…. Sarif Ansari @ Md. Sarif Ansari v. 1. The State of Jharkhand 2. Bibi Samiran Khatoon
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 283 of 2018 …. Sarif Ansari @ Md. Sarif Ansari Versus 1. The State of Jharkhand 2. Bibi Samiran Khatoon ----- …… Petitioner …… Opp. Parties CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the Petitioner : Mr. Manoj Kumar Sah, Advocate For the State For the O. P. No. 2 : Mr. Mukesh Kumar Dubey, Advocate : Mrs. Nehala Sharmin, Spl. P. P. ….. ORAL ORDER IN COURT 10/27.02.2024 This Criminal Revision No. 283 of 2018 has been filed on behalf of the petitioner challenging the ‘order’ dated 19.01.2018 passed by Sri Rakesh Kumar Singh, learned Principal Judge, Family Court, Godda in Maintenance Case No. 79 of 2014 by which the petition filed by the opposite party under Section 125 of the Cr. P.C. has been allowed and direction has been given to the petitioner to pay Rs. 2,000/- per month to the opposite party - wife namely Bibi Samiran Khatoon as maintenance from the date of filing of this case and arrears would be given in 100 equal instalments. 2. The case of the opposite party -wife, in brief, is that she had solemnized marriage on 12.04.2010 as per Muslim Customs and after few months, the petitioner had started torturing and assaulting her for non-fulfilment of demand of dowry and even not giving the food and clothes of daily uses and she was treated badly. It is also stated that she was ousted from matrimonial home on 07.01.20107.09.2014 for which she had filed a case bearing G. R. No. 448 of 2014 corresponding to Sundarpahari P. S. Case No. 13 of 2014 against the petitioner and others. It has been stated that she is living in the house of her parents and the financial 2 condition of her parents are very poor and they are not able to maintain her. She has stated that the husband-petitioner is having agricultural land and earning Rs. 80,000/- per month and for remaining six months, he went to Mumbai for earning and also earning Rs. 15,000/- per month and hence, the petitioner has annual income of around Rs. 1,70.000/- and hence she is entitled to maintenance of Rs. 2,000/- per month and the petitioner was compelled her to make abortion and her pregnancy was terminated. 3. The case of the husband-petitioner, in brief, by filing Show Cause is that the petition filed by the opposite party no. 1, is not maintainable and liable to be rejected. It is submitted that even the case of the abortion was not disclosed either in G. R. No. 448 of 2014 corresponding to Sundarpahari P. S. Case No. 13 of 2014 or even in this case. It is stated that the opposite party no. 2 has taken triple talaque from the petitioner on 08.01.2014 and she has been paid cost of Rs. 1,15,000/- on 07.03.2014 towards Iddat etc. It has been stated that the opposite party no. 2 is living in the house of her parents on her own will and they are big farmers and their yearly income is around Rs. 3,00,000/- and hence, this criminal revision application may be dismissed as the opposite party no. 2 is not entitled to maintenance after Talaque. 4. Heard learned counsel for the petitioner and learned
Legal Reasoning
counsel for the State and learned counsel for the O. P. No. 2. 5. It is submitted by the learned Counsel for the petitioner that the impugned Judgment passed by the learned Court below is illegal and arbitrary and not sustainable in the eye of law. It is submitted that the petitioner is no longer husband of the opposite party no. 2 as she has been taken Talaque and Dain mohar on 07.03.2014 itself and she has also put her signature while receiving the said amount, which is evident from Annexure-4 of 3 this Criminal Revision Application. It is submitted that the paper of Talaque was also prepared in presence of panches on 20.01.2014 and there were witnesses of both the sides, who had also affirmed the Talaquenama between the petitioner and opposite party no. 2 and in support of the same, learned counsel for the petitioner has enclosed the photocopy of the plain paper dated 20.01.2014 with regard to pronouncement of Talaque by the petitioner and receiving of Dain mohar by the opposite party no. 2 at page- 28 dated 29.01.2018 of this Criminal Revision Application. It is submitted that the opposite party no. 2 has examined six (6) witnesses in support of her case and all the witnesses have supported the fact of Panchayati and Talaque between both the sides. It is submitted that the opposite party no. 2 has falsely instituted a case for the offence under Section 498-A of the Indian Penal Code against the petitioner and her in-law members. It is submitted that the opposite party no. 2 has voluntarily accepted Rs. 1,15,000/- towards the condition of Talaque and toward Dain morhar toward Triple Talaque and thus, the impugned order passed by the learned Court below is illegal, arbitrary and not sustainable in the eye of law and the impugned ‘order’ may be set aside in the interest of justice and this Criminal Revision may be allowed. 6. On the other hand, learned counsel for the State has submitted that the impugned order passed by the learned Court below is fit and proper and no interference is required by this Court. It is submitted that Talaque is disputed by the opposite party no. 2. It is submitted that opposite party no. 2 and her witnesses have fully supported the case of the opposite party nos. 2 and as such, no illegality has been committed by the learned Court below by passing the impugned order and as such, the criminal revision application may be dismissed. 