K.KIZAR BASHA Vs. HEERA BANU

JUDGEMENT

(1.) This petition is filed to set aside the order passed in the above M.C.No.40 of 2015, dtd. 13/5/2019, on the file of the learned Chief Judicial Magistrate, Trichirappalli.

(2.) The marriage between the petitioner and the first respondent was solemnized on 10/4/2011 and it was second marriage for the petitioner and the first respondent. Out of the wedlock, the second respondent was born on 7/3/2012. At the time of marriage, the parents of the first respondent presided 50 sovereigns of gold jewels to their daughter, 10 sovereigns of gold ornaments to their son-in-law/petitioner and Rs.5,00,000.00 as marriage expenses besides Rs.1,00,000.00 as dowry on the date of marriage. After the marriage, 42 sovereigns of gold jewels and pattu sarees were received by the petitioner for keeping in his custody. Since the first respondent took long leave of one month for marriage, she was removed from service of the bank. On knowing the same, the petitioner ignored the first respondent stating that he married her only as she worked in bank. When the first respondent became pregnant, she was compelled to cause miscarriage by the petitioner. Thereafter, the parents of the first respondent gave Rs.1,00,000.00 as cash to the petitioner. The parents of the first respondent prodded the petitioner to heed to their daughter. When the same was refused by the petitioner, the parents of the first respondent took her to Trichy. The petitioner had come to see the first respondent at her parents house only for five times, before the birth of child. The petitioner also pressed her stomach, while she was pregnant to cause miscarriage. Even in the Jamaath they informed to give divorce. But the first respondent and her parents refused to accept the divorce and they tried to solve the problem through relatives and took effective steps for reunion of the first respondent with the petitioner. The petitioner also treated her as a slave and he also suspected the fidelity of the first respondent. On 5/2/2013, the petitioner's parents throw the bag of the first respondent's parents and dresses of the first respondent on street and pushed them out of home and locked the house and left. So the first respondent and her parents came to Trichy. At that time, all the gold ornaments and other household articles were in the custody of the petitioner. Thereafter, the first respondent had filed a case in M.C.No.100 of 2013 and a suit in O.S.No.747 of 2013, seeking for restitution of conjugal rights on the file of the District Munsif Court, Trichy. In which, the maintenance case was compromised in Lok Adalat on 31/8/2013. Subsequently, the petitioner committed cruelty against her and threatened to kill her. All the efforts taken by the first respondent's parents for reunion went in vain. Again, the parents of the first respondent took her to Trichy. Thereafter, the first respondent lodged a complaint before the All Women Police Station, Jeeyapuram on 6/3/2015 against the petitioner and his family members and the complaint was not received by the said Police Station. Thereafter, the first respondent gave complaint to the Superintendent of Police and also sent by registered Post and it was forwarded to Jeeyapuram Police Station and on enquiry, the petitioner refused to live with the first respondent. The first respondent also filed petition before this Court in Crl.O.P.No.6651 of 2015 to give direction to take action in respect of her complaint as she is willing to live with the petitioner. Hence, this court referred the matter to Mediation and it ended in vain as the petitioner refused to cohabit with the first respondent. The second respondent was studying L.K.G., in private school at Trichy. The respondents are living with the age old parents of the first respondent. Thereafter, in view of the above strained relationship, the first respondent/wife filed the maintenance claim against the petitioner/husband in M.C.No.40 of 2015 on the file of the Chief Judicial Magistrate, Tiruchirappalli. She further stated that the petitioner is working as an Advocate and earning Rs.50,000.00 per month and he also owned house and shops at Ranipettai and earning Rs.30,000.00 per month through rent. He did not even maintain the respondents and he did not spend for his child's education. In the said circumstances, he is liable to pay the maintenance of Rs.10,000.00 to the first respondent and Rs.5,000.00 to the second respondent.

(3.) The husband denied the allegation made by the first respondent and also specifically stated that the marriage between the petitioner and the first respondent was admitted, but the first respondent is not legally wedded wife of the petitioner. The first respondent was already married to one Firoz as admitted by her in maintenance petition and reply notice dtd. 26/2/2013 issued by her. It is not known to the petitioner whether earlier marriage was dissolved in accordance with customs prevailing in Muslim Community. She did not furnish any details of dissolution of her earlier marriage. Hence, she cannot claim maintenance as legally wedded wife of the respondent. In respect of the jewels, he is not aware of the jewels given by her parents at the time of marriage. When she was pregnant at Chennai, she was taken to doctor by the petitioner and the said doctor told that there was small tumour found in the Feotus and advised the petitioner not to take her in two wheeler for more than 5 kms, at least for three months. When the petitioner was not at home, the first respondent went to Trichy by train and she informed that she is going to abort the child as she is not interested in giving birth of the child. He further submitted that she voluntarily left the matrimonial home. Further, she has not discharged her duty as wife. The alleged demand of dowry is not true. The allegations of income of petitioner and rental income are not true. The first respondent is a MBA graduate and she is able to maintain herself and she was bestowed with all capabilities. Hence, he seeks dismissal of the maintenance claim petition.