ORDER
P.K. Tripathy, J.
1. Heard
2. This revision is directed against the order dated 7-5-1997 in Criminal Proceeding No. 458 of 1991 of the Court of Judge, Family Court, Cuttack under Section 125 of the Code of Criminal Procedure, 1973 (in short ‘the Code’).
3. Inter se relationship is, not disputed that petitioner is the husband or opp. party No. 1 and father of opp. party No. 2. Admittedly, parties are Muslim by faith and they are governed by their personal law. Alleging ill-treatment and cruelty against the petitioner and lack of funds to maintain themselves, the opposite parties filed petition Under Section 125 of the Code claiming monthly maintenance of Rs. 300/- and Rs. 200/- respectively for opp. parties 1 and 2. Petitioner denied to the allegations of ill-treatment and cruelty etc. He advanced the case that opposite party No. 1 was never interested to stay in his house and on 3-1-1988, she gave ‘KHULA’ and left the house of the petitioner. He thus stated that opp. party No. 1 is not entitled to maintenance and that he is willing to maintain opposite party No. 2.
4. To substantiate their case the opposite, parties examined three witnesses including opposite party No. 1 as P.W. No. 1 and relied upon. Ext. 1, the Faisalanama. Petitioner examined three witnesses including himself as O.P.W. No. 1 and relied upon series of documents marked as fixts. A to L/3.
5. Learned Judge, Family Court formulated following four points in order to adjudicate the matter.
(i) If the petitioner has been tortured, ill-treated, neglected and refused maintenance by the O.P. who allegedly drove her out of his house on 16-8-87. ‘
(ii) If the petitioner No. 1 has been divorced by the O.P.
(iii) Is the petitioner has given ‘khula’ to the O.P. and thereby deserted him; and
(iv) If the petitioner is entitled to any maintenance.
6. On assessment of evidence in record, learned Judge, Family Court recorded the findings that petitioner failed to prove the factum of divorce in the manner it is pleaded in the Written statement and, therefore, relationship of wife and husband still subsists between the opposite party No. 1 and the petitioner and that opposite parties having been ill-treated, neglected and refused to be maintained, they are entitled to maintenance. Accordingly, he allowed monthly maintenance @ Rs. 300/- to the opposite party No. 1 and Rs. 250/- to the opp. party No. 2 from the month of March, 1991 (i.e. the month of filing of the Criminal Proceeding).
7. The first point which requires consideration is relating to the plea of divorce and whether the same has been properly decided by the Judge, Family Court. So far as that plea is concerned, relevant portion of the written statement is quoted herewith for proper reference and better appreciation.
That the true fact of the case is that after the marriage she did not like to stay at the house of this opp. party. She also assaulted this opp. party for several times and misbehaved the family members of this opp. party. To most of the time she stayed at her father’s house. This petitioner has gone several times to bring her and advise her not to misbehave this opp. party and his family members. But all the advise and efforts of the petitioner went in vain. Three meetings were held on 23-6-84,1 -10-87 and 3-1 -88 by Moulana Amir, Shariat Orissa, Akber Md. Ismail, Kazihat and in the said meeting it is found the petitioner No. 1 is at fault and an agreement was executed for not misbehaving her husband and family members, still then she did not change her behavior and continued her torture to this Opp. Party and family members. Lastly, she left this Opp. Party’s house by giving Khula on 03-01-88.
It appears from the evidence of Opp. Party No. 1 that as P.W. 1 she denied to the assertion made by the Petitioner that she gave ‘Khula’ on 3-1-1988. In view of such denial undoubtedly the burden was with the petitioner to prove the factum of ‘Khula’ form of divorce by clear and cogent evidence. In paragraph-8 of his evidence (examination-in-chief) petitioner as O.P.W.-1 deposed that:
Again the intolerable manner of the petitioner No. 1 continued for which the Bhadraloks sat again on 3-1-88 at Madarasa at Kazihat. The Maulbies and the parties were present during the said Bhadaraloki At this time Petitioner No. 1 was residing in our house. The Petitioner No. 1 did not agree to stay in my company for which ‘Talaknama’ was prepared between us. Ext. F is the Faisala dt. 3-1-88. Ext. G is the Oriya translated copy of Ext. F. Ext. H is the Talaqnama between us executed in presence of Amere Shariat Maulana Ismail. Ext. J is the English translated copy of Ext. H. (with objection about the correctness of the contents of Ext. H).
