RIAZ FATIMA Vs. MOHD SHARIF

JUDGEMENT

(1.) Petitioners No. 1 and 2 claiming themselves to be the wife and daughter, respectively, of respondent, filed two applications for maintenance. The respondent contested these applications primarily on the ground that they were not maintainable inasmuch as the respondent had divorced the petitioner No. 1 much prior to filing of these applications. Therefore, instead of moving under Section 125 Cr.P.C., the remedy of the petitioner No. 1 was to take recourse to the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter called Act). Learned Metropolitan Magistrate, vide common judgment dated 13.5.2000, rejected the contention of the respondent and fixed the maintenance of Rs. 275/- per month to petitioner No. 1 with effect from 1.9.1994 to 30.4.1995 and @ Rs. 400/- per month with effect from 1.5.1998 and awarded maintenance to the petitioner No. 2 @ Rs. 225/- with effect from 1.4.1995 to 30.4.1995 and Rs. 400/- with effect from 1.5.1998. However, in the revision petitions, filed by the respondent against the said order, learned Additional Sessions Judge reversed the order of the Trial Court, accepted the contention and consequently allowed the revision petitions of the respondent herein. Feeling aggrieved by the said judgment dated 31.5.2001 of the learned ASJ, present petition is filed under Section 482 of the Cr.P.C. The question to be decided remains the same. The applicability of the Act, 1986, however, depends on the determination of the dispute between the parties, namely, whether there was divorce between the respondent and petitioner No. 1. Therefore, in order to decide this question, we will have first to go through the factual matrix.

(2.) Petitioner No. 1 claims to have married the respondent some time in the year 1993, according to the Muslim rites and ceremonies in Delhi. She claimed that her parents had given dowry articles including jewellery during her marriage but after few months, the attitude of the respondent became insulting and cruel towards her. He started demanding more dowry and on refusal, he gave merciless beatings to the petitioner No. 1. Same was the attitude of the relatives of the respondent who used to abuse and taunt her. Various allegations of cruelty and harassment on account of demand of dowry are stated. Ultimately, on 14.4.1994, the petitioner No. 1 was turned out of matrimonial home, when she was pregnant about four months, with a threat to return only with dowry or cash or she would be killed. On these allegations, she filed an application under Section 125 Cr.P.C. for maintenance before the learned M.M. on 9.8.1994. Thereafter, petitioner No. 2 daughter of petitioner No. 1 who was born on 15.1.1995 also filed similar application through her mother and natural guardian, namely, petitioner No. 1 on 30.3.1995.

(3.) In the reply, filed by the respondent, he took preliminary objections stating that he had obtained divorce and 'Fatwah' by Mufti in this connection. He also took objection to the territorial jurisdiction on the ground that petitioner was residing at Ghaziabad. Allegations of demand of dowry and harassment were also denied. The learned Trial Court held that since respondent was residing in Delhi and he also failed to prove that petitioner was putting up at Ghaziabad, Delhi Court had the territorial jurisdiction. It further held that respondent had failed to prove the alleged divorce dated 22.5.1994. Respondent had denied paternity of petitioner No. 2. But according to the learned Trial Court, since he did not deny that he was admittedly related to petitioner No. 1 as husband on the date the child might have been conceived and had access to her, presumption under Section 112 of the Indian Evidence Act would arise and petitioner No. 2 would be legitimate child of the respondent.