Dismissed

Mohammed Ahmed Pasha v. Shake Zareen , Zareena Sultana

Telangana HC12 Sept 2022CRLRC/512/2019

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision against a Family Court order granting monthly maintenance to a wife and minor son. The Court held that despite allegations of divorce, the respondent failed to prove reasonable and fair provision was made under the Muslim Women Act or that the wife had remarried. The revision was dismissed as there was no illegality.

What did the court decide?

The revision petition was dismissed confirming the order dated 20.08.2018 of the Family Court.

Mohammed Ahmed Pasha Vs Shake Zareen , Zareena… — Maintenance and Alimony | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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MONDAY ,THE TWELFTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE DR. JUSTICE G.RADHA RANI

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CRIMINAL REVISION CASE NO: 512OF 2019

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Criminal Revision Case under Section 397 & 401 of Cr.P.C against the Order dated 20-08-2018 Passed in M.C.No.24212015 on the file of the Court of the lV Additional District Judge-Cum-1"t Additional Family Judge, Ranga Reddy District.

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Between:

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Mohammed Ahmed Pasha, S/o.Mohmmed Madhar Saheb, Aged. 32 Years, Occu. Mechanic, F/o.Pedda Kistapuram-Village, Dubbagudem-Post, GarlaMandal, Khammam-District, Telangana

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Presently working at M/ s.Hema Hyndai Car Work Shop; Khanapuram Haveli, Balaji Nagar, Khammam-Town and District, Telangana

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...PETITIONER/RESPONDENT

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AND

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1 Shake Zareen @Zareena Sultana, Wo.Mohmmed Ahmed Pasha, Aged. 25 years, occu.House Wife, Formerly F/o.H.No.14-31 , Near Post Office, St.Donald High School, Dilsukhnagar, Saroomagar-Mandal, Ranga ReddyDistrict, Telangana

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Presently R/o.H.No.10-06-268/1 , Sai Nagar Colony, Beside Janapriya Quarters, Lingojiguda, Saroor Nagar, Ranga Reddy-District, Telangana

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Mohammed Ghouse Pasha,, S/o.Mohammed Ahmed Pasha, Aged. 5^years, Occu. Student, R/o.H.No.10-06-268/1 , Sal Nagar Colony, / Beside Janapriya Quarters, Lingojiguda, Saroor Nagar, Ranga Reddy-District,^Telangana

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...RESPONDENTS/PETITIONERS

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lA NO: 2 OF 201e

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Petition under iection 482 of Cr PC praying that in th: circumstances stated in the aflidavit filed in support of the petition, the High C ourt may be pleased to suspend t' e operation of the impugned order pasr;,:,J b y the learned 4th Additional District J.rdge-Cum-1 St Additional Family Ju,lpre Flanga Reddy District in M.C.No.242 2()15 dt.20-08- 2018 in the interest of jur;t :e.

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Counsel for the Fetitilner: SRI P. MEHAR SRINIVASA RAO Counsel for the Respondent No.1: SRI M. AMANULLA KHAN (No representation) The Court made the ft,llowing: ORDER

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)

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TIIE IION'BLE^{DT. JUSTICEG. RADHA RANI} CRIMINAL^{REVISIONCASE No.51 2 0F 2019}

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This Criminal^{RevisionCase is filed by the petitioner-respondent} aggrieved^{by the order passed by the IV AdditionalDistrict Judgecum I -} Additional^{FamilyJudge, Ranga ReddyDistrict in MC No'242 of 2015} dated 20.08.2018,^{directing him to pay an amount of Rs'10'000/- per} month to the l't^{respondentand Rs'5,000/- per month to the 2nd respondent} from the date^{of the petition i.e.24'11'2015towardstheir maintenance'}

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Heard learned^{counsel for the petitioner'There is no} representation^{for the respondents'}

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3 The parties^{are hereinafter referredas per theirarraybefore} the FamilY^Court.