4 7. On the other hand, learned counsel for the opposite party no. 2, after adopting the submission of the learned Spl.P.P., has further submitted that this Criminal Revision Application is devoid of merit. It is submitted that the impugned order passed by the learned Court below is fit and proper and no interference is required by this Court. It is submitted that story of Talaque is false and concocted. It is submitted that the paper enclosed with the revision application are not correct papers. It is submitted that the paper shown by the petitioner at Annexure- 4 page-32 is forged papers and the forged and fabricated document have been prepared by the petitioner. It is submitted that the opposite party no. 2 has merely put thumb impression, rather does not sign and hence, the document produced by the petitioner may not be relied upon. It is submitted by wife-opposite party no. 2 that there is no Talaque between the petitioner and the opposite party no. 2. It is further submitted that even after Talaque, Muslim Women is entitled to maintenance under Section 125 of the Cr. P. C. and in support of her contention, learned counsel for the opposite party no. 2 has placed reliance upon the judgment rendered in the case of Mohammed Iqbal Ahmed Versus Jabeen Begum and Ors. reported in 2015 (3) DMC 270 by Hon’ble Karnataka High Court and also judgment rendered in the case of Shabana Bano Versus Imran Khan reported in 2010 (1) SCC 666. It is further submitted that the witness examined on behalf of the petitioner cannot be relied upon as they are the interested witnesses. It is submitted that in view of the above, impugned order passed by the learned Court below may be upheld and this Criminal Revision may be dismissed. 8. Perused the Lower Court Records and considered the submission of both the sides. 9. It transpires that marriage between the petitioner and the 5 opposite party no. 2 is admitted, which had been solemnized on 12.04.2010 as per the Muslim Customs. 10. It appears that after ouster from her matrimonial home, the opposite party no. 2 had filed the Maintenance Case No. 79 of 2014 against the petitioner on 08.07.2014 before the learned Principal Judge, Family Court, Godda for grant of maintenance of Rs. 3,000/- per month. 11. It transpires that the petitioner has filed his show cause on 21.09.2015. 12. It further transpires that the wife-opposite party no. 2, in support of her case has got examined three (3) witnesses, who are as follows:- (i) P.W. -1 is Saifuddin Ansari, father of the O. P. No. 2, (ii) P.W. -2 is Rajesh Ranjan Pandit, who is a businessman and (iii) P.W. -3 is Bibi Samiran Khatoon, the O. P. No.2 herself. 13. However, opposite party no. 2 has not marked any documents as Exhibits in support of her case. 14. The husband –petitioner, in support of his case, has got examined six (6) witnesses, who are as follows:- (i) O.P.W.- 1 is Idrish Mian, (ii) O.P.W.-2 is, Saiful Ansari, (iii) O.P.W.- 3 is Md. Sahadat Ansari, (iv) O.P.W.- 4 is Md. Dabiruddin Ansari, (v) O.P.W.- 5, Mujim Alam and (vi) O.P.W.-6, Md. Sarif Ansari, i.e. the petitioner himself. 15. The petitioner, in support of his claim, has got marked the following Exhibits, which are as follows:- (i) Ext.- A is the Original copy of panchnama of 20.01.2014 and (ii) Ext.-B is Signature of witnesses from the side of the opposite party (revisionist-petitioner) on the panchnama. 6 16. Thereafter, the learned Court below, after considering the submission of both the sides, had directed to the petitioner to pay Rs. 15,000/- per month to the opposite party no. 1- wife namely Sazia Khatton as maintenance and Rs. 2,000/- per month to the opposite party no. 2- Bibi Samiran Khatoon from the date of filing of this case. 17. From perusal of the evidence witnesses, it appears that P.W. -3, Bibi Samiran Khatoon is the wife-opposite party no. 2 herself and she has fully supported her case on the point of ousting from the matrimonial home, but she has admitted that a panchayati was held between the parties on 20.01.2014. 18. It appears from the evidence of P.W. -1, Saifuddin Ansari and P.W. -2, Rajesh Ranjan Pandit that they have supported the case of the wife-opposite party no. 2 by stating that the he has produced agriculture produce and has grown 50-60 quintal of grains and earning Rs. 1,70,000/- per annum. P.W. -2, Rajesh Ranjan Pandit has asserted, during his cross-examination that the husband-petitioner has 10-15 bigha land, although, there is no documentary evidence. 19. So far as the evidence of the petitioner is concerned, it would appears that all the witnesses i.e. the O.P.W.-1 to O. P. W.-5 have stated that this petitioner has given divorce to the opposite party no. 2-wife and a panchayati was held and they have also denied the income of Rs. 1,70,000/- per annum of the petitioner. O.P.W. -6, Md. Sarif Ansari, i.e. the petitioner himself and he has stated that he has given talaque to the opposite party no. 2 in presence of panches and other witnesses. 