Allowed

Begum Bee , Moulan Bee, v. Shaik Hussain

Telangana HC7 Dec 2011CRLP/2286/2008

Case brief

AI extract

What is this about?

This criminal petition challenged the dismissal of a maintenance claim by a Muslim wife. The High Court set aside lower court orders that dismissed the claim based on a triple Talaq pronouncement. Relying on Shamim Ara and Shabana Bano, the Court held that marriage is not dissolved automatically without proof of reconciliation attempts and remitted the case for fresh consideration.

What did the court decide?

The orders in M.C.5/2004 and Crl.R.P.No.17/2007 are set aside. M.C.No.5/2004 is remitted to the trial Court for fresh consideration.

Begum Bee , Moulan Bee, Vs Shaik Hussain — Matrimonial and Divorce | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE K.G.SHANKAR

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<+ CRIMINAL PETITION No.2286 of 2008

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% WEDNESDAY, THE SEVENTH DAY OF DECEMBER, TWO THOUSAN AND ELEVEN

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# Begum Bee @ Moulan Bee

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….Petitioner

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Versus

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$ Shaik Hussain and another

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…..Respondents

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! Counsel for the Petitioner : Mr.WASIM AHMED KHAN

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^ Counsel for the respondents : PUBLIC PROSECUTOR

< Gist :

> Head Note:

? Cases Referred

1. AIR 2003 AP 123

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2. AIR 2002 SC 3551

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3. 2009 AIR SCW 7490

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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WEDNESDAY, THE SEVENTH DAY OF DECEMBER TWO THOUSAND AND ELEVEN

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PRESENT

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THE HON'BLE MR JUSTICE K.G.SHANKAR

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CRIMINAL PETITION No.2286 2008

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Between:

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Begum Bee @ Moulan Bee And

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..... PETITIONER

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Shaik Hussain and another

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.....RESPONDENTS

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The Court made the following:

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THE HON'BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION No.2286 of 2008

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ORDER:

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The unfortunate wife filed the present petition seeking to set aside the orders in Crl.R.P.No.17/2007 on the file of the VI Additional District & Sessions Judge (Fast Track Court), Ranga Reddy District at Vikarabad which is a revision arising from the orders in M.C.No.5/2004 on the file of the Judicial First Class Magistrate, Tandur, Ranga Reddy District. The 1^st respondent is the husband of the petitioner. The petitioner/wife claimed maintenance through M.C.No.5/2004. The petition was dismissed. The revisional Court confirmed the orders in the M.C.No.5/2004. Hence this petition.

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The 1^st respondent/husband contended that he divorced the petitioner/wife on 13.12.2004 by pronouncing triple Talaq. The petitioner/wife filed the maintenance case on 10.03.2004. The respondent/husband pronounced the Talaq on 13.12.2004. It is the case of the petitioner/wife that she was not aware that the 1^st respondent pronounced Talaq till she came to know of the same through the counter.

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Relying upon the judgment of this Court in Syed Maqsoof vs State of A.P .^[1] the trial Court and the revisional Court held that the triple Talaq as pronounced by the 1^st respondent/husband was legal and that the marriage consequently stood dissolved between the petitioner and the 1^st respondent. The maintenance case and the revision therefrom consequently were dismissed.

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Sri Wasim Ahmed Khan, learned counsel for the petitioner/wife contended that mere pronouncement of triple Talaq is not valid, and even assuming that triple talaq was valid, a Muslim woman still would be entitled to maintenance even beyond the period of Iddat. He referred to the judgment of this Court in Syed Maqsoof vs State of A.P. (1 supra) relied upon by the trial Court and the revisional Court. The said decision was delivered by a Division Bench of this Court on 18.06.2002. Their Lordships held that effort to reconcile was not a pre-condition for the pronouncement of divorce by the husband, and that the pronouncement of triple Talaq was indeed valid. The learned counsel for the petitioner then took me to the judgment of the Apex

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Court in Shamim Ara vs State of U.P .^[2] . This decision was delivered by the Supreme Court on 01.10.2002 as against the decision of this Court on 18.06.2002. The Supreme Court observed in that case that the plea of previous divorce by the husband in the written statement in the maintenance proceedings initiated by the wife cannot be considered as pronouncement of Talaq by the husband, and that such pronouncement of Talaq would not dissolve the marriage. As correctly pointed out by the learned counsel for the petitioner, the decision of the Supreme Court being in later point of time, prevails over the earlier decision of the Division Bench of this Court. Consequently, the decision in Shamim Ara vs State of U.P. (2 supra) would prevail over the decision in Syed Maqsoof vs State of A.P. (1 supra). Hence, the claim of the 1^st respondent/husband that he has pronounced Talaq and divorced his wife cannot be accepted. The marriage is still subsisting between the petitioner and the 1^st respondent.

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More important, it was observed by the Supreme Court in Shabana

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Bano vs Imran Khan^[3] that a Muslim wife would be entitled to maintenance under Sec.125 of Cr.P.C. even after the Iddat period as long as the wife did not marry again. In the light of the above two decisions of the Supreme Court, the claim of the petitioner/wife for maintenance is maintainable. The only ground on which the trial Court and the revisional Court dismissed the claim of the petitioner for maintenance is that the marriage between the petitioner

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and the 1^st respondent stood dissolved. In view of Shamim Ara vs State of U.P. (2 supra) it is to be held that the marriage would not stand dissolved automatically without proof of the other claims that the Talaq was on reasonable ground and proceeded by an attempt of reconciliation between the parties. These are matters for the trial Court to decide. I, therefore, consider it appropriate to remit the case to the trial Court for re-consideration of the case, in the light of the decisions, referred to above, and dispose of the case expeditiously.

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The Criminal Petition is accordingly allowed. The orders in M.C.5/2004 on the file of the Judicial Magistrate of First Class, Tanduru, Ranga Reddy District and the orders in Crl.R.P.No.17/2007 on the file of the VI Additional District and Sessions Judge (Fast Track Court), Ranga Reddy District at Vikarabad are hereby set aside. M.C.No.5/2004 is remitted to the trial Court for fresh consideration, in the light of the decisions, referred to above. The learned trial Judge may remember that this is an old case where the wife claimed maintenance way back in 2004, and dispose of the maintenance case, in accordance with law, expeditiously, and at any rate, preferably within a period of three months from the date of receipt of a copy of this order. No order as to costs.

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K.G.SHANKAR,J

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Dated: 07.12.2011 Dsr

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Note:

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LR copy to be marked B/o Dsr

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[1] AIR 2003 AP 123 [2] AIR 2002 SC 3551 [3] 2009 AIR SCW 7490

Begum Bee , Moulan Bee, v. Shaik Hussain

Case brief

What is this about?

What did the court decide?

Begum Bee , Moulan Bee, v. Shaik Hussain

Case brief

What is this about?

What did the court decide?

What the court decided

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