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Gulrez Ahmed vs State Of U.P.And 2 Others on 20 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

A.F.R.

Court No. – 55

Case :- CRIMINAL REVISION No. – 541 of 2014

Revisionist :- Gulrez Ahmed

Opposite Party :- State Of U.P.And 2 Others

Counsel for Revisionist :- M.J. Akhtar,J.P.Mishra,V.M. Zaidi

Counsel for Opposite Party :- Govt. Advocate, Jitendra Prasad Mishra, Lavkush Kumar Bhatt, Meraj Ahmad Khan,Sushil Kumar Srivastava

Hon’ble Ravindra Nath Kakkar,J.

Heard Sri V. M. Zaidi, learned senior counsel assisted by Sri M. J. Akhtar, learned counsel for the revisionist, Sri Lavkush Kumar Bhatt, learned counsel for the opposite party nos. 2 and 3 and the learned A.G.A. for the State.

This criminal revision has been preferred against the judgement and order dated 24.01.2014 passed by Principal Judge, Family Court, Allahabad allowing the maintenance application of the opposite party nos. 2 3, under Section 125 Cr.P.C. awarding an amount of maintenance Rs. 5,000/- per month to the opposite party no. 2 (wife) and maintenance amount of Rs. 2,000/- per month to the opposite party no. 3 (minor) daughter from the date of the order in Maintenance Case No. 81 of 2012, Arshi Nizam Another Vs. Gulrez Ahmad.

The impugned judgement and order has been mainly challenged on the ground that revisionist has divorced the opposite party no. 2 according to Islamic Shariat on 24.07.2011 in presence of the witnesses.

It is contended on behalf of revisionist that divorce has been communicated to the opposite party no. 2 and the applicant has also filed the affidavit of opposite party no. 2 dated 22.11.2011 in which she has admitted her divorce with the applicant and also admitted the receiving of amount of her mehar and the amount of maintenance during iddat period. It is next contended that opposite party no. 2 (wife) has contacted second marriage with one Mohd. Naseem @ Anni resident of 503, Shahganj, Allahabad and she is residing with him as his wife. In order to substantiate this fact the revisionist has filed the number of documentary evidence consisting of residential certificate issued by the S.D.M. Sadar, Allahabad. Copy of I.D. issued by the Election Commission of India and document relating to her mobile connection and the saving bank account, pass book etc. but the court below illegally disbelieved the said documentary evidence and held that opposite party no. 2 is the wife of the revisionist-applicant and has not contacted second marriage with Mohd. Naseem @ Anni. The next contention was that opposite party no. 2 did not give birth to opposite party no. 3 with the co-habitation of the revisionist-applicant. The place of birth of opposite party no. 3 shown by the opposite party no. 2 in the application filed by her is as Calvin Hospital, Allahabad while in her statement she stated the birth place as Dafrin Hospital, Allahabad. It is further contended that property statement filed by the revisionist establishes that her name recorded as co-sharer in the said property and she is getting sufficient money from the same and she is able to maintain herself. It is further contended that she is B.A. Pass an educated lady and is also having degree of Maullim. It is further contended that she has also inherited family property and running a beauty parlour in Jonstonganj, Allahabad and earning Rs. 20,000/- per month from the same. So she has sufficient means to maintain herself and her daughter. It is further contended that the revisionist has no permanent income and he is an unemployed person. It is further contended that finding of the court below regarding the six shops belonging to the revisionist, running a printing shop, letting out the five remaining shops and also running one diagnosis centre in the name of Indira Diagnosis and on that basis assessing the income of the revisionist as Rs. 30,000/- per month is illegal and against the weight of evidence.

It is next contended that revisionist is residing in a tenanted house and Smt. Fahmida Shaheen is not the mother of the applicant/revisionist. The name of the mother of the revisionist-applicant is Smt. Sayyada Begum. So the court below has wrongly believed the documentary evidence holding that revisionist-applicant has the ancestral property. It is next contended that the income of the revisionist-applicant initially assessed as Rs. 3,000/- per month but the court below has awarded the maintenance amount of Rs. 7,000/- per month to the opposite party nos. 2 and 3 and in last it has been argued by the learned counsel for the revisionist-applicant that from the entire evidence available on record, this fact is fully proved that revisionist has divorced the opposite party no. 2 who has contacted the second marriage with one Mohd. Naseem @ Anni and the opposite party no. 2 is also having sufficient property in her name and she is earning Rs. 20,000/- per month from her beauty parlour and presently residing with her married husband. It is further contended that the proceedings under Section 125 Cr.P.C. is not maintainable. Therefore, the impugned judgement and order passed by the court below is illegal, perverse and void and not sustainable in the eye of law.