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4, The petitioners^{1 and 2 filed a petition under Section125} Cr.P.C.^{beforethe Family Court for grant of maintenance of Rs'10'000/-} per month to^{each of them' The case of the petitionersin briefwas that} the 1't^{petitionerwas the legallyweddedwife of the respondentand the 2nd} petitioner was^{theirminor son' The marriage between the l't petitionerand} the respondent^{was solemnized on 30'0a'2-0{atKhammam District as per}

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:* i-.!+

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2 Dt CRRJ Cr'.R.L No.5l2 oI20l9

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the rites and cus1,)rrs of Muslirn (Hanafi) Law in the Jr.esence of the relatives of both lr dt:s. The respondent was an expert cir,. mechanic and was used to^..r,,olk n Malkajgiri of Ranga Reddy District. At the tirne of marriage, it was a1 re ed that the couple be allowed 1o settl: in and around Hyderabad and Clbr:rabad city limits for which the resprrrdent,s parents agreed. Right 1-rol t 1e first day of maniage, the parcnts o l r he r.espondent, his brother and si. er and his matemal aunt subjectcd the 1 't petitioner to cruelty anrl f,crcecl h,:r to do all sorts of domestic chores frrr e.ll of them. They denied 1er pr c[)er. food and nutrition, subjected her to thysical abuse and went to 1he er tent of attempting to kill her at the tinr,: of pregnancy. They denied to prr: viJe her medicai assistance at the time ,rf her pregnancy and subjectecL hel tr mental agony. Several rneetings were t-eld, but all the efforts of the elcL )n; went in vain and the respondent a nd his family members had not : henged their behaviour and finally drovt: the petitioners 1 and 2 out o the I orisc.

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4.1..^'[he ]'t petitioner lodged the complaint bef:re the Station

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House Officer, W' 'rrren Police Station, Saroornagar vide (- rime No.61 of 2013. The respc' rdent gave an undertaking that he rvlrld provide an amount of Rs.2,0,,0/- to the l't petitioner and that he wor:ld bear all the expenditure towar( s the house r'""t Td maintenance of petitioners I and,2

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DLARRJ J C,i-RC. No-512^of 2019

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and agreed to lead conjugal life without^{the involvement of otherfamily} members. On such undertaking, the said crime^{was closedand action was} dropped. The respondent never fulfilled^{the said undertakingand instead} subjected the I't petitioner to cruelty demanding^{dowryand other material} gains. The family members of the respondent also^{interfered and bet the} father of the 1't petitioner. Several^{attempts for resumption of conjugal life} of the l't petitioner with the^{respondentwentin vain' The respondentsent} Talaq nama (Letter of Divorce) on^9th September,^2015.

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4.2. The petitioners were living at^{the mercy of the old aged} parents of the 1" petitioner. The^{2"d petitioner was admitted in School. The} respondent was earning an^{amountof Rs.50,000/-by working as an expert} car mechanic with a^{Multi-NationalBrand Company and hence,claimed} maintenance of Rs.10,000/-^{per monthto eachof them.}

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The respondent filed counter^{statingthat he pronouncedtriple} Talaq on 09.09.2015 before^{independent witnesses as several disputes were} raised in their marital life^{and several panchayats were held but, in vain.} The then Executive^{Ofhcer of A.P. StateWakf Boardissued divorce} certiflrcate on 30.09.2015 declaring^{that divorce took place on 09.09.2015.} on The said divorce certificate^{was receivedby the 1't petitioner}

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4 Dt.GP-.J CtIRC No5/2al)019

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18.09.2015 and th( reafrer, she filed the present M.C. as su:tr, the same was not maintairLable and was liable to be dismissed as ther.e was no relationship of thr, 1 '1 petitioner as the wife of the rcspon,Je,nt. I{e further contended that thr: 1't petitioner was employed in a privatr: school and was having suffir:ient n()ans for her survival and can take c are of the 2nd petitioner ancl pra., :d to disn.riss the petition.

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l)ut in ; r.hc course of enquiry, the 1't petition,)r was examined as PW.1 and mar, ec: Iixs.Pl to Pl9. The respondent fail,:,1 to attend the court, failed to prcr ;er:ute the case and failed to cross-exam in,: p.W. 1.

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(lonsi lering the evidence of pW.1 and the docr:ments filed by her, the trial co r. obserued that the evidencc of l: w.l remained unchallenged and .h,: cvidence on record established that l.he respondent neglected and reirs:d to rnaintain the petitioners. Whilr, dr:ciding the quantum of naintt nance, the trial court observed that the^,: etitLoner failed to file the salan; <,ertificate of the respondent and fliled to adduce convincing oral e td documentary evidence to prove th,: incrtme of the respondent, but l-rc, v€rver, considering that the respondent tLas rer;ponsibility to maintain the retitioners and considering the requ r.r,,ments of the petitioners, awarrl :d zln amount of Rs. 10,000/- per n onth to the 1st

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DI,GRRJ 5 C.L&C No.5l2 of Z0l9

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petitioner and Rs.5,000/- per month to the 2nd petitioner and directed the respondent to pay the same from the date of the^petition.

