Criminal Petition No.4868 of 2008

21st October, 2011

Petitioner Counsel: Sri S.C. RANGAPPA
Respondent Counsel: A.V.S. RAMAKRISHNA

Cases Cited:
Mohammad Ali Vs. Fareedunnisa Begum, AIR 1970 AP 298 [Para 5,14,15]
Bodanapu Khasim Vs. Bodanapu Khaderaiah, 1996(1) ALT 736 [Para 6,9]
Imam Saheb Vs. Hajju Bee, 1970 An.W.R. 138 [Para 6,13]
Rosanna Vs. Subbanna, ILR (1970) AP 1010 [Para 9,10]
Daniel Latifi & Anr. Vs. Union of India, 2001(4) ALL MR 829 (S.C.)=(2001) 7 SCC 740 [Para 16]
Iqbal Bano Vs. State of U.P. & Anr., 2007 ALL SCR 1727=(2007) 6 SCC 785 [Para 17]

JUDGMENT

JUDGMENT :- This Criminal Petition is filed under Section 482 Cr.P.C. seeking to quash order dated 6.6.2008 in Crl.R.P.No.70 of 2007 on the file of the II Additional Sessions Judge, Proddatur, Kadapa district confirming order dated 12.11.2007 in M.C.No.10 of 2006 on the file of the I Additional Judicial Magistrate of First Class, Proddatur.

2. The petitioner herein is the respondent in the maintenance case and petitioner in the revision petition, whereas the respondents 1 and 2 herein are the petitioners in the maintenance case and respondents in the revision petition. For the sake of convenience, the parties hereinafter be referred to as they are arrayed in the Maintenance Case.

3. The petitioners 1 and 2, being the wife and daughter of the respondent, filed the petition under Section 125 Cr.P.C. for granting monthly maintenance of Rs.3,000/- to the first of them and Rs.1500/- to the second of them on the ground that the respondent being the husband of first of them and father of second of them neglected and deserted them having got sufficient means. On contest, the enquiry Court partly allowed the petition by order dated 12.11.2007 in the M.C.No.10 of 2006 awarding Rs.750/- per month each to the petitioners with effect from the date of filing the petition, whereby aggrieved by it, the respondent preferred the Crl.R.P.No.70 of 2007 before the II Additional Sessions Judge, Proddatur, which was dismissed imposing costs of Rs.1000/- against the respondent, as a consequence of which, the present petition has been filed.

4. Mainly a dispute is raised about the maintainability of the maintenance case and also revision petition on behalf of the respondent on the ground that both the parties belong to 'Doodhekula' community and they follow the customs of Islam by reason of which, they are to be treated as Mohammedians and there was pronouncement of Talak as per law enforced against the first petitioner and as such Section 125 Cr.P.C. is not applicable to them and the relevant provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 are applicable to them.

5. It is the contention of learned counsel for the respondent-husband that it is clearly admitted by the first petitioner as P.W.1 that her marriage with the respondent took place in a Dargah performed by 'Qazi' as per the customs of Islam and no Hindu marriage will be conducted in Dargah and accordingly a marriage certificate was issued and the behaviour of first petitioner towards the respondent was very cruel and she insisted upon him to set up a separate family leaving apart his parents, which he could not accede, by reason of which, she left her matrimonial home without informing him and later he sent a letter dated 23.4.2006 addressed to her through his counsel conveying 'Talak' for which she sent a reply with false pleas which proves that it was enforced, but she filed the maintenance case claiming to be Hindus and not Muslims, whereas she admitted as P.W.1 that a 'Qazi' had performed their marriage at Kamalapuram Darga on 23.7.1999 and a 'Nikhanama' was drafted then attested by two witnesses which was corroborated by her father P.W.2 and when the parties happened to be of 'Doodhekula' community the relevant customs of Islam practiced by them are to be taken into consideration for the purpose of deciding the question of payment of necessary maintenance to the petitioners. It is further contended by him that even though the relevant papers evidencing 'Talak' was sought to be marked, the enquiry Court refused to do so on the ground that it was not necessary and in any case, in the corresponding counter filed by the respondent, it is pleaded that there was divorce between them and the respondent sent a letter conveying 'Talak' to the first petitioner which are sufficient to hold that there was conveyance of 'Talak' as per law and therefore Section 125 Cr.P.C. is not applicable here and she can at best claim her 'meher' amount and maintenance for the 'Iddat' period from the respondent by virtue of the relevant provisions of 1986 Act. In support of his contention, he has placed reliance upon decision in Mohammad Ali V. Fareedunnisa Begum, AIR 1970 AP 298.

6. On the other hand, it is the contention of learned counsel for the petitioners that it is clearly admitted by R.W.1 in his evidence that though they belong to 'Doodhekula' community, they are not Muslims, whereas according to P.W.1 they live as Hindus only and simply because it is admitted by her and her father that their marriage was performed by a Qazi in a Dargah and 'Nikahnama' was executed by them, the same is not sufficient to uphold that they have been living as Muslims and further 'Talak' is not proved and and therefore the question of application of 'Talak' against her does not arise at all in any case, placing reliance upon the decisions in Bodanapu Khasim V. Bodanapu Khaderaiah, 1996(1) ALT 736 and Imam Saheb V. Hajju Bee, 1970 An.W.R. 138.

