Md. Imtiyaz vs State of Jharkhand and Another

Deoki Nandan Prasad

This criminal revision is directed against the, order dated 14.8.2002 passed by the Principal Judge, Family Court, Ranch! in connection with Maintenance Case No. 64 of 1998, whereby and whereunder the learned Court passed the order allowing maintenance of Rs. 1000/- to be paid to the Opposite party-Momina Khatoon u/s 125 of the Code of Criminal Procedure.

The short facts giving rise to this application that the Opposite party No. 2 filed a petition u/s 125 Cr. P,C. claiming therein that the Opposite party No. 2 and petitioner got married in November 1984 at village Simaliya, PS-Ratu, District-Ranchi and they started residing together. Two children also born out of their wedlock. Petitioner said to have contracted second marriage with one Mairoon in November, 1998 and at that time the petitioner, assured the Opposite party No. 2 that he would keep them separately and take all care of them, but after his second marriage the petitioner changed his view and he started torturing the Opposite party No. 2 and also started demanding a dowry of Rs. 50,000/-. It is further alleged that the opposite party No. 2 was driven away from the house and thereafter she alongwith her children are staying at her father''s place and hence the petition for maintenance was filed.

The petitioner has also filed show cause in the Court of the learned Magistrate when the said case was pending there and denied the allegation. It has been averred that the petitioner has already divorced the Opposite party No. 2 and she was never tortured. Subsequently, the case was transferred to the Family Court after creation where the Opposite party No. 2 examined five witnesses and after considering the evidences the Court below passed the order impugned.

A counter affidavit, has also been filed on behalf of the Opposite party No. 2 claiming that the petitioner had already filed show cause before the Court below and there is no denial about marriage and the Court below has rightly passed the order allowing maintenance.. It is admitted, that due to misunderstanding their marriage life was not happy and they had taken consenting divorce before the village Panchayat but some Mehr has not been paid to the wife of which she is entitled and, therefore, the Court below rightly passed the order.

The learned counsel appearing of behalf of the petitioner, at the very outset, submitted that the petitioner has not been given opportunity to adduce evidence in the Court and the learned Judge of Family Court passed the order without giving an opportunity to the petitioner to be heard. It is further submitted that the petitioner already filed show cause before the Judicial Magistrate where the case earlier was pending and stated specifically that he has already divorced his wife-Opposite party No. 2 on 24.1.1989 and, therefore, she is not entitled for maintenance in terms of Section 125, Cr.P.C. but even then the learned Magistrate did not consider this fact, nor any specific finding has been given on this point. The learned Judge committed error in not appreciating the case of the petitioner legally and passed the order impugned in haste. It is also submitted that the petitioner already divorced the Opposite party No. 2 on 24.1.1989 and, therefore, petition u/s 125, Cr. P.C. is not maintainable, rather that petition ought to have been decided Under the Muslim Women (Protection of Right on Divorce) Act, 1986. Thus, the impugned order if fit to be set aside.

On the other hand, the learned counsel appearing on behalf of the Opposite party No. 2 contended before me that petitioner already filed show cause in the case which has duly been considered by the Court below and there is no illegality In the order impugned.

It is an admitted position that the petitioner had filed a written statement in the Court of Judicial Magistrate, 1st Class, where the case was earlier pending stating clearly that he divorced his wife/O.P. No. 2 on 24.1.1989. There was also Panchayat held, on that very date which will be evident from Annexure-2 but the Court below did not pass specific order on the point of divorce as alleged by the petitioner. Moreover, no witness has been examined on behalf of the petitioner before the Family Court, though written statement already filed before the learned Magistrate could have been taken into account by the Family Court and the petitioner ought to, have given opportunity for adducing evidence in support of his plea but without giving opportunity to the petitioner, the learned Court below passed the order in cryptic way without discussing the evidence in detail. The Opposite party No. 2 also filed the counter affidavit admitting herself about divorce but that matter is also subject to consideration of the Court below.

Section 15 of Family Courts Act, 1984 reads as under :

" 15. Record of oral evidence--In suit or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judges as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum, shall be signed by the witness and the Judge and shall form part of the record".

Thus, it is obvious that there is a provision for examination of the witnesses from both sides and the evidences of both sides must be considered and looked into at the time of deciding the case on merit. When the party took a specific plea about the divorce, the Court has to give specific finding on that point. From bare perusal of the aforesaid finding, it appears that the Court below has not correctly appreciated the evidence and law while deciding the matter finally,

In the result, I find merit in this application, which is allowed. The order impugned dated 14.8.2002 is, hereby, set aside and the matter is remitted back to the Court concerned for deciding it afresh after giving an opportunity to both parties for adducing evidence and also to be heard and for passing the order afresh, in accordance with law.