Fazley Hussain vs State of U.P. and another

Hon''ble Surendra Kumar, J.—Heard learned counsel for the revisionist and learned A.G.A.

This criminal revision has been preferred against the judgment and order dated 31.3.2005 passed by Sri S.K. Rastogi, the then Additional Chief Metropolitan Magistrate, Court No. 3, Kanpur Nagar in Complaint Case No. 6708 of 2002-Shahina Parveen Vs. Fazley Hussain, u/s 3of Muslim Women (Protection of Rights on Divorce) Act, 1986, Police Station Bekanganj, District Kanpur Nagar, by which the petition/application filed by the wife Smt. Shahina Parveen was allowed and the husband Fazley Hussain was directed to pay a sum of Rs.11,000/- as Mehar and further a sum of Rs. 10,000/- as expenses during Iddat period and also to handover the dowry items to his wife given in the marriage and further to pay Rs. 50,000/- as future maintenance allowance within a month from the date of the said judgment. In the event of not giving back the dowry items to his wife by the husband, the wife can recover a sum of Rs. one lac in lieu of dowry items according to law.

The facts of the case, in brief, are that Smt. Shahina Parveen was married to Fazley Hussain on 5.2.1994 according to Muslim Rites and Customs and a sum of Rs. 11,000/- was fixed as Mehar. A number of items in dowry were given by her parents and relatives to her in the marriage. On the very first night of the marriage, the wife came to know that her husband was impotent as he was unable to have sexual intercourse and the husband had married to her under the pressure of his family. After staying with her husband for about three days after the marriage, she came back to her parental house on the occasion of Eid and went back to matrimonial home. She always tried to make physical relations with her husband but the husband due to impotency could not succeed therein. Consequently, the husband drove out his wife to her parental house only in the wearing clothes and before driving his wife to the parental house, the husband secured her signatures on blank papers. Her husband in order to conceal his impotency, used to demand a Maruti Car in dowry. When the wife came back to her parental house, she disclosed the fact of impotency of her husband and demand of Maruti Car to her parents. In spite of efforts being made between the parties, the dispute could not settled. The wife filed a suit in order to get back her dowry items, just then the husband filed a divorce petition against his wife. When the wife was issued notice of the divorce case, she withdrew her petition seeking dowry items back on 25.4.1994. Since Shahina Parveen was a divorced lady, she filed the aforesaid petition with the aforesaid prayer. The learned trial court after hearing the parties and recording evidence, by the impugned judgment and order decided the aforesaid case.

The husband in the trial court admitted first marriage with Smt. Shahina Parveen and also admitted the amount of Mehar as Rs. 11,000/-. According to the husband, he had obtained an exparte decree for declaration of divorce on 6.9.1995 by filing a Petition No. 269 of 1994-Fazley Hussain Vs. Shahina Parveen. According to the husband, the marriage was consummated between them and in the first night he had made sexual intercourse with his wife with her consent and during the period of first three or four days, the co-habitation between them continued. She did not behave as a wife with the husband. According to the husband, his wife was well educated being a modern lady and did not follow the muslim traditions ignoring the elders'' advice. She left his house along with dowry items, ornaments and clothes etc. on 21.3.1994. When she refused to come back to her husband''s house and to maintain physical relations, the husband divorced her according to Muslim Law on 5.2.1994, which was communicated to her by post on 22.7.1994. The husband has alleged to have made payment of Mehar and Iddat expenses through one Raza Ali.

The trial court by the impugned judgment and order recorded the following findings:-

(i) The Civil Court, Varanasi had decreed the suit seeking declaration for divorce in favour of husband on 6.9.1995 and the decree of Family Court being decree of Civil Court, is a binding upon criminal court. As per the decree of the Family Court dated 6.9.1995, the husband had divorced his wife with effect from 27.7.1994.

(ii) Since the wife was a divorced lady, she was entitled to obtain the amount of Mehar and Iddat expenses and the husband was liable to pay the same.

(iii) The husband had not paid the amount of Mehar and Iddat expenses to his wife and his version to have sent the same through one Raza Ali is not reliable. In fact the wife had not received the same.

(iv) Since the husband is running a medical store and is in a good financial condition, he is bound to pay the aforesaid amount detailed in the impugned judgment and order to his wife.

The first contention of the learned counsel for the revisionist is that he had already paid the amount of Mehar and Iddat expenses to his wife and the finding of the trial court to the contrary is not based on the evidence. On this point, I have gone through the evidence adduced by the parties. I am in full agreement with the finding recorded by the trial court on this point as there are material contradictions on the oral evidence of the witnesses examined on behalf of the husband including him.

The second contention of the learned counsel for the revisionist is that the wife is well educated M.A. passed lady and she is earning as a teacher. On this point, the finding of the learned trial court is very clear that nothing about the salary or other income of the wife was brought on record by the husband. Merely the wife being post graduate can not be supposed to have earned sufficient amount to lead a respectable and proper life according to her status.

The last contention of the learned counsel for the revisionist is that according to the wife, the husband was impotent and unable to consummate the marriage and there was no consummation of the marriage between the parties. There was no question for the wife to observe any Iddat period, hence the husband is not liable to pay any expenses of the Iddat period. I have considered this point seriously going through the evidence on record. The husband had obtained an exparte decree of divorce against his wife from the Family Court, Varanasi. The wife on coming to know about the divorce decree and on being so informed by the husband, was bound to undergo Iddat according to Muslim law, hence the husband is liable to pay the expenses of Iddat period.

In view of the above discussions, I find that there is no illegality or irregularity of any kind in the impugned judgment and order. The impugned judgment and order is just, proper and legal one as the same is based upon proper and correct appreciation of evidence. There is no ground to interfere in the revision. The revision is accordingly dismissed.