7. Therefore, it is to be mainly considered as to whether the parties belonging to 'Doodhekula' community, have been living as Hindus or living as Muslims and there was Talak between them and further Section 125 Cr.P.C. is not applicable and only relevant provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 are applicable here.

8. As contended by the learned counsel for the respondents it is admitted by the first petitioner as P.W.1 and her father i.e. P.W.2 in cross-examination that her marriage with the respondent took place on 23.7.1999 at Kamalapuram Dargah solemnized by a Qazi according to Muslim Personal Law and Custom and she also admitted that 'Nikahnama' was drafted at the time of marriage and it was attested by two witnesses corroborated by her father P.W.2. It is admitted by R.W.1 in his cross-examination that he belongs to Doodhekula caste and he is not a Muslim while affirming that his marriage with the first petitioner took place in the said Dargah performed by the Qazi about which a Nikahnama was prepared then.

9. In Bodanapu Khasim V. Bodanapu Khaderaiah (supra), a similar question had arisen as to whether the parties concerned therein who belonged to 'Doodhekula' community were to be treated as Muslims or Hindus for the purpose of succession and inheritance, in which, this Court held that the Qazi who was examined as D.W.2 testified that Doodhekulas were Muslims and he performed the marriages of the parties according to Muslim Law and Custom and D.Ws.4 to 6 testified that Dudekulas would observe muslim customs and believe in only one God (Allah) and perform namaz in mosque and there was no iota of evidence on record that the appellant-plaintiff and the defendants had ever adopted the Hindu Law of succession and inheritance as their customary law and therefore held that the appellant-plaintiff and the defendants were Muslims and they were governed by the Muslim Law relying upon observations made in Rosanna v.Subbanna [ILR (1970) AP 1010], which are as follows:

"....In deciding the question as to whether a distinct community called Dudekulas consist of Mohammedans or Hindus, there were certain inherent difficulties. The community is made up of individuals and many individuals within the community together form a family. There were several such families within the community which were bound by ties of marriage and social inter course. Even if at any time all the members of a particular community bearing a common name like Dudekulas observed the same religion at one point of time, it need not necessarily follow that, at any other subsequent point of time, all members of that community must belong to that religion or to the same religion whether it be that religion or any other religion. For, it was open to any individual who belonged to one religion to embrance a new religion of his choice. It was open to such persons who embraced a new religion, that is, by conversion to adopt the law relating to that religion".

It was open to a Dudekula to adopt any other religion for example, Christianity and then choose to be covered by law relating to Christians.

Whether the plaintiff and 1st defendant are Mohammedans or Hindus, and, if they are Mohammedans, whether Hindu law of succession and inheritance applied by custom or usage, whether such a custom is not opposed to statute and hence invalid, are based on factual and large volume of evidence. But, even then, the finding has to be restricted to the evidence in that case and cannot be held to be a binding decision regarding the community of Dudekula so as not to give room for any other finding regarding the custom and right by birth in any other case based on evidence in such case.

The plaintiff had categorically pleaded that the parties belong to a community called Dudekulas in Cuddapah district who were originally Hindus but some generations ago began to adopt certain usages of Muslims so far as marriage and some social customs in general and they have been living as joint families following the incidents of Hindu families and customs. The inheritance is also according to Hindu law even if they are to be treated as Muslims, they have by long association and living in the midst of Hindus, have adopted the Hindu joint family system with the incidents of partition and right-by birth and also the Hindu law of inheritance. The Hindu law of joint family and inheritance is, therefore, applicable to the parties who belong to the Dudekula community of this district by virtue of long and immemorial usage and custom."

10. Much emphasis is to be given to the effect that admittedly the marriage between the respondent and the first petitioner took place in the said Dargah as performed by 'Qazi' and consequently 'Nikahnama' was prepared and the people of Dudekula community got no separate personal laws. Therefore, whatever custom of a particular religion they follow the personal laws of that religion are to be made applicable to them having regard to the evidence recorded correspondingly. Significantly, the parties here belong to Kadapa district. General observations were made in Rosanna v. Subbanna that the Dudekula community in Kadapa ditrict accepted Hindu Joint Family System and as such Hindu Customs and Succession Law should be applied to them. When there is specific evidence in that context that they pursue muslim laws or muslim customs, this general view will not have any application.

11. There is no acceptable evidence that the parties have been following Hindu customs, whereas there has been acceptable evidence that their marriage took place in a Dargah performed by a Qazi and then a Nikahnama was prepared which evidence is to be taken as the basis to determine the application of relevant personal laws or customs in the absence of any evidence to the contrary. Though it is established that customs and personal laws of Muslims are applicable to the parties, it is subject to the question of acceptance of Talak claimed by the respondent for deciding the question of maintainability of the application in favour of the respondent. There is no dispute that when once the question of Talak is established, the relevant provisions of 1986 Act are applicable to the case. Therefore, it is to be seen as to whether the respondent has established the question of Talak.