O.P.W. 2 in paragraph-2 of his deposition (examination-in chief) stated that:
Again on 3-1-98 the grandmother of the petitioner No. 1 approached our Dharmaguru Md. Ismail in his office. The O. P., myself and O. P’s elder brother were present in the office of Md. Ismail on 3-1-88. The O. P. executed ‘Talaqnama’ and submitted the same before our Dharmaguru. I do not know anything else.
In paragraph-5 of his deposition (in cross-examination) that witness has stated that:
…Talaknama executed by the O. P. is available in the office of our Md. Ismail. I cannot say if petitioner has given Khula to the O. P. Khula is not necessary after Talak and so also vice-versa. Prior to execution of Talaknama, there was no talak to my knowledge.
O.P.W. 3 who is the elder brother of the petitioner has stated in his deposition in the very first paragraph that:
I am the elder brother of O. P. On 3-1-88 the O. P. executed a Talaknama in the office of our Dharmaguru Md. Ismail. I have signed in the Talaknama. By executing the said Talaknama, the O. P. divorced his wife-petitioner who is known as Chanda Bibi.” It is apparent on the face of such evidence that petitioner did not even attempted to prove the factum of ‘Khula’ said to have been given by Opposite Party. On the other hand, the factum of ‘talaq’ on 3-1-88 was not pleaded in the written statement and the fact of Talaq was sought to be proved through the abovenoted inconsistent evidence besides being withholding the best evidence i.e. the evidence of the concerned Maulbi etc.
8. Learned Judge, Family Court while adjudicating the plea of divorce took into consideration the abovenoted evidence and various other circumstances appearing in the evidence led by both the parties relating to the conduct of the petitioner vis-a-vis the plea of divorce and rejected the same on the ground that such a plea was not proved. On a bare perusal of the abovenoted evidence, it appears that there is no consistency in the fact pleaded and the factum sought to be proved by the petitioner relating to the marital status.
9. Learned counsel for the petitioner argues that lower Court failed to appreciate the evidence in view of improper understanding of the Mohammedan Law on the factum of divorce. The aforesaid criticism, on the face of the findings recorded by learned Judge, Family Court is found to be not correct. While stating about the law on divorce in Muslim Law, learned Judge, Family Court has recorded as follows :
6. The words ‘Divorce’, ‘Khula’ and ‘Mubarat’ have been explained in ‘KORAN’ in the following manner:
(a) “When the proposal of dissolution of the marriage tie is initiated from the side of the husband it is called ‘Talaq’ and when initiated by the wife is called ‘Khula’. Assuming the dissolution of the marital tie is done by mutual consent it is called ‘Mubarat’.
(b) ‘Talaq’ may be oral or written. The Kaji has the power of dissolving the marriage on the application of either the husband or the wife on the ground of cruelty, desertion or like cause. In ‘KORAN’ it has been observed that the parties should settle their conjugal disputes through arbitration in presence of the family members of the husband and the wife.
When asked learned counsel for the petitioner does not dispute correctness of the aforesaid statement of law on divorce. In paragraph-7 of the impugned judgment, lower Court has further recorded that:
The petitioner No. 1 has stoutly disputed the fact of ‘Talaq’ and ‘Khula’. No case of ‘Mubarat’ has been advanced by the parties.
In view of such findings the criticism levelled against the impugned judgment regarding lack of proper application of law by the Judge, Family Court is found to be not sustainable. Fact remains that petitioner neither pleaded a case of Talaq nor proved the same. On the contrary, the plea of Khula as advanced in the written statement was not at all proved. Therefore, learned Judge, Family Court was correct in Ms finding and conclusion that petitioner failed to prove the factum of divorce.