20. The question of consideration is as to whether the opposite party no. 2 is entitled for maintenance even after her divorce. 7 21. This question has already been settled by the Hon’ble Supreme Court in the case of Sunita Kachwaha and Others vs Anil Kachwaha reported in 2014 (16) SCC 715 at para 7, 8 and 10 as follows:- “Para-7:- Inability to maintain herself is the pre-condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant-wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s economic condition is quite good, the wife would be entitled to maintenance. Para-8:- The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. Para-10:-The impugned order of the High Court dated 26.06.2008 passed in Criminal Revision No. 2303/2007 is set aside and this appeal is allowed. The respondent is directed to pay the maintenance of Rs.3,000/- per month to the appellant-wife as ordered by the Family Court and also pay the arrears of maintenance payable to the appellant-wife within the period of eight weeks.” 22. It has been held in Kalyan Dey Chowdhury Vs Rita Dey Chowdhury Nee Nandy reported in (2017) 14 SCC 200 at paragraph 15, as follows:- 8 “Para 15:- The review petition under Order 47 Rule 1 CPC came to be filed by the respondent wife pursuant to the liberty granted by this Court when the earlier order dated 2-2-20152 awarding a maintenance of Rs 16,000 to the respondent wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant husband was getting a net salary of Rs 63,842 after deduction of Rs 24,000 on account of GPF and Rs 12,000 towards income tax. In February 2016, the net salary of the appellant is stated to be Rs 95.527. Following Kulbhushan Kumar v. Raj Kumari, in this case, it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February 2016, the net salary of the husband was Rs 95,000 per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs 23.000 to Rs 20.000 per month as maintenance to the respondent wife and son. 23. It has been held in the case of Dr. Swapan Kumar Banerjee Vs. State of West Bengal and Another reported in 2020 (19 ) SCC 342, that even a wife, who has been divorced on ground of desertion, is also entitled to claimed maintenance and it has been held at para 5 and 7 as follows:- “Para 5. Thereafter, in Rohtash Singh v. Ramendri this Court took a similar view: (SCCP 184, para 11) 11. The learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights. Duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once 9 her husband continues to be under a statutory duty and obligation to provide maintenance to her." “Para 7. No doubt, as urged by Mr Debal Banerjee. Explanation II to Section 125 9 CrPC by deeming fiction includes a divorced woman to be a wife and, therefore, a woman who has been divorced by her husband can still claim maintenance under Section 125 CrPC. The question is how we should read the provisions of sub-section (4) in this regard, especially when we deal with those women, against whom a decree for divorce has been obtained on the ground that they have deserted their husband. Once the relationship of marriage comes to an end, the woman obviously is not under any obligation to live with her former husband. The deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the ex- husband. The husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that event after divorce she is not willing to live with him. Therefore, we find no merit in the contention of Mr Debal Banerjee.” 24. It has been held in the case of Abhilasha Versus Parkash and Ors. reported in (2021) 13 SCC 99, at para 27 to 31, which are as follows:- “Para-27:- Muslim Law also recognises the obligation of father to maintain his daughters until they are married. Referring to Mulla’s Principle of Mohammedan Law, this Court in State of Haryana and Others Vs. Santra (Smt.), (2000) 5 SCC 182 in paragraph 40 held: (SCC p. 196) “40. Similarly, under the Mohammedan Law, a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. [See: Mulla's Principles of Mohammedan Law (19th Edn.) page 300]” Para-28:- Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. Section 20(3) now makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property. Para-29:- Section 20 of Hindu Adoptions and Maintenance Act, 1956 cast a statutory obligation on a Hindu to maintain his daughter who is unmarried and unable to maintain herself out of her own earnings or other property. As noted above, Hindu Law prior to enactment of Act, 1956 always obliged a Hindu to maintain unmarried daughter, who is unable to maintain herself. The obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by her against her father, if to maintain herself by enforcing her right she is unable 10 under Section 20. Para-30:- We may also notice another judgment of this Court in Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233, which was a case under Section 125 Cr.P.C. A Muslim wife with her two daughters and a son filed an application claiming maintenance under Section 125 Cr.P.C. The trial court allowed the maintenance to the wife and children from her husband. The husband after divorcing the wife filed application in the trial court seeking modification of the order in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The trial court modified the order insofar as the grant of maintenance of wife was