Of 2005
Decided On : 05/19/2006
M.M.BEHERA, MD.FAYAZ, Md.Irshad, N.K.PATNAIK, P.C.DAS, S.C.Ghose, S.DASH, S.Ghose
The court emphasized the requirement of evidence for divorce and upheld the jurisdiction of the Family Court for maintenance proceedings.
Headnote:
Family Court Act - Maintenance - Section 7 of the Family Courts Act, 1984 - Summary of Acts and Sections: Section 7 of the Family Courts Act, 1984 - The court discussed the jurisdiction of the Family Court and the maintainability of the proceeding for maintenance under Section 7(1)(f) of the Act. The court also considered the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure, 1973.
Fact of the Case:
The wife and children filed a case for maintenance and recovery of dower dues, alleging ill-treatment and abandonment by the husband. The husband claimed to have given divorce to the wife due to her arrogance and lavish expenses.
Finding of the Court:
The court partly decreed the case, directing the husband to pay monthly maintenance to the wife and children. The court rejected the husband's claim of divorce due to lack of evidence and upheld the jurisdiction of the Family Court for the maintenance proceeding.
Issues: Jurisdiction of the Family Court, validity of divorce, and entitlement to maintenance and recovery of dower and dowry articles.
Ratio Decidendi: The court held that the mere plea of divorce in the written statement without evidence cannot be treated as effectuating Talaq. The court also affirmed the jurisdiction of the Family Court for maintenance proceedings under Section 7(1)(f) of the Family Courts Act, 1984.
Final Decision: Both appeals were dismissed, affirming the maintenance order and rejecting the husband's claim of divorce and jurisdictional challenge.
PRADIP MOHANTY, J.
( 1 ) THE above two appeals under Section 19 of the Family courts Act, 1984 arise out of the judgment and order dated 29-1-2005 passed by the judge, Family Court, Cuttack in Civil proceeding No. 5 of 1992. MATA No. 11 of 2005 has been filed by the husband, who was the respondent before the Court below, and mata No. 13 of 2005 has been filed by the wife and children, who were petitioners there. The Civil Proceeding was filed by the wife and children with a prayer for maintenance and recovery of dower dues, besides direction for return of cash and ornaments.
( 2 ) THE case of the wife is that the husband was serving in military as a Jawan and was drawing salary of Rs. 2,500/- per month in the year 1983. He was sending money to his widowed mother and sister, who were spending the entire amount and not paying anything for food and clothing of the wife and children as well as for eduction of the children. They were also ill-treated. In July, 1990 the husband came to the matrimonial home and compelled the wife to bring cash of Rs. 50,000/- to which the wife expressed her inability and the husband wanted to kill the wife by electric shock. Her mother-in-law and sister-in-law snatched away all the ornaments from her body and assaulted her. Lastly she was driven out of the matrimonial home on 29-8-1990. On 1-9-1992, the husband came and wanted her signature on a blank paper, to which she refused, whereupon the husband threatened to murder her. In that connection, a complaint case has been instituted against the husband.
( 3 ) THE case of the husband in his written statement is that he has given divorce to the wife on 31-12-1991 for her arrogance and lavish expenses. The wife never liked to stay in the matrimonial home when he was remaining in the boarder area due to his service in the defence. The parents of the wife did not allow the husband to come to his wife and children, for which the life of the husband became miserable and he divorced the wife. The husband in his written statement denied all the allegations
( 4 ) IN order to prove her case, the wife examined as many as three witnesses including herself as P W 1 and relied on four exhibits marked Exts. 1 to 4. The husband examined himself as P. W. 1 and also relied on four exhibits marked Exts. A to D.
( 5 ) THE Judge, Family Court, after conclusion of the hearing by his judgment and order dated 29-1-2005 partly decreed the case with a direction to the husband to pay monthly maintenance at the rate of Rupees 500/- per month to each of the petitioners 1, 3 and 4 before him from 7-1-1992, i e. from the date of filing of the case. He further directed to pay monthly maintenance at the above rate to petitioner No. 2 before him from the date of filing of the petition till 1-9-2002. While the husband has filed MATA no. 11 of 2005 challenging the said judgment, the wife and children have filed MATA no. 13 of 2005 with a prayer to modify the judgment by allowing their claim of arrear maintenance and the claim for return of dowry articles or price thereof.
( 6 ) MR. Irshad, learned counsel for the husband, submitted that the proceeding was not maintainable and the Judge, Family court, Cuttack had no jurisdiction to try the case. He further submitted that the petition for maintenance filed under Section 7 of the family Courts Act was also not maintainable, since the wife claimed maintenance for herself and for children whereas the Family court can decide the dispute only between the husband and the wife. Therefore, it is liable to be set aside. His further submission was that the Judge, Family Court should have entertained the application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 since the husband had divorced the wife and the wife also claimed return of the dower.
( 7 ) MR. Ghose, learned counsel for the wife, submits that the Court below fell into error in not considering the wife's claim for arrear maintenance from 1-8-1990 t
