JUDGMENT
O.P. Bishnoi, J.
1. This revision petition has been filed by the husband Abdul Karim against an order dated 7.9.2001 by which, the application of the wife Smt.Kulsum was accepted and an order to the effect that Rs. 400/- per month will be paid by the husband to the wife under Section 125 of the CrPC was passed.
2. The petition for maintenance was moved in the Family Court, Udaipur wherein it was stated that after divorcing his wife, the petitioner married Smt. Kulsum. However, he not only started to treat her with cruelty but ultimately threw her out of the house as a result of which she has been living with her sister, who is not able to maintain her. According to the application, the husband remained in Kuwait for a long period. Presently he is working and earning as a property dealer. He owns a jeep which is run as Taxi.
3. The husband Abdul Karim in his reply admitted the factum of his marriage with smt. Kulsum but denied that she was illiterate or was thrown out of the house. According to the reply, the husband remained in Kuwait for some 16 years between 1983 to 1999 and when he returned from Kuwait and settled in Udaipur, his life was made hell by his wife who started to quarrel with him on the slightest pretext. Further, it was contended that on 1.12.1999 the husband duly divorced his wife by a written document. Subsequently, on 9.4.2000, in a social gathering attended by prominent persons, she was divorced orally and in lieu of ‘Mehar’ a draft for Rs. 5000/- was paid to the wife then and there. It was denied that the husband was a rich person or had any income. It was further contended that the wife was able to maintain herself on her own income. However, it was not disclosed as to what was the monthly income of the wife.
4. Smt. Kulsum examined herself and two more witnesses. Similarly, Abdul Karim examined himself and three more witnesses.
5. The learned Judge, Family Court, Udaipur heard the arguments and delivered the judgment on 7.9.2001. The contention of the husband to the effect that he had divorced his wife, was negatived by the learned Court-below and consequently, an order to pay Rs. 400/- per month as maintenance was passed. Smt. Kulsum has not appeared inspite of service. Instead she has sent her reply through ‘post’. She has denied that she was ever divorced by the husband and has stated that instead of Rs. 400/- per month, she ought to have been awarded a minimum of Rs. 500/- per month as maintenance. The reply is accompanied by an affidavit.
6. The learned counsel for the petitioner has argued that the factum of Talaq’ has been admitted by AW 3 Mohammed Sharif and in view of the fact that he was examined by the wife Smt. Kulsum, it stands proved that she was divorced by her husband.
7. After careful perusal of the evidence, I find that there is no reason to differ with the conclusions drawn by the learned Family Court. As pointed out earlier, the contention of the husband has been to the effect that a divorce was granted through a document dated 1.12.1999. Subsequently, on 9.4.2000, before a gathering, the wife was divorced orally. I find that the evidence of Abdul Karim and his witnesses do not inspire any confidence. He has examined Iqbal Hussain as NAW-2, whose sister is third wife of the petitioner Abdul Karim. The others witness is Ahmed Baksh, who is married to the sister of the petitioner Abdul Karim. The last witness Abdul Hakeem has stated that he is married in the family of the petitioner. In this way, not even a single witness has been examined who can be termed as independent. The testimony of Abdul Karim in respect of the alleged divorce is at logger-heads with the testimony of the other witnesses. Abdul Karim has deposed that before the ‘Panchayat of Muslim Society’, he divorced his wife on 1.12.1999. However, according to Iqbal Hussain and Ahmed Baksh, the date of divorce was 9.4.2000. Thus, the testimony of Abdul Karim is contrary to the allegations made in his reply and the testimony of Iqbal Hussain and Ahmed Baksh is contrary to the testimony of Abdul Karim. Abdul Karim and other witnesses have stated that a ‘Post Card’ proving the factum of ‘Talaq’ was produced by him before the Panchayat. The Panchayat offered to obtain a ‘Fatwa’ from Bareilly in respect of the validity of the post card. However, no such post card or any other document has been produced in the Court. Abdul Karim and his witnesses have stated that before the Panchayat, a ‘cheque’ for Rs. 5,000/- was issuhed by Abdul Karim and was handedover to Smt. Kulsum who got it encased. However, there is no proof from the Bank that such cheque’ was issued and the same was encashed. As a matter of fact, as per reply of Abdul Karim, no cheque was ever issued. As per reply, it was the ‘Demand Draft’, which was handed-over to Smt. Kulsum. Thus, the testimony is contrary to the allegations made in the reply.
8. The learned counsel for the petitioner has drawn my attention towards the order-sheet dated 25.7.2001 of the Family Court wherein it is stated that the wife admitted that Rs. 5,000/- were received on 20.7.2001 by her. I find that there is no allegation anywhere that any ‘Mehar’ was paid on 20.7.2001. However, the demand of ‘Mehar’ follows the factum of ‘Talaq’ which has to be proved by reliable evidence. Which is not the case here. The allegation of the alleged divorce has not been proved in this case. The payment of Rs. 5,000/- on 20.7.2001 goes to show that the earlier allegation of payment on 9.4.2000 was untrue and consequently, the story of divorce dated 9.4.2000 was also untrue.
9. The learned counsel has pointed out that AW-3 Mohammed Sharif, in his cross-examination has admitted that the post card showing the earlier divorce was shown in the Panchayat and oral divorce was also granted in the Panchayat. I find that the husband cannot draw much comfort out of the testimony of AW-3 Mohammed Sharif. May be that the witness was won over or some account, he has admitted the suggestion but from the over-all evidence collected in the case, it cannot be inferred that there was actually a valid divorce between the parties.
10. It is pertinent to note that during cross-examination of Smt. Kulsum, it was not even alleged that there was a valid divorce between the parties. Nor any such suggestion was given during the cross-examination of AW-3 Mohammed Sharif. Non- cross-examined by the husband from his wife Smt. Kulsum, is a factor which cannot be ignored.
11. As pointed out earlier, the husband earned in Kuwait for the last 16 years and the amount of Rs. 400/- as maintenance, cannot be termed as excessive.
12. The result thereof is that there is no merit in this petition and the same is hereby dismissed.