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Aggrieved by the said order, dated 20.08.2018, the respondent preferred this revision contending that he was drawhg a monthly salary of only Rs.14,000/-. He had an obligation^{to maintainhis parents and other} family members who were dependent^{on his eamings.The Family Judge,} failed to see that that I't petitioner herself deserted^{his company and there} was no negligence on his part. The order under challenge^{was an ex parte} order, but not based on merits and no^{opportunity was providedto him to} defend the same. The marriage between^{them was dissolvedas per the} divorce certificate issued by the Wakf^{Board.He marriedanotherwoman} and was blessed with children^{whowere now dependent on him.The} Family Court failed to appreciate^{the fact that the 1$ petitioner frled FCOP} No.2129 of 2Ol5 for restitution of^{conjugal rights but the samewas} dismissed for non-prosecution on 29.11.2017.^{The said fact had not been} disclosed by the l$ petitioner in the maintenance^{case. She had} deliberately suppressed the material facts. The maintenance^awardedwas exorbitant and^prayed to set aside the order^{passedby the Family Court,} Ranga Reddy District in MC No.242 of 2015 dated 20.08.2018.

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DI GRP\J Ct RC. No.5t2of20t9

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Norv t re point for consideration is:

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ll/ltcti zr there is any illegality or infirru ity in :ire c'rder of the )y' ,kililional l)istrict Judge cum l-Adclitioncu Family Judge, )?ang: tt eddy District at L.B. Nagar in uwardi,t,g maintenance to thc pztitioners I and 2 as above and whztiter it requires ony ht'e,"ference?

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POINT:

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10.⁽⁾ⁿ a perusal of the pleadings it would c is,clor;e that the relationship betwr en the parties was not in dispute. However, the respondent conter [e,l that the said relationship was dissolr,::d try way of a decree of divorct, i:rsued by the Wakf Board on 30.09.2015. But, no evidence wasr addr ct:d by the respondent to show whether itny reasonable and fair provisiol fltr the future of the l't petitioner lvirs made by him towards her mair: -enance within the Iddat period. Tt t: Cc,nstitutional Bench of the Horr bte Apex Court in Danial Latifi & Lnr. r'. Union of

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Indiar testerl the provisions of Muslim Women (Protr:,:r.ior: of Rights on Divorcc) ,\ct, I lf;6 (for short 'the Act') and held that:

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"(eL) T're judicial enforceability of the Muslinr livc,rced womans right to provision and mrintenan<:e under Sr:ction (3)(l)(a) of the Act has been subje::r:d to the condition of husband having sufficient me ur; which, strictly speaking, is contrary to the prilciples ol MrLslim law as the liability to pay maintenance during -he iddat pt:riod is unconditional and cannot be circunLsr:ribed by

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'^{AIR2ootsc 39sE}

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DT.AMJ C,l.eC. No.5t2of2019

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the financial means of the husband. The purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife afler divorce and the period of iddat.

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O)^{A careful reading of the provisionsof the Act would} indicate that a divorced woman is entitled to^a reasonable and fair provision for maintenance. It^was stated that Parliament seems to intend that^{the divorced} woman gets suflicient means of livelihood, after^the divorce and, therefore, the word provision^{indicates that} something is provided in advance for meeting^some needs. In other words, at the time of divorce^{the Muslim} husband is required to contemplate the future^{needs and} make preparatory arrangements in advance for^meeting those needs. Reasonable and fair provision^{may include} provision for her residence, her food, her clothes, and other articles.

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A Muslim husband is liable to make^reasonable

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l) and fair provision for the future of^{the divorced} wife which obviously includes her^maintenance as well. Such a reasonable and fair^provision extending beyond the iddat^{period must be made} by the husband within the iddat^{period in terms} of Section 3(1)(a) ofthe Act.

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1. Liability of Muslim husband to^hisdivorced wife arising under Section 3(l)(a) of the Act^to pay maintenance is not confined to iddat period'

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1. A divorced Muslim woman who^{has not} remarried and who is not^{able to maintainherself} after iddat period can^{proceedas provided} under Section 4 of the Act against^{her relatives} who are liable to maintain her^{in proportion to} the properties which they inherit^{on her death} according to Muslim law from such^divorced woman including her children and^parents. If any of the relatives being unable to^pay maintenance, the Magistrate may direct^{the State} Wakf Board established under the Act to^pay such maintenance."

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I DtGP,R.J C-l.R.C No-512 of 2019

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1 1.^'fhe I on'ble Apex Court in Shabano Bano^r/l;.Irnran Khan2

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relied upon DaniBr l,atifi's case (1 supra) and held that

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".. e'i rn if a Muslim woman has been divorced, sh,: ,,vould bc entitlel to cl rin maintenance from her husband under Sec:i<,n l1l5 of the Cr P.Cl. r ier the expiry ofperiod ofiddat also, as long ru she does not reman y.'

