B.N. Samiulla vs Smt. Madina Begum and Another

N.K. Patil, J.—The petitioner assailing the legality and validity of the order passed by the Family Court in Criminal Miscellaneous No. 444 of 1999, dated 9-11-2001. The petitioner herein is the respondent in the Family Court and the respondents in the present petition are the respondents 1 and 2 in the Family Court in Cri. Misc. No. 444 of 1999. The petitioner has married the first respondent on 10-3-1996 at Davangere as per the rites and customs prevailing in the Muslim community as per the Muslim Law with a fixed mehar amount of Rs. 11,000/- and out of the said wedlock, respondent 2 herein was born on 10-4-1997. The further case of the respondents that the petitioner has demanded money from her parents. Whenever he demanded money, the available funds were provided, but the time had come that the parents of respondent 1 expressed their inability to satisfy any more demands of the petitioner. At this stage, the petitioner started ill-treating respondent 1 and showing his cruel nature in beating mercilessly and even gone to the extent as alleged by respondent 1 that he stopped providing food, clothes and medicines and forced her to do heavy work. The further case of respondent 1 herein is that during the marriage, whatever was demanded by the petitioner was fulfilled and utensils and all dowry items as per the list along with the presents were given. It is further stated that prior to two days of the marriage, a sum of Rs. 50,000/- was paid and after six months of the marriage, Rs. 15,000/- was given and it is also alleged that the petitioner has received Rs. 20,000/- from the brother of the first respondent after one month. At the time of delivery, the petitioner again demanded a sum of Rs. 40,000/- to pay as a deposit to take the house which was very urgent. Accordingly the father of the first respondent has paid the said amount. When things thus stood, in the month of September 1997, the petitioner again demanded a sum of Rupees one lakh to pay the Bank but, at this time the first respondent and her parents and the family members totally refused to fulfil the demand of the petitioner. The further case of respondent 1 that the petitioner started beating and threatening to kill by pouring kerosene on her person or strangle her. The further case of respondent 1 that the petitioner has threatened her with warning that if anybody comes on behalf of her, he will break their bones and threatened that he would finish his life. The jamat people of Davangere have made attempt at reconciliation in the matter but talks failed for the reason that both families of the petitioner and respondent 1 had become adamant. The maternal uncle of the petitioner and a counselor took all interest to advise and to set things right by telling the petitioner, but all were in vain. The first respondent further stated that since from more than two and half years nobody has come to take her oven on festive days and specifically stated that her husband/petitioner is a very money minded person. He has timber business and runs goods transport company and also having his office at Binny Company Road, Davangere. Apart from this, he has got a dozen small businesses and the petitioner has refused to maintain and neglected the first respondent from his marital life and deserted her totally for the last two and half years. Keeping in view all these facts and circumstances, respondent 1 has constrained to file the petition, claiming maintenance amounting to Rs. 500/- per month to each of the respondents.

The petitioner has admitted that the first respondent is his wedded wife and their marriage was solemnised on 10-3-1996 and all other contentions taken by respondent 1 as Stated above have been denied in toto. At any point of time, he neither ill-treated respondent 1 nor he has demanded any money from her brother or taken money as stated by respondent.

The Family Court also made one more attempt at reconciliation between each other. The same also failed. Thereafter it recorded the evidence of both the parties and framed the proper issues. The first respondent has examined herself as P.W. 1 apart from examining P.W. 2. She has also placed her reliance on the documents Exs. P. 4 and P. 2. The petitioner himself has been examined as R.W. 1 and also placed his reliance on the documents Exs. R. 1 to R. 4. The first respondent is at present residing with her parents along with the second respondent.

The evidence of the first respondent discloses that she led happy married life with the petitioner till the birth of the second respondent. The first respondent has stated that the petitioner and his family members treated her with cruelty demanding her to bring money from her parents. It is significant to note that the Family Court has given a specific finding to the effect that "it is seen from the admitted photographs taken at the time of marriage that money was given to the respondent (petitioner) at the hands of his father". In spite of this established fact the petitioner and his family members ill-treated respondent 1 to bring more money. Further, it is given in the finding that due to cruel treatment given by the petitioner and his family members, respondent 1 apprehends the danger to her life. The evidence of the first respondent is fully corroborated by the evidence of P.W. 2 and there is nothing on record to disbelieve their evidence. Further, it has come in the evidence of the petitioner that the first respondent has voluntarily gone to the matrimonial home without any reason. On the other hand, it is proved that due to ill-treatment and cruelty, she has been forced to reside with her parents. Further, a specific finding has been given by the Court below which reads as follows:

"It is also noted that as per the suggestion made in the cross-examination of R.W. 1 (petitioner) that he has taken the second wife by name Saira Banu on 10-6-2000. The nikah register is also produced to prove the second marriage. Taking into consideration of the oral and documentary evidence, the Family Court has given the finding that the first respondent has made out the case entitling her to claim separate maintenance from the petitioner".

