F.Sheik Hussain v. Faridha Banu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.07.2008CORAMTHE HONOURABLE MR.JUSTICE K.MOHAN RAMCriminal Original Petition No.9166 of 2008F.Sheik Hussain.. Petitioner-Vs.-Faridha Banu.. RespondentCriminal Original Petition filed under Section 482 of the CriminalProcedure Code to call for the records pertaining to the orderdated 07.02.2008 in C.R.P.No.31 of 2007 on the file of theAdditional District Judge (Fast Track Court No.1), Salem,confirming the order dated 21.03.2007 passed in M.C.No.14 of 2003on the file of the Judicial Magistrate No.1, Attur, and set-asidethe said orders.For Petitioner : Mr. P.JagadeesanFor Respondent : No AppearanceO R D E RThe above Criminal Original Petition has been filed againstthe order of the Additional District Judge , FTC No.I Salem,rendered in C.R.P.No.31 of 2007.2. The short facts that are necessary for the disposal ofthe above Criminal Original Petition are set-out below:-The respondent herein who is the second wife of thepetitioner filed a petition under Section 125 of the CriminalProcedure Code seeking maintenance at the rate of Rs.3,000/- permonth alleging that the petitioner had deserted the respondentwithout any valid reason and neglected to maintain her though hewas possessed of sufficient means. The said petition was contestedby the petitioner herein contending that he had divorced therespondent / wife by pronouncing ‘Thalaq’ on 15.09.2003 andpronounced ‘Muthalaq’ in front of the witnesses for the same and hesent a notice dated 30.09.2003 informing the same to her and shereceived the notice and sent a reply; since a valid divorce hasbeen granted by the husband-petitioner herein the marriage betweenthe petitioner and the respondent has been dissolved and hence therespondent is not entitled for any maintenance except for the‘Iddat’ period maintenance as per the Muslim Women (Protection ofRights on Divorce) Act 1986 (hereinafter referred to as “the Act”);the petition filed under Section 125 Cr.P.C. is not maintainable. https://hcservices.ecourts.gov.in/hcservices/

3. The trial court on a consideration of the evidence onrecord held that the divorce pleaded by the respondent herein hasnot been proved by acceptable evidence and after considering theincome of the petitioner ordered the payment of a sum of Rs.1,250/-per month as maintenance. Being aggrieved by that the petitionerherein had filed a revision petition in C.R.P.No.31 of 2007 beforethe Additional District Judge (Fast Track Court No.I), Salem, andthe revisional Court on a consideration of the materials on recordconcurred with the findings of the trial court and rejected therevision. Being aggrieved by that the petitioner is before thisCourt by invoking Section 482 of the Criminal Procedure Code. 4. Learned counsel for the petitioner made the followingsubmissions:-(i) the Courts below failed to properly consider theevidence let in by the petitioner herein regarding thepronouncement of ‘Muthalaq’ by the petitioner in front of thewitnesses and failed to see that the same was also duly informed tothe respondent-wife and the maintenance amount for ‘Iddat’ periodwas also sent to the respondent. (ii) as per the provisions of the Act the divorced woman isnot entitled to maintenance from the husband but they are entitledto maintenance only for the three Iddat periods, which thepetitioner has sent to the respondent along with the ‘Muthalaq’notice.(iii) the courts below failed to see that the respondentalone deserted the petitioner without any valid reasons and she isnot entitled to any maintenance from the petitioner.(iv) the Courts below ought to have relied on the evidenceof R.W.2 who is the Kazi for three districts and who had spoken toabout the fact that the petitioner had lawfully divorced therespondent;(v) in any event the award of maintenance of Rs.1,250/- permonth is highly excessive.(vi) the petition filed under Section 125 of the CriminalProcedure Code instead of under the provisions of the Act is notmaintainable and the same should have been dismissed by the Courtsbelow.Except the aforesaid submissions no other submissions have beenmade.5. I have carefully considered the said submissions made bythe learned counsel.6. At the outset it has to be pointed out that admittedlythe petitioner being aggrieved by the order of maintenance passedby the trial court has preferred a revision before the SessionsCourt and the same has been dismissed and as such the abovepetition is in the nature of a second revision which as laid downin the decision reported in (1995) 5 SCC 751 (Deepti v. Akhil Rai)is not maintainable. In the said decision the Apex Court hasobserved as under:- https://hcservices.ecourts.gov.in/hcservices/ "The High Court also should have taken care toverify the record before accepting the concessionmade by the learned Government Advocate. It shouldhave also applied its mind to the aspect that secondrevision application, after dismissal of the firstone by Sessions Court is not maintainable and thatinherent power under Section 482 of the Code cannotbe utilised for exercising powers which areexpressly barred by the Code. As we find that theorder passed by the High Court is not legal and justit will have to be set aside".7. Further even on merits the above Criminal OriginalPetition has to be dismissed for more than one reason. Thecontention of