K.M.Tajuddin @ K.Suraj v. Shakira Parveen & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:15.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.1039 of 2006andM.P.No.1 of 2006K.M.Tajuddin @ K.Suraj... Petitioner vs.1.Shakira Parveen2.Minor Khaja Garib Nawas @ Nawas rep.by mother Shakira Parveen... Respondents Petition filed under Section 397 r/w 401 of Cr.P.C. againstthe order dated 21.8.2006 passed by the I Additional PrincipalFamily Court, Chennai, in M.C.No.561/2004.For Petitioner : Mr.N.A.Nassar AhmedFor Respondents : Mr.Md.Ashfaq Rafi ORDER Challenging and impugning the order dated 21.8.2006 passedby the I Additional Principal Family Court, Chennai, inM.C.No.561/2004, this criminal revision case is focussed.2. Compendiously and concisely, the facts which are absolutelynecessary and germane for the disposal of this criminal revisioncase would run thus:-(a) The respondents herein filed the M.C.No.561 of 2004 underSection 125 of Cr.P.C., before the I Additional Principal FamilyCourt, Chennai, seeking maintenance as against the revisionpetitioner herein. Inasmuch as the revision petitioner resistedthe claim, enquiry was conducted.(b) During enquiry, the first respondent herein(wife) examinedherself as P.W.1 and Ex.P1 was marked. The revision petitionerherein(husband) examined himself as R.W.1 along with one Amjathkhanas R.W.2 and Exs.R1 to R5 were marked.(c) Ultimately, the Family Court awarded maintenance in a sumof Rs.1000/- per month in favour of R1 herein(wife) and Rs.500/-per month in favour of R2 herein(child), payable by the revision https://hcservices.ecourts.gov.in/hcservices/ petitioner herein.3. Being aggrieved by and dissatisfied with the said awardingof maintenance, this revision has been filed on various grounds,the gist and kernal of them would run thus:- The Family Court failed to take into consideration the factthat the revision petitioner being the husband was ready andwilling to take back the wife and it was the wife, who wasresponsible for the rift in the matrimonial relationship betweenthe two. Ignoring the oral and documentary evidence in support ofthe revision petitioner's plea, the Family Court simply awardedsuch maintenance. The finding of the Family Court relating to'talaq' pronounced by the revision petitioner is untenable.4. Heard both sides.5. The point for consideration is as to whether there is anyperversity or non-application of law in awarding maintenance infavour of the respondents herein, payable by the revisionpetitioner herein. 6. The learned counsel for the revision petitioner,reiterating the grounds of revision, would advance his argument tothe effect that the 'talaq' pronounced was in order and that it wascommunicated also. However, without applying the law, the FamilyCourt, simply held as though there was no proper 'talaq'. 7. Whereas, the learned counsel for the respondents, by way oftorpedoing and pulverising the arguments as put forth by thelearned counsel for the revision petitioner, would cite thefollowing decisions of the Honourable Apex Court:(i) 2003-1-L.W.363 – SHAMIM ARA VS. STATE OF U.P.AND ANOTHER,certain excerpts from it would run thus:"Held: The correct law of talaq as ordained by the HolyQuran is that talaq must be for a reasonable cause and bepreceded by attempts at reconciliation between the husbandand the wife by two arbiters – one from the wife's familyand the other from the husband's; if the attempts fail,talaq may be effected.(ii) 2003-1-L.W.370 – A.S.PARVEEN AKTHAR VS. 1.THE UNION OFINDIA, AND OTHERS, certain excerpts from it would run thus:". . . . Intimation of divorce made to petitionerthrough her father that her husband had pronounced Talaq inthe presenceh of two witnesses in a simple sitting inTalaq-ul-biddat or Talaq-i-badai form – Plea of petitionerthat it was not recognised in Quoran and that the Actoffends Arts.14, 15 and 21 did not sanction this sinful https://hcservices.ecourts.gov.in/hcservices/ form of Talaq which is grossly injurious to human rightsand is violative of Art.21.Held: Prayer in the writ petition cannot be granted –Petitioner's apprehension that notwithstanding the absenceof cause and absence of efforts at reconciliation, thisform of talaq may be considered to be valid, is based on amisapprehension of the law – Law as declared by the ApexCourt is that talaq must be for a reasonable cause, andmust be preceded by attempt at reconciliation and only ifit fails, talaq may be effected.Dissolution of Muslim Marriages Act set out grounds onwhich muslim woman can claim divorce – Act does not dealwith procedure on which or procedure to be followed whenthe dissolution is at the instance of the husband – MuslimWomen Protection etc. Act requires that husband makesreasonable and fair provision for the future of thedivorced wife – Scope.The law with regard to talaq, as declared by the ApexCourt, is that talaq must be for a reasonable cause andmust be preceded by attempt at reconciliation between thehusband and the wife by two arbiters one chosen by wife'sfamily and the other from husband's family, and it is onlyif their attempts fail, talaq may be effected. Thejudgment of Justice Sidick of this Court in the case ofSaleem Basha, 1998 Crl.L.J.4782, is in conformity with thelaw now declared by the Supreme Court in the case of ShamimAra 2003-1-L.W.363 = 2002 AIR SCW 4162. The earlierjudgments to the contrary of this Court and of other HighCourts can no longer be regarded as good law. Havingregard to the law now declared by the Apex Court in thecase of Shamim Ara, 2003-1-L.W.363 – 2002 AIR SCW 4162,talaq, in whatever form, must be for a reasonable cause,and must be preceded by attempts for reconciliation byarbiters chosen from the families of each of the spouses,the petitioner's apprehension that notwithstanding absenceof cause and no efforts having been made to reconcile thespouses, this form of talaq is valid, is based on amisunderstanding of the law." 8. A plain reading of the above decision would display andhighlight that any pronouncement of 'talaq' would not be valid, butit should strictly be in accordance with the Honourable ApexCourt's decision cited supra. In this case, the Family Court, byadverting to the relevant facts, clearly observed that there was noproper attempt for reconciliation as contemplated in the SupremeCourt's verdict, cited above before such alleged pronouncement of'Talaq'. https://hcservices.ecourts.gov.in/hcservices/

