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
2
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
3
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
4
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.