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12.^'fhus, the l't petitioner is entitled to claim firaintenance from the respondent u, ler Section 125 Cr.P.C. even if she v,.r; divorced and even aftel expiry rf period of iddat, as long as she does not r:-mary. It was clear from tL, j udgment of the Hon'ble Apex Courl tjrat even under the Act, a divorc, d muslim woman is entitled to a reasonatrle and fair provision 1br maiu ellance and such provision is to be made, rnd paid to her within the iddat J,:riod by her husband. As no evidence u,as ldduced by the respondent 1o ;how that he made a fair provision fo;. t.nai:rtenance of the petitioners 1 lrd 2, and paid during the iddat period or that the petitioner No. 1 v:rs remarried, the respondent was tiab,le to pay maintenance to th,. p:titioners I and 2 under Section 125 C;.p.Ct.

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13.^'lhe r:spondent failed to adduce evidence b,efore the trial court when an op1: trtunity was provided to him and failec to p.osecute the matter. IIe file<l salary ceftificate before this Coul issred by Sri '?zoto 1t;^{l,rut crt.zol}

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D,,GRRJ C -RC. No-512 of20t9

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\ \

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Tirumala Auto Service, Khammam dated 15.03.2019 to show that he was receiving only Rs.14,000/- per month by working in a car workshop. It was also mentioned in the said certificate that the certificate can be used only for procuring loans and for official purposes. It was not specified clearly whether it was a net salary or gross salary and it was mentioned as net gross salary. The genuinity of the said certificate has to be decided during the trial, but cannot be received as evidence by this court while hearing the revision. The documents shall be produced during the trial and the contents of it shall be proved by adducing evidence in accordance with law and shall be marked as exhibits to place reliance upon the same. No reliance can be placed upon the certificate filed by the respondent before this court to believe the income of the respondent was an amount of Rs.14,000/- only. As the respondent was not diligent in prosecuting the case or fair in stating his income before the Family Court or filed the salary certif,rcate during the enquiry, to enable the Court to assess his financial capacity, this court does not frnd any illegality or infirmity in the order of the trial Court to interfere with the same as it was passed having due regard to the minimum requirements of the petitioners and the standard of living, they were accustomed to as revealed form the evidence ofthe 1't petitioner. No evidence was adduced by the respondent to show that the petitioner

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,,'. n

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DtCRRJ Cit RC. No^5t2ol2019

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was working and vas having sufficient^{meansto maintai I rerr;elf and the} minor child. As . te respondent could^{not deny his resport:'ibil ity towards} the petitionels rvh r were his wife and^son, it^{is considere<lthlt the order} passed by the Ire nily Court in awarding^{maintenance1<t the petitioners} 1 and 2 fbr an arr ount of Rs.10,000/-^per month^{to the l'' petitionerand} Rs.5,000/- per m(^n1.h to the^{2nd petitioner and directin6;to pray the said} amount frorrL the⁽ ate of thc^{petition is in accordance witll iaw andthere is} no reason to interl :r: rvith the said order.

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In th: result, the revision case is^{dismissec colrfirmingthe} order dated 20., 8.2018 passed in M.C.^No.242 of^{2(. 15 by the IV} Additional I)isrrir t Iudge cum I -Additional^{Family Jud61,:, Ranga Reddy} District.

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Pending m'scellaneous petitions, if any, shall stand^{,: ost:d.}

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//TRUE COPY//

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SD/.h:. SRINIVASA ,?fl-["1'$*^RAO :}ECTION OFFICER

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To,

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1 . The lV Additic, ra^{District Judge-Cum-1"t Additional Familv Judge,Ranga} Reddy Distric

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One CC to Sti^{F'. MEHAR SRINIVASA RAO, Advocate trPurll}

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One CC to SI; t/.^{AMANULLAKHAN,Advocate} [OPUC]

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Two CD Copir s

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HIGH COURT

DATED: 12109 2022

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ORDER

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CRL.R.C.N o.5' t2 of 201 9

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DISMISSING I' HE CRL.R.C.

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WITHOUT CO:I;TS

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cts(4ffi"-

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Mohammed Ahmed Pasha v. Shake Zareen , Zareena Sultana

Case brief

What is this about?

What did the court decide?

Mohammed Ahmed Pasha v. Shake Zareen , Zareena Sultana

Case brief

What is this about?

What did the court decide?

What the court decided

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