Rebutting the above arguments, learned counsel for the opposite party nos. 2 and 3 submitted that the impugned judgement and order is legal, just and proper and all the points which have been raised in this revision, have already been dealt with by the learned court below. Finding of the learned court below is based on oral as well as documentary evidence adduced by both the parties. The learned court below in the impugned judgement categorically recorded that opposite party no. 2 is the wife of the revisionist and opposite party no. 3 is daughter born out from the wedlock. The documents pertaining with the divorce and the affidavit filed in support of it found to be forged and fabricated and the remarriage of opposite party no. 2 as alleged with one Mohd. Naseem @ Anni was disbelieved and further court below found that there are sufficient reasons to live separate the opposite party no. 2 from her husband and the opposite party no. 2 is unable to maintain herself. It is further contended that learned court below assessing the income of the revisionist as Rs. 30,000/- per month, awarded maintenance amount of Rs. 5,000/- per month to the opposite party no. 2 and Rs. 2,000/- per month as maintenance amount to opposite party no. 3 ( minor daughter). So the impugned judgement and order is well reasoned and passed on the basis of oral as well as documentary evidence adduced before the court below. Neither it can said to be illegal nor perverse, so this revision deserves to be dismissed.

I have considered the submission raised by both the parties and perused the impugned judgement and order alongwith record available.

So far as contention with regard to the divorce is concerned, I would like to refer certain legal propositions on the subject:-

In 2010 (1) JIC 781 (SC), Shabana Bano Vs. Imran Khan, Hon’ble Apex Court considering the provisions of Section 7 Family Courts Act, 1984 which relates to the jurisdiction of Family Court and provision of Section 20 of Family Courts Act, 1984 which provides overriding effect of the Act over all other enactments in force dealing with this issue held that:-

“Petition under Section 125 of the Cr.P.C. would be maintainable before the Family Court as long as appellant does not remarry. The amount of maintenance to be awarded under Section 125 of Cr.P.C. cannot be restricted for the Iddat period only.”

In 2014 (2) JIC 608 SC, Shamim Bano Vs. Ashraf Khan, Hon’ble Supreme Court observed that:-

“We may note that while taking note of the factual score to the effect that the plea of divorce was not accepted by the Magistrate which was upheld by the High Court, the Constitution Bench opined that as the Magistrate could exercise power under Section 125 of the Code for grant of maintenance in favour of a divorced Muslim Woman under the Act, the order did not warrant any interference.”

It was further observed that:-

“When the appellant-wife filed application under Section 3 of the Muslim Women (Protection of right on divorce) Act 1986, she exercised her option. As the Magistrate still retains the power of granting maintenance under Section 125 of the Code to a divorced Muslim woman and the proceeding was continuing without any objection and the ultimate result would be the same, there was no justification on the part of the High Court to hold that the proceeding after the divorce took place was not maintainable.”

Now coming to the factual aspect of this case, it transpires from the record that revisionist Gulrez Ahmed had filed a declaratory suit to the effect of divorce before the Family Court which is Suit No. 1288 of 2011, so it is evident of the fact that divorce between Gulrez Ahmed and his wife Smt. Arshi Nizam is still pending and requires declaration by the Family Court. As per legal proposition stated above even the divorced lady is entitled for the maintenance till her remarriage.

Now the question arises that divorce as stated by the revisionist, its declaration is still pending and further even the muslim divorced wife is entitled for the maintenance under Section 125 Cr.P.C. until her remarriage. Therefore, the argument of the learned counsel for the revisionist that opposite party no. 2 is a divorced muslim lady, in my view is devoid of merit. The next point which is under consideration is that whether the opposite party no. 2 Smt. Arshi Nizam had contacted the second marriage with Mohd. Naseem @ Anni.

The said fact is denied by the opposite party no. 2 Smt. Arshi Nizam that she has contacted second marriage. However to substantiate this fact, revisionist has filed residential certificate, copy of I. D. Card issued by Election Commission of India and reliance mobile connection.

The aforesaid documents are stated by the opposite party no. 2 as fabricated and forged documents. This disputed fact has been considerably dealt with by the Court below and in order to substantiate it an order of the competent authority available on record to the extent that this certificate has already been cancelled. So far as, ration card is concerned that too found to be not issued by the District Supply Officer.

Further, the opposite party no. 2 made a complaint to the Senior Superintendent of Police with regard to the fabrication and forged documents prepared by the revisionist and the case was registered and investigated and in supplementary counter affidavit filed on behalf of opposite party nos. 2 and 3 in paragraph no. 4, it is specifically stated that F.I.R. bearing case Crime No. 957 of 2013, under Sections 419, 420, 467, 468, 471 I.P.C. at P.S. Colonelganj, District-Allahabad, the Investigating Officer illegally submitted the final report and against which protest petition was filed on 05.05.2015 and the same was allowed by the Special Chief Judicial Magistrate, Allahabad vide order dated 28.06.2016 whereby the final report was rejected and further investigation was ordered.