12. In this context, it is the observation of the enquiry Court that the respondent never deposed about the pronouncement of Talak and there is also no evidence as to when and in whose presence it was pronounced and when it was communicated to the wife and further in fact, he deposed in his cross- examination that he did not give any divorce notice to his wife (P.W.1) dated 6.6.2001 and further he admitted that in the notice dated 6.6.2001 he stated that he would give divorce to her and hence he failed to establish the question of Talak. On the basis of the evidence adduced, I agree with this finding.

13. In Imam Saheb V. Hajju Bee (supra), it is observed and held:

"Under Muslim Law, there are different modes of Talak:

1) Talak Ahsan : This consists of a single pronouncement of divorce made during a Thur (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat.

2) Talak Hasan : This consists of three pronouncements made during successive Tuhrs, no intercourse taking place during successive Tuhrs, no intercourse taking place during any of the three Tuhrs.

3) Talak-ul-biddat: This consists of (a) three pronouncements made during a single Tuhr either in one sentence or more than one; or (b) a single pronouncement made during a Tuhr clearly indicating an intention irrevocably to dissolve the marriage."

In view of this, a person who alleges that he has given divorce must establish what form of Talak was pronounced and when it became irrevocable. Unless a person complies with one of the conditions mentioned above, no Talak becomes effective. A mere mention in a written statement, cannot be sufficient to have the effect of divorce unless it is pronounced in the presence of witnesses or the wife herself. This observation is quite applicable here.

14. On the other hand, in Mohammad Ali V. Fareedunnisa Begum (supra), under similar circumstances, this Court observed as under:

"It is thus manifest that the Mohamedan Law confers a special right on the husband and favours the husband more than the wife giving liberty to the husband not only to divorce the wife orally in the manner provided for under the Mohammedan Law, but also issue a notice or file a written statement in defence to a maintenance claim and where such a statement in writing is made that he had divorced his wife in the past long prior to the action brought by the wife, notwithstanding the denial of the wife, the statement of divorce made either by a notice or in a written statement itself amounts to a declaration of divorce as on that date, on which the said statement was made. When the Mohammedan Law permits such a course of action putting the husband in a privileged position and favours him with a special right in the matter of divorce which right or privilege is denied to his spouse, effect shall be given to it without importing notions of discrimination or the divorce laws applicable to Hindus or Christians".

15. Therefore, in this decision, it is observed that even mere filing of the written statement incorporating the plea of issuance of Talak is sufficient to uphold that in fact it was issued and effected, in which case, it would come into force with effect from the date of filing the written statement. But when different modes of implementation of Talaks are there, there should be clear evidence in which mode it was so given. Therefore, the respondent could have placed sufficient evidence in order to uphold his claim of effecting Talak against his wife. Therefore, in view of these reasons, I am unable to agree with the observations made in Mohammad Ali's case (supra). Therefore, the question of Talak is not established and consequently the question of application of the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 is to be ruled out.

16. In Daniel Latifi And Another V. Union of India, (2001) 7 SCC 740 : [2001(4) ALL MR 829 (S.C.)], with reference to relevant circumstances, the Supreme Court held that reasonable and fair provision and maintenance under Section 3 (1) (a) of the Act is not limited only up to the iddat period and it extends for the entire life of a divorced wife unless she involves in remarriage and the emphasis in that section is not on the nature or duration of such provision or maintenance but rather on the time within which the arrangement for their payment should be finalized and executed and to construe the provisions of that Act as less beneficial than the provisions of Chapter IX Cr.P.C. and hold that the husband is liable to pay maintenance only for the iddat period would result in unreasonable discrimination against the divorced Muslim women and render the Act violative of Articles 14, 15 and 21 of the Constitution.

17. Further, in Iqbal Bano V. State of U.P. and Another, (2007) 6 SCC 785 : [2007 ALL SCR 1727], it is observed by the Apex Court with reference to relevant circumstances that the view expressed by the First Revisional Court that no Muslim woman can maintain a petition under Section 125 Cr.P.C. is clearly unsustainable and 1986 Act only applies to divorced women and not to a woman who is not divorced and furthermore the proceedings covered under Section 125 Cr.P.C are civil in nature and even if the Court noticed that there was a divorced Muslim woman who had made an application under Section 125 Cr.P.C. it was open to the Court to treat the same as a petition under the Act of 1986 considering the beneficial nature of the legislation especially since the proceedings under Section 125 Cr.P.C. and claims made under the Act of 1986 are tried by the same Court.

18. The same principles hold good here. Consequently the wife got right to approach under Section 125 Cr.P.C. for her maintenance unless it is proved that there was divorce between them, but however even supposing that there was divorce between them still she got right to approach the Court under Section 3 (1) (a) of the Act of 1986 which imposes condition with regards to the time of payment of the maintenance and the proceedings initiated under Section 125 Cr.P.C. are to be treated as the proceedings under the Act of 1986 for the purpose of paying necessary maintenance to her, as both the matters are to be enquired by the same Court.

For the foregoing reasons, there are no merits in the petition and accordingly, the criminal petition is dismissed.

Petition dismissed.