10. Learned counsel for the petitioner further argues that the plea of divorce even if not taken in the written statement if it is tendered at the stage of evidence then also that is sufficient to prove the factum of divorce at least from that date. In support of that contention he relied upon the case of Sayad Nawaj Ali alias Nati v. Rasida Begum (1991) 71 Cut LT 257. Relying on the ratio in the case of Sk. Mohiuddin v. Hasina (1988) 2 Orissa LR 163, in the above-cited decision this Court held that the plea of divorce raised in the written statement or in the suit filed for declaration of divorce was sufficient to sever the marital status between the Mohammedan couple and at least from the date of such declaration such relationship severs and it amounts to divorce in view of the provisions in the Mohammedan Law. Hardly there can be any dispute regarding that principle. But in the present case, petitioner neither took the plea of Talaq in his written statement nor he led evidence to prove the plea that opposite party No. 1 gave ‘Khula’ on 3-1-1988. In his entire evidence, Petitioner has also not specifically stated and proved the factum of Talaq. As noted earlier, evidence in that regard is contradictory and not reliable. In the case of Alimuddin Khan v. Nasiran Bibi (1998) 14 Orissa Cri R 224 : 1998 Cri LJ 1811 taking somewhat a similar circumstance, this Court while upholding an order of maintenance Under Section 125, Cr. P.C. in favour of a Muslim Woman has held that:
13. Petitioner has relied on the case of Sk. Mohiuddin v. Hasina Bibi 1988 (II) OLR 163, where this Court has held that a factum of divorce pleaded in the written statement is sufficient to convey the intention of the Muslim husband regarding the divorce and if not earlier it will be effective at least from the date when the written statement is filed containing such statement. The aforesaid ratio cannot be extended to this case because of the fact that petitioner has failed to prove that he had divorced his wife in accordance with the custom and their personal law. There is always a distinction between pleading of a fact and mere assertion without having the intention to divorce. At least from the evidence in record and the finding recorded by the S.D.J.M, it is not clear that the petitioner intended to divorce the opposite party No. 1 and in furtherance thereof did all that is required as per the law and custom.” It is thus found that learned Judge, Family Court on proper appreciation of law and evidence recorded the finding being based on proper assessment of evidence in record, this Court is not inclined to interfere with that finding.
11. The second contention of the petitioner is regarding grant of excess amount of maintenance in favour of Opposite Party No. 2. On perusal of the petition, under Section 125 of the Code and the impugned judgment, the said criticism is found to be correct. At the risk of repetition it may be noted that opposite parties prayed for monthly maintenance of Rs. 200/- for opposite party No. 2, but an amount of Rs. 250/- has been granted in her favour. Relying upon the case of Lakshmidhar Panigrahi v. Smt. Reboti Panigrahi (1985) 2 Crimes 967, learned counsel for the petitioner argued that the excess amount of maintenance granted in favour of Opposite Party No. 2 may be interfered with. Learned counsel for the Opposite Parties argues that in view of rise in price no fault can be found with the enhanced rate of maintenance granted to Opposite Party No. 2. He has failed to take note of the fact that order for maintenance has been granted with effect from March 1991. Apart from that, no evidence was tendered on behalf of the Opposite Parties for grant of maintenance at the enhanced rate. Therefore, learned Judge, Family Court was not correct in granting monthly maintenance to the Opposite Party No. 2 at a higher rate than the amount which was prayed for. Accordingly, the quantum of monthly maintenance with respect to Opposite, Party No. 2 is reduced to Rs. 200/-from Rs. 250/- per month.
In the result, while confirming the findings on all the issues and quantum of monthly maintenance granted in favour of the Opposite Party No. 1, the rate of monthly maintenance granted in favour of Opposite Party No. 2 is reduced to Rs. 200/- in the aforesaid manner and accordingly the revision is allowed in part.