Mirza Hashmatulla Beg vs Farzana Hashmatulla Beg and Another

S.W. Puranik, J.—Respondents Smt. Farzana and her daughter Sanober filed an application before the Family Court for grant of maintenance u/s 125 of the Criminal Procedure Code. She claimed Rs. 500/- per month for herself and Rs. 300/- for her daughter, original petitioner No. 2.

During the proceedings the appellant Mirza appeared as original respondent and filed an application, inter alia, contending that he has already divorced his wife under a Talakhnama dated 6th November 1989 in presence of two witnesses and that it was sent by registered post to the original petitioner wife which she refused. He, therefore, contended that the marriage having been dissolved, the Family Court had ceased to have jurisdiction and it was only under Muslim Woman Protection of Divorce Act, 1986 that the case could be governed. No regular written statement seems to have been filed on record on his behalf.

The learned Judge of the Family Court proceeded to record evidence. The petitioner no. 1 examined herself as her witness and examined one Jainabi as witness no. 2 on the question of quantum of maintenance and the income of the respondent. She also examined Mehurnissa as witness no. 3 on the question of income of respondent-husband.

On behalf of respondent-husband the husband examined himself.

After appreciation of the evidence the learned Judge found that there has been a Talakh on 6th November 1989 between the parties and hence from 6th November 1989 onwards the wife Farzana was not entitled to any monthly allowance. He, therefore, directed the husband Mirza to pay monthly allowance of Rs. 200/- to the wife from the date of her petition i.e. 25.5.1989 to the date of Talaq i.e. 6.11.1989. He also directed the husband to pay Rs. 300/- per month to the 2nd petitioner Sanobar, a minor daughter until she attains majority.

Feeling aggrieved by the said order the husband has carried this appeal before this Bench. Smt. Sujata Megre appears for the husband while Shri S.G. Kudle appears for the respondent wife and the child.

It was contended by Mrs. Megre that considering the evidence adduced on record by both the parties as also the contention of the husband in his application before the Family Court before the beginning of the trial, it must be held that the original petitioner Farzana was a divorce and u/s 5 of the Muslim Woman Protection of Divorce Act, 1986 read with Section 3 the Court having jurisdiction under Sections 125 to 128 of the Criminal Procedure Code will not have jurisdiction to try the case but only a Magistrate empowered to hear proceedings under the special Act can deal with the case. She also urged that even according to the judgment delivered by the learned Judge of the Family Court the divorce had taken place on 6-11-1989. As such, he could not have delivered the judgment on 1 (KM 990 in respect of the divorce petitioner no. 1. Mrs. Megre relied on the decision of the Single Judge of this Court delivered in 1988 Maharashtra Law Journal page 781, Mehboob Khan v. Pervin Banu).

Mr. Kudle, learned Advocate for the respondent contended that the respondent has filed cross-objections and opposes the decision of the Family Court in holding that there has been a divorce between the parties.

During the course of arguments by the learned Counsel of both the parties, it was brought to our notice that the pleadings as well as the evidence is recorded perfunctorily without much adherence to the basic requirements to established ingredients. It is also brought to our notice that during the trial the cross-examination was also carried out perfunctorily. For example, her husband Mirza in his examination-in-chief has stated that on the request of the petitioner wife he had given talaq to her by proclaiming the word ''talaq'' thrice and on which date his father was also present. There is absolutely no cross-examination on this aspect. It is further seen from the record that even though the wife in her examination-in-chief has deposed that she had not received any registered talaqnama from the husband yet the Trial Court has proceeded to accept the version of the husband to hold that he had tendered the same by registered post and it was refused. It ought to have been seen that upon denial by the wife of receipt of a registered document the burden had shifted upon the husband or examine the postman concerned to show that the registered letter to envelope was in fact tendered to the wife and was refused by her in his presence.

In view of the several infirmities on record and in light of the peculiar circumstances since the matter is likely to touch the matrimonial life of two parties and affect them permanently, we desire in the interest of justice that the parties be given a fresh opportunity to adduce clear cat evidence and contest the matter on merits according to law.

In the result therefore the appeal and cross-objections are partly allowed. The impugned judgment and order of the learned Judge of the Family Court is quashed and set aside. The matter is remanded back to the Family Court for fresh decision according to law after giving due opportunity to both the parties to adduce their respective evidence with liberty to add or amend their pleadings and re-examine all the ''witnesses afresh. As regards the maintenance awarded by the learned Judge of the Family Court, the appellant husband has paid the wife, original petitioner No. 1 as per the impugned order. He is also paying monthly allowance to his minor daughter at the rate of Rs. 300/- per month. We direct that the husband shall continue to pay Rs. 300/- per month as ad-interim arrangement payable to his minor daughter through his wife petitioner No. 1 until fresh decision by the Family Court.

The Family Court is directed to dispose of the proceedings with utmost expediency after giving due opportunity.