the learned for the petitioner that a divorced Muslimwoman is not entitled to claim maintenance as per the provisionscontained in the Act and such Muslim women are entitled tomaintenance for only three ‘Iddat’ periods is directly against thelaw laid down by the Constitutional Bench of the Apex Court in thecase of Danial Latifi and Anr. v. Union of India reported in (2001(7) SCC 746). The very same contention put forth by the learnedcounsel for the petitioner came up for consideration before theConstitution Bench and the Constitution Bench after analysing theprovisions of this Act summed up the law as under:-“36. While upholding the validity of the Act, we maysum up our conclusions:(1) A Muslim husband is liable to make reasonableand fair provision for the future of the divorcedwife which obviously includes her maintenance aswell. Such a reasonable and fair provision extendingbeyond the iddat period must be made by the husbandwithin the iddat period in terms of Section 3 (i)(a) of the Act.(2) Liability of the Muslim husband to his divorcedwife arising under Section 3(i) (a) of the Act topay maintenance is not confined to the iddatperiod.”The above said decision has been followed in the case of SabraShamim v. Maqsood Ansari reported in (2004 (9) SCC 616) as well asin the decision reported in 2007 (4) CTC 90 (Iqbal Bano v. State ofU.P. And Anr.).8. The other contention that the petition filed by therespondent under Section 125 of the Criminal Procedure Code oughtnot to have been entertained by the Courts below also came up forconsideration in the decision reported in 2007 (4) CTC 90 (referredto supra) and in the said decision in paragraph 9 it has been heldas follows:-“9. Proceedings under Section 125, Cr.P.C. arecivil in nature. Even if the Court notices thatthere was a divorced woman in the case inquestion, it was open to him to treat it as apetition under the Act considering thebeneficial nature of the legisltion. Proceedings https://hcservices.ecourts.gov.in/hcservices/ under Section 125, Cr.P.C. and claims made underthe Act are tried by the same Court.”Therefore the said contention of the petitioner is also liable tobe rejected.9. The next contention of the learned counsel for thepetitioner that the Courts below has not properly considered theevidence on record and has erroneously recorded a finding that the‘Muthalaq” pronounced by the petitioner has not been establishedand the divorce has not been proved is concerned, it has to bepointed out that a perusal of the judgment of the Courts belowclearly shows that the entire evidence has been considered by theCourts below and a concurrent finding has been recorded holdingthat the divorce pleaded by the petitioner has not been proved andsuch a concurrent finding of fact cannot be interfered with by thisCourt under Section 482 of the Criminal Procedure Code by re-appreciating the evidence. The scope of Section 482 of the Cr.P.C.is very very limited and only pure questions of law can be goneinto and not the factual findings and as such this Court is notinclined to re-appreciate the evidence and come to a differentconclusion as sought to be done by the petitioner.10. Similarly the contention of the learned counsel for thepetitioner that the Courts below has not considered the evidence ofR.W.2-Kazi is also not correct. A perusal of the judgment showsthat the evidence of R.W.2 has been considered properly and forreasons recorded only the evidence of R.W.2 has not been accepted.11. In these days of spiralling prices the sum of Rs.1,250/-ordered as maintenance per month cannot be considered to beexcessive. It is also pertinent to point out that after the trialcourt pronounced the order in M.C.No.14 of 2003 on 21.03.2007 thepetitioner had sent a notice dated 09.04.2007 intimating therespondent that he had pronounced ‘Muthalaq’ in the presence ofwitnesses on 07.04.2007. Based on the said notice the learnedcounsel sought to contend that since the respondent had beendivorced by pronouncement of ‘Muthalaq’ on 07.04.2007 and the samehad been communicated to her by notice dated 09.04.2007 therespondent is not entitled to claim maintenance. The saidcontention of the learned counsel for the petitioner is fallacious.The very fact that the petitioner had chosen to pronounce‘Muthalaq’ on 07.04.2007 pre-supposes the existence of a validmarriage between the petitioner and the respondent and the samefalsifies the plea of the petitioner that already he had divorcedthe respondent and it was the main defence of the petitioner beforethe Courts below. Even this subsequent divorce pleaded by thepetitioner has to be established by adducing evidence and evenassuming without admitting that with effect from 07.04.2007 themarriage between the petitioner and the respondent stood dissolvedthat will not affect the right of the respondent to claimmaintenance from the petitioner for the reasons stated supra. https://hcservices.ecourts.gov.in/hcservices/

12. For the aforesaid reasons the above Criminal OriginalPetition fails and the same is dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.srkTo1. The Additional District Judge (Fast Track Court No.1) Salem2. Do Thro the Principal District Judge, Salem3. Judicial Magistrate No.I, Attur4. do thro the Chief Judicial Magistrate, Salem.1 cc to Mr.P. Jagadeesan, Advocate, Sr. 34988Crl.O.P.No.9166 of 2008RSM(CO)kk 11/7