Ghulam Sabir vs Rayeesa Begum and Another

V.P. Mathur, J.—An application u/s 125 of the Code of Criminal Procedure was moved by Smt. Raisa Begum against her husband Ghulam Sabir on 4-4-1983. It was with the allegations that they had been married about four years ago and cash and ornaments worth Rs. 47,000-00 were given by way of dowry by her parents. Inspite of all this, the husband was constantly nagging her for Scooter, Fridge and television and a pressure was being put upon her in multifarious ways to obtain the same from her parents. She was being physically and mentally tortured and cruelly treated. Ultimately she was turned out about one and a half years ago and since then she is living with her parents. The parents are poor and she being uneducated is unable to maintain herself and since the husband is not caring to take her back nor is sending money to her she claims a monthly maintenance of Rs. 500/- from her husband Ghulam Sabir on the ground that her husband''s income is about Rs. 15,000/- per month.

A written statement was filed by Ghulam Sabir on 17-6-1983. The fact of the marriage was admitted. Separate living for the last one and a half years was also admitted but it is contended that the wife came back to her parents'' house with ornaments worth Rs. 31,000/- and these ornaments had been given to her by her-in-laws at the time of the marriage. Thereafter the husband had constantly been trying to get her back but she did not return and the result was that on 14-2-1983 he divorced her. She has two she-buffaloes and sells the milk of the she buffaloes and is earning about Rs. 30/- per day. The husband has no independent source of income. He sits on the business premises of his father and gets about Rs. 300/- per month by way of pocket expenses.

On behalf of the wife, six witnesses in all were examined. They are PW 1 Raisa Begum herself, PW 2 Babu Singh a neighbour of her father and Chairman of the village, PW 3 Rajab Ali father of the lady, PW 4 Ram Prakash Sharma, from the office of Sales Tax Officer, Khurja, PW 5 Chairanji Lal from the Sales Tax Office, Aligarh. Last witness Madanlal Sharma came from the office of Regional Transport Authority of Aligarh. From the testimony of PWs 4, 5 and 6 and the documents which they brought on the record, it was established that Ghulam Sabir was a partner to the extent of 50 percent in Javed Potteries of Khurja and through this business a sale of Rs. 30,430-00 had been shown in the year 1983-84. Since 1-4-1984 it appears that Ghulam Sabir has ceased to be partner. Similarly in Khair of district Aligarh there is a shop of Timber Merchants and Ghulam Sabir was partner to the extent of half share during the year 1984-85. The partnership was renewed during the year 1986-87. The sale during the year 1981-82 was of Rs. 6000/-. But on 22-3-1983 the Sales Tax Authority assessed the sale at Rs. 55,000/- in a year. Truck No. URB 397 has been registered in the name of Ghulam Sabir in the office of Regional Transport Officer, Aligarh.

On behalf of the husband, Ghulam Sabir himself entered the witness box as DW 1 and also examined one more witness Newazi as DW 2. According to this witness Newazi, his sister is married in village Kamalpur and therefore he visits the village. He saw Raisa Begum selling milk. She had purchased two she buffaloes for a sum of Rs. 4600/- in his presence.

Mr. R. L. Nagar, Special Judicial Magistrate, First Class Aligarh vide his order dated 8-7-1985 after assessing the evidence that was adduced before him came to the conclusion that Raisa Begum was not entitled to any amount of maintenance. He dismissed the petition u/s 125 Code of Criminal Procedure.

Criminal Revision No. 303 of 1985 was then preferred by Raisa Begum and it was decided by Mr. Sripal, VIth Additional Sessions Judge, Aligarh on 13-1-1986. He upset the finding of the learned Magistrate and granted to Raisa Begum a maintenance allowance of Rs. 500/- per month w.e.f. 4-4-1983. Against this order, Criminal Revision No. 148 of 1986 has been preferred.

Raisa Begum moved an application before the learned Magistrate for execution of the order of maintenance dated 13-1-1986 and the learned Chief Judicial Magistrate vide order dated 25-8-1986 directed the issue of recovery warrant of the maintenance amount and against this order Criminal Revision No. 308 of 1986 was preferred. It was disposed of on 27-10-1986 by Mr. P.C. Mathur, IIIrd Additional Sessions Judge of Aligarh. He allowed the revision and quashed the order of the learned Magistrate dated 25-8-1986 and directed the case back to the Chief Judicial Magistrate, Aligarh for fresh decision after affording opportunity to the Applicant to show cause that there was sufficient reason for not complying with the order including the ground that he had divorced his wife. Against this order, Smt. Raisa Begum has filed Criminal Revision No. 308 of 1987. Both the revisions have been heard by me and are being disposed of by this judgment, since they raise connected questions for decision.