9. A bare perusal of the records would clearly indicate andexemplify that the reconciliation was undertaken, as contemplatedin the Supreme Court's decision, in this case. Hence, I could seeno infirmity in the order passed by the Family Court, relating toits finding that there was no valid 'Talaq' pronounced by thehusband.10. The Family Court also, considering the oral anddocumentary evidence, held that the husband is liable to maintainthe wife and the child.11. Regarding the maintenance awarded to the child isconcerned, there could be no doubt at all for the reason that afather is expected to maintain the child whether the child is withthe mother or the father. So far the wife is concerned, theFamily Court held that such alleged pronouncement of 'talaq' by thehusband is not valid and in the summary proceedings under Section125 of Cr.P.C., the Family Court also arrived at the conclusionthat she cannot be found fault with for such separation between therevision petitioner(husband) and the first respondent(wife).12. At this juncture, I would like to call up and recollectthe following decisions of the Honourable Apex Court:(i) 2002 Supreme court cases (crl) 1448 - Bindeshwari PrasadSingh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand)and another; an excerpt from it would run thus:"13. The instant case is not one where any such illegalitywas committed by the trial court. In the absence of anylegal infirmity either in the procedure or in the conduct ofthe trial, there was no justification for the High Court tointerfere in exercise of its revisional jurisdiction. It hasrepeatedly been held that the High Court should notreappreciate the evidence to reach a finding different fromthe trial court. In the absence of manifest illegalityresulting in grave miscarriage of justice, exercise ofrevisional jurisdiction in such cases is not warranted.14. We are, therefore, satisfied that the High Court was notjustified in interfering with the order of acquittal inexercise of its revisional jurisdiction at the instance ofthe informant. It may be that the High Court on appreciationof the evidence on record may reach a conclusion differentfrom that of the trial court. But that by itself is nojustification for exercise of revisional jurisdiction underSection 401 of the Code of Criminal Procedure against ajudgment of acquittal. We cannot say that the judgment ofthe trial court in the instant case was perverse. No defectof procedure has been pointed out. There was also no https://hcservices.ecourts.gov.in/hcservices/ improper acceptance or rejection of evidence nor was thereany defect of procedure or illegality in the conduct of thetrial vitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjeeand Others vs. State of W.B.and others, an excerpt from it wouldrun thus:"22. The cases cited by the learned counsel show thesettled legal position that the revisional jurisdiction, atthe instance of the complainant, has to be exercised by theHigh Court only in very exceptional cases where the HighCourt finds defect of procedure or manifest error of lawresulting in flagrant miscarriage of justice."13. A bare perusal of those decisions would exemplify anddemonstrate that the High Court, while exercising its revisionaljurisdiction is not expected to interfere with the finding of factarrived at by both the Courts below simply because one other viewis possible or a different view could be taken. Accordingly, Icould see no perversity in the finding given by the Family Court.14. Regarding the quantum is concerned, the learned counselfor the revision petitioner would submit that the revisionpetitioner is a mere auto driver and hence, he cannot pay totally asum of Rs.1500/- towards maintenance in favour of the respondents.15. I am at a loss to understand as to how a lady and a childcould live without even having a sum of Rs.1000/- and Rs.500/- permonth, respectively, to keep the wolf from the door, to keep thepot boiling and to make both ends meet. Hence, I am of theconsidered opinion that no interference with the order passed bythe Family Court is required.16. The learned counsel for the revision petitioner wouldsubmit that even now the husband is willing to take back the wife.If that be so, it is open for the revision petitioner to takeappropriate steps before the appropriate forum.17. The learned counsel for the respondents would submit thatthe revision petitioner has already married for the second time.18. At present, this Court could only observe that it is openfor the revision petitioner to resort to appropriate procedures forseeking remedy in the way known to law.19. In the result, I could see no merit in the revision andaccordingly, the criminal revision case is dismissed. Consequently,connected miscellaneous petition is dismissed.Sd/Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ /true copy/Sub Asst.RegistrarMskToThe I Additional Principal Family Court, Chennai.Copy to:The Section Officer,Criminal Section,High Court, Madras.1 cc To Mr.N.A.Nassar Ahmed, Advocate, SR.314181 cc To Mr.Md.Ashfaq Rafi, Advocate, SR.31195Crl.R.C.No.1039 of 2006 ggk(co)pmk.31.7.2009.