concerned but maintained the order of maintenance to each of the three minor children. The husband challenged the order by means of revision, which was dismissed by the Revisional Court. An application under Section 482 Cr.P.C. was filed in the High Court. The High Court accepted the claim of husband and relying on provision of Section 3(1)(b) of the Act, 1986 held that a Muslim wife is entitled to claim maintenance from her previous husband for her children only for a period of two years from the date of birth of the child concerned. The High Court held that minor children were not entitled for maintenance under Section 125, Cr.P.C. A special leave to appeal was filed questioning the judgment. This Court dealing with Section 125 Cr.P.C. as well as Act, 1986 held that effect of a beneficial legislation like Section 125 Cr.P.C. cannot be allowed to be defeated except through clear provisions of a statute. This Court held that there is no conflict between the two provisions. Para-31:- This Court noticed the provisions of Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 and Section 125 Cr.P.C. It is relevant to refer to the following observations made by this Court in paragraph 7 of the above judgment: (Noor Saba Khatoon Case, SCC pp. 238-39) “7. ...Under Section 125, CrPC the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them. Insofar as children born of Muslim parents are concerned there is nothing in Section 125 CrPC which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by Clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125 CrPC to the children only on the ground that they are born of Muslim like Section parents. The effect of a beneficial 125 CrPC, cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125 CrPC where they are minor and are unable to maintain themselves. A Muslim father's obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125 CrPC is absolute and is not at all affected by Section 3 (1)(b) of the 1986 Act.” legislation 11 (emphasis in original) 25. It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-77, 78, 79, 80, 112 and 113, which are as follows:- “Para-77:- The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. Para-78:- The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290] Para-79:- In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it. Para-80:- On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able- bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339] Para-112:- In Badshah v. Urmila Badshah Godse [Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51] , the 12 Supreme Court was considering the interpretation of Section 125 CrPC. The Court held : (SCC p. 196, para 13) “13.3. … purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.” Para-113:- It has therefore become necessary to issue directions to bring about uniformity and consistency in the orders passed by all courts, by directing that maintenance be awarded from the date on which the application was made before the court concerned. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.” 26. It has been held in the case of Kiran Tomar & Ors Vs State of Utter Pradesh & Another reported in 2022 live law (SC) 904 at paragraph 10 & 11, as follows:- “Para-10:- On the first aspect, it is well-settled that income tax returns do not necessarily furnish an accurate guide of the real income. Particularly, when parties are engaged in a matrimonial conflict, there is tendency to underestimate income. Hence, it is for the Family Court to determine on a holistic assessment of the evidence what would be the real income of the second respondent so as to enable the appellants to live in a condition commensurate with the status to which they were accustomed during the time when they were staying together. The two children are aged 17 and 15 years, respectively, and their needs have to be duly met.” “Para 11:- In this view of the matter, the High Court was not justified in setting aside the order of the Family Court on the basis of the reasoning which has been extracted above in the earlier part of this order.” 27. This question is no longer res-integra as it has been settled by the Hon’ble Supreme Court that even after divorce, Muslim Women are entitled for maintenance. 28. So far as the question of the grant of divorce is concerned, the Court is not considering that aspect also in view of the that 13 panchnama prepared on 20.01.2014, but the signature of the petitioner given below is 07.03.2014, which appears to be contradictory. However, this Court is not looking on that aspect. 29. This Court finds that no illegality has been committed by the learned Court below by passing the impugned order dated 19.01.2018 by granting maintenance of Rs. 2,000/- per month to the opposite party no. 2 from the date of filing of the application. The petitioner is directed to pay the current maintenance amount and arrears of maintenance amount to the opposite party no. 2, Bibi Samiran Khatoon within a period of six months from today, failing which the opposite party no. 2, Bibi Samiran Khatoon will be at liberty to take all possible coercive steps for realization of the said amount in accordance with law. 30. Accordingly, the Criminal Revision No. 283 of 2018 is hereby dismissed. Kamlesh/ (Sanjay Prasad, J.)