BAI KHADIJABIBI UMRALIYA Vs. HUSEN YUSUF UMAR ALIYA

JUDGEMENT

(1.) This Criminal Revision Application has been directed against the Revisional Orders pronounced by the Ld.Addl. Sessions Judge, Panchmahals at Godhra, in Criminal Revision Application No. 24/84, reversing the orders pronounced by the Ld. JMFC, Kalol dated 22nd December, 1983, awarding the maintenance to the petitioner-wife at the rate of Rs. 75-00 per month.

(2.) The petitioner-wife Khadijabibi had approached the Court of the Ld. JMFC, Kalol by filing the Criminal Misc. Application No. 52/82, against the husband, Husen Yusuf Umar Aliya for the maintenance for herself and her minor daughter. She says that, her marriage with the opponent husband was solemnised according to Muslim Personal Law, and that, when she was in the family-way she was driven out of the matrimonial home by the opponent-husband and thereafter while she was at her maternal home the petitioner No. 2-daughter Afsana was born to her. According to her, when Afsana was aged about 3 years a better understanding (sic.) had prevailed as a result of which, she had reverted to the matrimonial house and a brief co-habitation between them had resulted into yet another conception, but when she was in the family-way by about 3 to 4 months, she was once again driven out of the matrimonial home. According to her, she was under the impression that her husband has divorced her on 5th April 1981. Supporting her claim regarding the quantum of maintenance, she has averred that the husband was working as a mason and also as a contractor and used to earn an amount of Rs. 1000/- to Rs. 1200/- per month. It is on this basis that she had prayed for the maintenance at the rate of Rs. 250/- for herself and at the rale of Rs. 75/- for daughter Afsana, per month. The said case of the petitioner-wife and the minor daughter Afsana came to be challenged by the opponent-husband by filing the written statement at Exh. 9, inter alia denying all the allegations of the petitioner-wife, and further contending that he has never divorced the petitioner-wife and in fact no divorce had taken place on 5th April 1981 as alleged by the petitioner-wife. On the appreciation of the evidence on record, the Ld. Trial Magistrate 3iad come to the conclusion that the petitioner-wife was able to establish her case that the opponent-husband has failed and neglected to maintain her and that, she was entitled to stay separate and claim the maintenance for herself and the minor daughter. Taking into consideration the evidence regarding the income of the opponent-husband, the Ld. Trial Magistrate has awarded the maintenance at the rate of Rs. 75/- to the wife and at the rate of Rs. 50/- to the minor daughter per month by the orders dated 22-12-1983.

(3.) The original-opponent husband had carried the matter in revision before the Sessions Court, Panchmahals at Godhra and the Criminal Revision Application No. 24/84 came to be decided and disposed of by the Ld. Addl. Sessions Judge by the orders dated 26-8-85. The Ld. Addl. Sessions Judge had taken the view that, there was absolutely no evidence to warrant a conclusion of any ill-treatment or cruelty at the hands of the husband and that, the wife who was staying with her husband had left the matrimonial home only on account of her "supposed divorce". In view oi these findings, which appear ex facie erroneous and bereft of any evidence'on record, the Ld. Addl. Sessions Judge has allowed the Revision Application in part and order of maintenance for the applicant wife at the rate of Rs. 75/- per month came to be quashed and set aside. Any how, the maintenance orders in respect of the minor daughter Afsana were protected. The unfortunate wife has been compelled to approach this Court firstly because oi the fact that the Matrimonial and Maintenance Legislations do not and can never provide a stralt-jacket formula to reckon a case of cruelty and secondly because of the dogmatic and illusory concepts of cruelty generated and nourished by our male-dominated society.