Regarding the quantum of maintenance, the Family Court has taken into consideration the income of the petitioner and before determining the amount for maintenance, has taken the status of the petitioner, requirement of the respondents and the cost of living etc. and has come to the conclusion that the first respondent is entitled for a sum of Rs. 500/- as the maintenance and Rs. 200/- to the second respondent and accordingly allowed the maintenance petition filed by the respondents partly and awarded the maintenance of Rs. 500/- to the first respondent and Rs. 200/- to the second respondent for their maintenance from the date of petition.

The learned Counsel appearing for the petitioner has contended that the Family Court has not at all taken into consideration the relevant material produced by the petitioner and there is no opportunity as such has been given to prove that he has not taken the second marriage. The finding given by the Family Court that the nikah register is also produced to prove the second marriage is a concocted document and that has not been made available to the petitioner. If it is made available to the petitioner, the petitioner might have been proved that he has not married Smt. Saira Banu on 10-6-2000. Further, he has stated that at no point of time the petitioner demanded the amount alleged to have been mentioned by the respondent 1 in her petition. They are false and baseless. Therefore, he prayed that the Trial Court has committed an error and in an arbitrary manner fixed maintenance of Rs. 600/- without taking into consideration that the petitioner by profession a coolie and he is not in a position to maintain himself. The question of paying Rs. 500/- maintenance to the respondents is not at all reasonable, nor he is capable to pay the same.

Per contra, the learned Counsel appearing for the respondents, inter alia, contended that respondent 1 has, prima facie, made out a case and established beyond reasonable doubt that the ill-treatment given by the petitioner and as a matter of fact, he has gone to the second marriage and the finding given by the Family Court is strictly on the basis of the material records made available to the Court. To verify the said submission made by the learned Counsel appearing for the respondents, during the course of the arguments today, the learned Counsel has made available the xerox copy of the register maintained by the Anjuman Islam, Haven, marriage register dated 10-6-2000, Receipt No. 260, Sl. No. 260. The said document is written in Urdu. The Court is not in a position to understand Urdu language, nor the Counsel appearing for the petitioner and the respondents, but however the Stenographer of this High Court is conversant to read and explain the Urdu script written in the register. After reading the same, he has explained that the name of the petitioner is Sri G.N. Sameeulla, Occupation: Businessman, aged 26 years and married with one Saira Banu on 10-6-2000. It has been revealed from the nikah register maintained by the Competent Authority as it is the Anjuman Islam, Haven. Therefore, the contention raised by the learned Counsel appearing for the petitioner is liable to be rejected at threshold on this ground alone.

I do not find any error or irregularity for passing the order by the Family Court for awarding maintenance at the rate of Rs. 500/- to be paid to the respondent 1 from the date of petition. As stated above, it is clear from the submission made by the learned Counsels appearing for both the parties and on the pleadings it reveals that the petitioner has in a very systematic manner misused the Court of law and he is a very clever man. He has put his signature in the nikah register in English but, so far as the petition is concerned, he has put his signature in the Vakalat in Kannada and also in the affidavit and gone to the extent to contend that he is not well-conversant with the Kannada language as submitted by the learned Counsel appearing for the petitioner. But after cross-verification of the document as referred above, it reveals from the material records available before the Court that the petitioner has suppressed the material facts before this Court intentionally, and he has not approached this Court with clean hands, nor stated the true facts before the Family Court and as well before this Court. Therefore, this Court is constrained to pass adverse remarks against the petitioner.

Yet another reason on which the writ petition filed by the petitioner liable to be rejected at the threshold is on the question as to whether the husband who wantonly disregards his basic duty of providing the elementary essentials to the wife has even not provided the most basic and most bare necessities, i.e., shelter, food, clothes and other basic essential needs to lead a just and reasonable life in the society. The Family Court after detailed analysis of the evidence recorded the clear finding as stated supra. The petitioner has failed to make out a prima facie case against the wife. This is nothing but abuse of the process of law. The said facts have been stated in detail in the preceding paragraphs.

Keeping in view the facts and circumstances of the case, the petitioner has not made out any prima facie case to interfere in the order passed by the Family Court. Therefore, I do not find any good grounds to interfere with the impugned order.

Accordingly, the revision petition filed by the petitioner is dismissed with costs of Rs. 1,000/-. The said costs would be paid to the 1st respondent within four weeks from the date of receipt of this order.