The next contention with regard to the affidavit alleged to be executed by the opposite party no. 2 is concerned, it does not find support by the impugned judgement and order of the court below. It is pertinent to mention here that opposite party no. 2 (wife) on oath has denied her signature on the affidavit. Although none of the parties has adduced any expert witness on the dispute of signature. Even the revisionist who is husband of the opposite party no. 2 who has tendered this affidavit in his evidence has not made any attempt to get it examined by any expert witness to prove the divorce. Further, the conditions of the affidavit in paragraph nos. 5 and 6 found to be not understandable stating therein that after divorce opposite party no. 2 will not be objected for the second marriage and further she will keep custody of the minor daughter Umra for 7 years and get her handed over to her husband Gulrez Ahmed thereafter. Further, I would like to mention that pictorial appearance of the signature as alleged to be of Arshi Nizam (wife), if compared with her admitted standard signature, does not tally with each other in shape and design of all the alphabet of the signature. Further, I would like to mention that it is against the ordinary prudence that if the opposite party no. 2 had remarried with one Naseem @ Anni then why she will run from pillar to post to get the maintenance for her and her minor daughter. Further, why the revisionist has not attempted to produce the second husband of the opposite party no. 2 as a witness before court below. In order to prove the second marriage of opposite party no. 2, neither Nikahnama was produced nor the Kazi who solemnized the second marriage of opposite party no. 2 was attempted to produce as a witness. This fact itself is a question mark which adversely infer the revisionist’s case with regard to the second marriage.

Now the third contention as raised by the learned counsel for the revisionist that opposite party no. 3 (minor daughter) Umra has not been born out of the wedlock, this contention is devoid of merit because of the fact that documentary evidence has been tendered which goes to establish that minor child Umra born on 21.06.2011. Only because in her application as she has mentioned that Umra born in Calvin Hospital and in her statement opposite party no. 2 stated that she born in Dafrin Hospital, this contradiction itself does not go to affect the birth of minor daughter Umra. It is an established fact that minor daughter Umra born on 21.06.2011 and it is the case of the revisionist that divorce was effected on 24.07.2011. Under these facts situation when the divorce itself is under dispute and the minor daughter born prior to the alleged divorce then there is presumption of law that minor daughter born under the wedlock of both the spouses and further to add that in pleadings and statement of the revisionist, there has not been any specific denial with regard to the paternity of the minor daughter. So, I am of the view that this factual dispute has only been raised in order to evade the liability of the father to maintain his daughter.

So far as the last issue with regard to the income of the revisionist-applicant (husband) and income of the non-applicant/opposite party no. 2 (wife) is concerned, it is relevant to mention that property documents filed in order to prove the ownership of a house of the opposite party no. 2 reveals that the name of the opposite party no. 2 is mentioned as a co-sharer of the property alongwith others and that pertains to small house of EWs . So far as earning of the opposite party no. 2 (wife) is concerned no substantial evidence to the effect of monthly income has been tendered by the revisionist. So far as the income of the revisionist-applicant is concerned, documentary evidence has been filed by opposite party no. 2 although these documents pertains to the property (house) which denied by the revisionist but only point I would like to emphasis that it is an admitted fact that revisionist Gulrez Ahmed is son of Ibney Ahmad. The revisionist has denied even the name of his mother as Fahmida Saheen. In a voter list which is available on record and filed by the opposite party no. 2 clearly indicates the name Fahmida Saheen as a wife of Ibney Ahmad. It is stranged enough that in order to escape from the liability to maintain his wife and minor daughter, the revisionist dared to deny the name of his real mother.

So far as the last contention of the learned counsel for the revisionist is that initially the income of the revisionist was assessed as Rs. 3,000/- and without any hearing it was corrected as Rs. 30,000/- per month. I do not agree with the argument raised by the learned counsel for the revisionist to the effect that clerical mistake can be rectified at any stage. Perusal of the entire judgement and order goes to show that it was intention of the court below to assess the income of the revisionist as Rs. 30,000/- per month. Taking all the income and properties of the revisionist as well as statement of the opposite party no. 2 into consideration only Rs. 5,000/- as maintenance to opposite party no. 2 and maintenance of Rs. 2,000/- for her minor daughter has been awarded. Maintenance amount by no stretch of imagination can be said to be on a higher side.

Considering all the facts and circumstances, social status of the parties, I am of the view that impugned judgement and order is based on sound reasoning and trial court has recorded categorical and specific finding against the revisionist while passing the order impugned. There appears no material irregularity or illegality in the impugned judgement and order under challenge, it does not warrant any interference by this Court.

The revision is accordingly dismissed.

Order Date :- 20.12.2017

AKT

 

 

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