2009 ALL MR (Cri) 2051
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.P. BHANGALE, J.

Parvinbanoo W/O. Abdul Mannan Chaware & Anr.Vs.Abdul Mannan S/O. Sheikh Sattar Chaware

Criminal Revision Application No.232 of 2004

8th October, 2008

Petitioner Counsel: Mr. A. M. QUAZI
Respondent Counsel: Mr. O. W. GUPTA

Criminal P.C. (1973), S.125 - Mohammedan Law - Grant of maintenance - Challenge to - Husband and wife governed by Mohammedan Law - Husband challenging grant of maintenance to wife on ground of Talaq - No evidence whatsoever led so as to prove Talaq - It was also incumbent upon husband to adduce evidence in respect of prior efforts of reconciliation, arbitration etc. and valid reasons to establish divorce according to Mohammedan Law applicable to the parties - In absence of such evidence, held, judgment and order of Magistrate directing grant of maintenance to wife needs to be restored. 2002(3) ALL MR 265 (F.B.) - Rel. on. (Paras 4 to 7)

Cases Cited:
Dagdu Chotu Pathan Vs. Rahimbi Dagdu Pathan, 2002(3) ALL MR 265 (F.B.)=2002(3) Mh.L.J. 602 (F.B.) [Para 3,6]


JUDGMENT

JUDGMENT :- Heard learned counsel for the applicant. Respondent is absent.

2. By this Revision Application, the applicant questions the correctness, legality and propriety of the impugned judgment and order passed by learned 2nd Additional Sessions Judge, Bhandara on 31.8.2004 in Criminal Revision Application No.81/2000 whereby the learned Additional Sessions Judge was pleased to set aside the order granting maintenance to Parveen Banu (applicant no.1 herein).

3. Learned counsel for the applicant made a reference to the ruling of Full Bench in the case of Dagdu Chotu Pathan Vs. Rahimbi Dagdu Pathan reported in 2002(3) Mh.L.J. 602 : [2002(3) ALL MR 265 (F.B.)] in order to submit that there was no justification for learned 2nd Additional Sessions Judge, Bhandara to interfere with the judgment and order passed by learned JMFC Sakoli who awarded maintenance to the applicants herein at the rate of Rs.300/- for each of them, with effect from 20th April, 1999 and cost of Rs.300/-. According to learned counsel for the applicant, the applicant no.1 had disputed the factum of divorce with respondent Abdul Mannan Sk. Sattar Chaware. It was incumbent upon the respondent to legally prove the factum of divorce by leading evidence before the Court, as observed in Dagdu Chotu Pathan's case, 2002(3) ALL MR 265 (F.B.) (cited supra). But, unfortunately, the learned 2nd Additional Sessions Judge though decided Criminal Revision Application No.81/2000 on 31.08.2004 did not take into consideration the Full Bench decision of Bombay High Court, although some other decisions were very much referred to and as such, committed gross error of law to observe that it was sufficient to say that filing of written statement and pronouncement of divorce is a valid communication of divorce and, as such, respondent no.1 is not entitled to maintenance u/s.125 of the Code of Criminal Procedure. This observation was contrary to the principle of law as observed in Full Bench decision (supra).

4. Learned counsel for the applicant contended that in the instant case, although husband had relied upon Talaq, no evidence whatsoever was led so as to prove Talaq and that it was also incumbent upon the respondent-husband to adduce evidence in respect of prior efforts of reconciliation, arbitration etc. and valid reasons to establish divorce according to Mohammedan Law applicable to the parties. It is submitted that in the absence of such evidence, the judgment and order which was passed by learned JMFC Sakoli in Misc. Criminal Case No.151/199 needs to be restored.

5. I must record my agreement with the submissions advanced at the Bar by the learned counsel for the applicant because it cannot be disputed that the respondent-husband was required to prove the factum of talaq by leading necessary evidence before the Court particularly when factum of "talaq" was disputed by the applicant-Parveen Banu.

6. The reasons for the conclusion arrived at in Dagdu's case (cited supra) are, therefore, attracted squarely in this case.

7. In the result Revision Application must be allowed and the same is allowed. Accordingly, the order passed by the learned 2nd Additional Sessions Judge Bhandara dated 31.8.2004 in Criminal Revision Application No.81/2000 is contrary to law and is hereby quashed and set aside. The order passed by the learned Judicial Magistrate First class, Sakoli dated 28.9.2000 in Misc. Criminal Case No.151/1999 stands restored. Revision stands disposed of accordingly.

Ordered accordingly.