High Court Jharkhand High Court

Md.Ayub Ansari vs Aisha Khatoon & Ors on 7 May, 2009

Jharkhand High Court
Md.Ayub Ansari vs Aisha Khatoon & Ors on 7 May, 2009
               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr. Revision No.580 of 2007
               Md. Ayub Ansari. ...          ...    ...     ... ...Petitioner
                                  -Versus-
               1. Aisha Khatoon.
               2. Shama Perween.
               3. The State of Jharkhand.       ...     ... ...Opp. Parties
                                  -------------
               CORAM:       THE HON'BLE MR. JUSTICE D.K.SINHA


               For the Petitioner:          Mr. Atanu Banerjee, Advocate.
               For the Opp. Parties:        Mr. Rajan Raj, Advocate.
                                   -------------
               C.A.V. on 13.04.2009                :     Pronounced on 07.05.2009
                                   -------------

D.K.Sinha,J.                 The petitioner has preferred this Cr. Revision for setting

               aside the order impugned dated 11.05.2007 passed in Misc. Case No.18

               of 2005 (T.R.No.168 of 2007) whereby the petition filed on behalf of the

               Opposite-Party under Section 3(1) of the Muslim Women ( Protection of

               Rights on Divorce) Act, 1986 was allowed directing the petitioner herein

               Md. Ayub Ansari to pay a sum of Rs. 1051/- as Dain Mehar to the

               Opposite Party No.1 Aisha Khatoon, a sum of Rs. 500/- per month for

               three months during observation of Iddat period and further a fair

               provision of one time maintenance to the tune of Rs.60,000/- to lead a

               secured life. It was further directed to the petitioner that since the girl

               child was born from consummation of their marriage, the petitioner Md.

               Ayub Ansari would maintain her by making payment of Rs.500/- per

               month to the Opposite Party No.2 (Shama Perween) till attainment of her

               majority.


               2.            The brief fact of the case for appreciation of the Criminal

               Revision is that the Opposite Party No.1 (Aisha Khatoon) was married to

               the petitioner's elder brother Wafiz Zakir who died later on. Thereafter

               the petitioner married to Aisha Khatoon on 11.12.1994 after death of his

               brother. In due course two sons were born to them who were residing

               with the petitioner father. It was stated that the petitioner was working as

               tailor but according to him he was having a very small tailoring shop in
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the interior area of Giridih. Later on, the Opposite Party No.2 (Shama

Perween) was born from them. Certain allegations were made by Aisha

Khatoon that she was physically and mentally tortured by the petitioner

herein and other in-laws to which she had filed a complaint case vide

C.P. Case No.1361 of 2001 before the S.D.J.M., Dhanbad. It was further

alleged that she was driven out from her matrimonial home on

20.05.2001

as she could not be able to satisfy the illegal demand made

by the petitioner. However, during the pendency of the said complaint

petition, the petitioner took her back to his home on positive assurance

but again her misery started. Being fade up she filed a petition for

maintenance under Section 125 Code of Criminal Procedure before the

Principal Judge, Family Court, Dhanbad on 05.05.2003 for maintenance

but again she was persuaded and taken back by the petitioner where he

finally divorced by pronouncement. Finding no way out, she returned to

her parental home. The petitioner appeared and admitted that he had

married to the O.P.No.1 (Aisha Khatoon) on 11.12.1994 after the death

of her first husband who happened to be his elder brother Wafiz Zakir.

The petitioner explained that it was quite unusual to demand an amount

for the reasons that Aisha Khatoon had already lived for seven years

with his elder brother as married wife till his death. Similarly the

allegation that a sewing machine, cycle and clothes were given to the

petitioner on the eve of her remarriage was blatant lie. The petitioner

admitted that two sons were born to him through his wife Aisha Khatoon

but at the same time disowned the paternity of O.P.No.2 Shama

Praveen who was born after an year of pronouncement of “Talak” and at

the relevant time Aisha Khatoon was not bearing pregnancy. The

petitioner further explained that soon after pronouncement of “Talak” on

29.04.2003, in presence of witnesses, he had immediately paid total sum

of Rs.2551/- being the amount of Dain Mehar and Rs.1500/- for the

observation period of Iddat and in that manner all the dues were paid to
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her by the petitioner. The petitioner finally declined to pay any kind of

maintenance to the O.P.No.2 Shama Praveen for the reasons stated that

he disowned her paternity.

3. Learned C.J.M. by a detailed discussions on the basis of

materials on the record and arguments advanced on behalf of parties

held that there was no documentary proof that the petitioner had given

the amount of Dain Mehar to the tune of Rs.1051/- and Rs.1500/- for the

observation period of Iddat. It was further held that the petitioner Md.

Ayub Ansari failed to discharge his onus that O.P.No.2 Shama Perween

was not his daughter as the Opposite Party No.1 had shifted her burden

by saying that the O.P.No.2 was the legitimate daughter of the petitioner.

In such situation, the burden was upon the petitioner to maintain his

female child till the attainment of her majority.

4. While discussing issue No.5 the court held that the

petitioner was a tailor at Giridih having his earning for livelihood and that

his father did not come forward to adduce that the petitioner was

dependant upon him as he was a helping hand in the tailoring business

of his father. It was rightly held that the petitioner failed to adduce any

evidence that the O.P.No.1 (Aisha Khatoon) was capable to earn and

maintain herself and her female child hence a sum of Rs. 60,000/- was

directed to be paid by the petitioner to the O.P.No.1 (Aisha Khatoon) for

the protection of her body and soul and in my view the amount was a

meagre amount for maintenance for rest of her life. However, since the

O.P.No.1 has not preferred any revision either on her behalf or on behalf

of her minor daughter O.P.No.2 aged about 3 years, I have reason to

hold that one time maintenance to the tune of Rs. 60,000/- to the

O.P.No.1 (Aisha Khatoon) would meet the ends of justice. Similarly, I do

not find any reason to interfere with the finding of the learned C.J.M.

while awarding Rs. 500/- per month to the O.P.No.2 being her
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maintenance till attainment of her majority besides, an amount to the

tune of Rs. 1051/- being the amount of Dain Mehar (dower debt) to the

O.P.No.1(Aisha Khatoon). Learned Counsel for the petitioner failed to

show any convincing ground to call for interference in the order

impugned passed by the learned C.J.M. in Misc. Case No. 18 of 2005 on

11.05.2007 and hence the same is upheld with an observation for

compliance.

5. This Criminal Revision is dismissed for the reasons as

aforesaid.

[D.K.Sinha,J.]

P.K.S./A.F.R.