Smt. Mugisha Begum vs State of U.P. and Another

Surendra Kumar, J.—The revision is taken up in the revised list. Learned Counsel for the revisionist, (Smt. Mugisha Begum) has neither appeared to argue nor sent illness slip. Learned AGA for the State/opposite party No. 1, is present.

I have gone through the impugned judgment and order dated 29.11.2001 passed by the Family Judge, Moradabad, in Misc. Case No. 84 of 2001, Mohammad Arif v. Smt. Mugisha Begum, u/s 127 Code of Criminal Procedure whereby the said application was allowed. Smt. Mugisha Begum (revisionist herein) was got married to Mohammad Arif, (opposite party No. 2 in the instant revision) on 22.4.1983 according to Muslim Rites and Customs. They resided together and a daughter was born out of their wedlock. After sometimes, the husband started causing cruelty and misbehaving towards the wife due to non-fulfillment of the some dowry demand, therefore, the wife along with daughter used to reside at parental house. Subsequently, the wife moved an application u/s 125 Code of Criminal Procedure in the court of Ist Additional Munsif Magistrate, Sambhal, Mordabad, which was registered as Case No. 24 of 1985. The learned Munsif Magistrate after recording evidence, granted maintenance to the wife at the rate of Rs. 400/-per month from the date of the order i.e. 1.1.1986 by allowing the application for maintenance ex parte. The husband was directed to make payment of the maintenance allowance. When the husband failed to pay the amount of maintenance, the wife moved an application u/s 125(3) Code of Criminal Procedure in the court of the Family Judge, on 17.8.2000 claiming maintenance of Rs. 70,400/- at the rate of Rs. 400/- per month for a period of 176 months and as per the court''s order, the said amount was recovered from Rashid Akhtar, who is brother of the husband (Mohammad Arif).

Further, it appears from the record that when the aforesaid amount was recovered from his brother Rashid Akhtar, the husband moved an application u/s 127 Code of Criminal Procedure before the Family Court, Moradabad, stating therein that he had divorced his wife Smt. Mugisha Begum with her consent on 5.2.1987 and a compromise deed dated 5.2.1987 was got scribed by Manjoor Ahmed Chisti at Aligarh. The compromise deed was signed by the wife as well as by witnesses.

The wife moved an application u/s 125(3) Code of Criminal Procedure in the court claiming the maintenance on the basis of ex parte order dated 1.1.1986 and in those proceedings, the wife admitted the compromise saying that she had obtained divorce and also Mehar expenses of Iddat period etc. Thus, in the proceedings u/s 125(3) Code of Criminal Procedure the divorce was admitted by the wife. The compromise deed was verified and accepted by the court.

The main claim of the husband in application u/s 127 Code of Criminal Procedure was that since the divorce had been made between the parties, the wife could not claim the maintenance of the aforesaid period of 176 months and the aforesaid sum was wrongly recovered from his brother. Thus, the husband by way of moving an application u/s 127 Code of Criminal Procedure in the Family Court, Moradabad, claimed that the order dated 1.1.1986 by which maintenance allowance was awarded ex parte be quashed. Learned Family Judge, Moradabad, after recording evidence and hearing the parties allowed the application of the husband moved u/s 127 Code of Criminal Procedure by the impugned judgment and order which is assailed in the instant revision by the wife in this Court.

Though no argument has been advanced by the counsel for the revision (wife), I have gone through the impugned judgment and order and record cautiously and carefully.

In the memorandum of the revision, one point raised by the wife is that her husband had never divorced her and no compromise deed was executed between the parties and stamp paper for preparing the same by notary was purchased by the husband and on that stamp paper bought by the husband, compromise deed was prepared.

The second contention on behalf of the wife in the memorandum of the revision is that the Family Court wrongly relied upon photostat copy of the agreement/compromise deed and the same could not be verified by the trial court.

The last contention is that the Family Court has no right to recall the order dated 1.1.1986 passed by Ist Additional Munsif Magistrate, Sambhal, Moradabad in case of the maintenance.

According to the husband, he had divorced his wife Smt. Mugisha Begum on 5.2.1987. The learned Family Judge has given a finding in the impugned judgment and order that the compromise was entered into between the parties as also admitted by the wife that she had been divorced by her husband and she had obtained Mehar, expenses of Iddat period etc. including dowry items. Learned Family Judge has also observed in the impugned judgment and order that the wife is not entitled to obtain maintenance allowance as per the judgment and order dated 17.1.1992 passed in Case No. 99/11/88 u/s 125(3) Code of Criminal Procedure There appears to be no illegality or irregularity of any kind in the impugned judgment and order, hence any kind of interference by this Court is not legally warranted. The impugned judgment and order dated 29.11.2001 passed by learned Family Judge, Moradabad, is just, legal and correct one and is based upon proper appreciation of the evidence and legal approach.

The revision being devoid of merits is dismissed.