The legal position may be made clear. The Muslim Women (Protection of Rights on Divorce) Act, 1986 came into force on May 19, 1986. It means therefore that upto 18-5-1986 whether a woman was or was not divorced, was not a matter of any importance, because in any case she was entitled to maintenance in accordance with the provisions of Section 125 of the Code of Criminal Procedure. But if it is established that she had been divorced prior to the date i.e. 19-5-86 then with effect from 19-5-1986 the case shall be covered by the provisions of the ''.Muslim Women (Protection of Rights on Divorce) Act, 1986. If, however, it is not established that she was divorced prior to 19-5-1986 then up to the date of divorce she will be entitled to maintenance u/s 125 of the Code of Criminal Procedure, as the Act of 1986 is not retrospective in effect. But from the date of divorce action will have to be dealt with in accordance with the provisions of Act of 1986. The third contingency will arise, if evidence shows that the story of divorce, is bogus and actually no divorce has been pronounced. In that case the Muslim Women (Protection of Rights on Divorce) Act, 1986 will have no application and the case will be covered by the provisions of Section 125 of the Code of Criminal Procedure.

I will first take up the matter raised in the revision filed by Ghulam Sabir being Criminal Revision No. 148 of 1986. So far as the statuts of Smt. Raisa Begum and of her husband Ghulam Sabir is concerned, the evidence on the record is sufficient to hold that the lady has no means to subsistence, is completely unlettered and therefore cannot maintain herself. The story put forth by Ghulam Sabir that she purchased two she buffaloes in the presence of Newazi and by selling milk thereof she is earning Rs. 30/- per day is not established at all. Newazi is a person closely related to Ghulam Sabir. He does not name the person from whom the lady purchased the she buffaloes. The husband has not made any attempt to examine him. There is no documentary evidence of the so called purchase of the she buffaloes. It is now suggested that the lady brought ornaments worth Rs, 31,000/- when she left her husband''s house and from the sale of some of them she raised money enough to purchase the she buffaloes, It is highly improbable that she would be allowed to come to her father''s house with all those ornaments and the husband would not take any action in tthat respect. The story of her having brought ornaments is thus not established at all. She states on oath that she has no buffaloes and does not carry out any profession whatsover, I am in agreement with the learned Sessions Judge that it is not established that the lady has any source of income. The learned Magistrate''s finding to the contrary is perverse and cannot be accepted.

So far as the husband''s monthly income is concerned, both the Courts below have come to the conclusion that he has a monthly income of about Rs. 15,000/-. He owns shares in Pottery business He runs a truck in which also he has half share. He also had some share in timber business in Kasba-Khair (Aligarh). Since there are concurrent findings of fact in this case, it is established that Ghulam Sabir has monthly income of Rs. 15,000/- and his contention that be is getting Rs. 300/- per month only, from his father as pocket expenses cannot be accepted.

Besides Smt. Raisa Begum, there are witnesses Rajah Ali and Babu Singh whose testimony establishes that this lady was turned out by the husband and she came and started living with her father. She is a ycung lady and I am in agreement with the learned Additional Sessions Judge''s assessment that unless she was tortured and turned out she would not have come back to start living with her parents when the husband was sufficiently well off. Babu Singh is an independent witness and his testimony which clearly shows that this girl came in tattered clothes to live with her parents and the parents tried to send her back to her husband was to be accepted. Under these circumstances, I agree with the learned Additional Sessions Judge that the decision made by the learned Magistrate was perverse and not based upon judicial assessment of the evidence that had been adduced before him. The learned Additional Sessions Judge was justified in awarding maintenance amount of Rs. 500/- per month to Smt. Raisa Begum against her husband effective from 4-4-1983.

This brings us to the consideration of the other allied facts. Upto 18-5-1986 undoubtedly Raisa Begum shall be entitled to maintenance amount due at the rate of Rs. 500/- per month with effect from 4-4-1983. The learned Magistrate out-right issued a warrant of realisation. The Sessions Judge has taken a view that this was not proper. He should have first issued a notice to show cause. This view of the learned Sessions Judge is justified. But now that so much time has passed since then, I will direct that the entire amount due from 4-4-1983 to 18-5-1986 at the rate of Rs. 500/- per month shall be deposited by the husband in the court of Chief Judicial Magistrate, Aligarh within a period of four months from today and Smt. Raisa Begum shall be entitled to withdraw this entire amount after moving an application to that effect before the learned Magistrate.

As I have mentioned in the beginning of this judgment, the position with effect from 19-5-86 will require to be re-considered by the learned Chief Judicial Magistrate. He will decide the question whether there has been a divorce in this case and if so, on what date. If he comes to the conclusion that the divorce was given on 4-4-1983 or on any other date prior to the coming into force of the Muslim Women (Protection of Rights on Divorce) Act, 1986, then he will proceed to decide the matter of the entitlement of the wife in the light of the Act, 1986. If he comes to the conclusion after looking into the evidence of the parties adduced before him that the divorce was not pronounced at all, then obviously the Act of 1986 will not apply and the lady shall be entitled to maintenance at the rate of Rs. 500/- per month even after 18-5-1986. For the purpose the matter shall go back before the learned Chief Judicial Magistrare, Aligarh who will afford to the parties an opportunity to adduce evidence on the point of divorce and then decide the matter regarding maintenance etc. from 19-5-86 onwards. Both the revisions stands disposed of accordingly.

The lower court record which has been received here in this case shall be sent back to the Chief Judicial Magistrate, Aligarh forthwith for further proceedings in the matter without delay.