MOHAMMAD ZIRGHAM ANSARI Vs. SHAMIMA BEGAM

JUDGEMENT

(1.) This first appeal has been directed against the judgment and order dated 26.5.2015 passed by the Principal Judge, Family Court, Chandauli in Case No. 149 of 2014: Mohammad Zirgham Ansari Vs. Shamima Begum by which, the learned Family Court has dismissed the petition of the appellant/petitioner for declaration of divorce between the parties.

(2.) The appellant/petitioner filed a petition before the learned court below stating that he was married with Shamima Begum /respondent according to Islamic Rights and Rituals on 03.02.2002. After marriage, Shamima Begum started living with the appellant and thereafter the appellant could know that the respondent is quarrelsome woman and she has no love for her husband. She started quarreling with him and his family members and was always inclined to go to her parental house. Finally, finding that relation cannot be continued with her, the appellant/petitioner divorced her on 29.6.2002 before the witnesses by way of Triple Talaq and talaq was communicated by registered post and the amount of divorce was also sent to her by money-order but she refused to receive the same. In respect of divorce given on 29.6.2002, the appellant/petitioner obtained a fatwa verifying the divorce by Sharia court, Varanasi. The petitioner/appellant filed a complaint before the Sharia Court, Varanasi in which respondent was summoned but she did not appear before the court and, therefore, Sharia Court gave judgment in favour of the appellant/petitioner on 10.5.2007. The petitioner/appellant has stated that in case under Section 125 Cr.P.C. which was registered in Chandauli Court as Case No. 81 of 2002: Shamima Begam Vs. Mohd. Zirgham Ansari, he filed written statement stating therein that Shamima Begam is his divorced wife and, therefore, she could not get maintenance. The Chief Judicial Magistrate, Chandauli refused to recognize the talaqnama on the ground that there is no declaratory decree of divorce. Therefore, this petition for declaratory decree in respect of divorce between the parties was filed.

(3.) The respondent-opposite party filed written statement. She denied the plaint allegations and stated that petition was not maintainable. She alleged that marriage between the parties took place on 03.2.2002 in which the amount of said dower was fixed to be Rs.11,000/-. When she went to her in-laws house, she was being harassed by her husband and family members by beating and otherwise. On 12.5.2002, she was beaten by the petitioner/appellant on account of not giving Maruti Car in dowry and he left her on Mughalsarai Railway Station grabbing her stridhan and also threatened that if she came back without Maruti Car, she will be killed. She was medically examined on 13.5.2002. Second time when she went to her in-laws house again on 06.7.2002, she was beaten badly and again she was medically examined on 07.7.2002 in respect of which, a Case No. 127 of 2002 under Sections 498-A, 323, 504, 506 IPC and under Section ¾ Dowry Prohibition Act was registered. On 26.11.2002 she gave birth to a son. On 27.11.2002, the petitioner-appellant gave an application in her case for maintenance to the effect that he has given divorce to her. The said application was rejected by the court on 18.6.2003 against which he filed a criminal revision being Criminal Revision No. 157 of 2003 in the court of District Judge and the same was also dismissed on 23.9.2003. Thus, the plea of divorce was not established and in the case for maintenance the witnesses expressed their ignorance about divorce. Again an application dated 20.11.2004 was given in court in which plea of divorce was taken and the same was rejected by the Chief Judicial Magistrate, Chandauli on 17.1.2006. Against the said order, a criminal writ petition being Criminal Misc. Writ petition No. 9316 of 2006: Mohd. Zirgham Ansari Vs. Shamima Begam was filed before this Court which was also dismissed by the order dated 05.4.2012. The petition for maintenance was disposed of on 07.1.2008 and the learned court below opined that since she has not been given divorce according to Islamic law. Thereafter, this petition was filed by the husband in the court of Civil Judge (Junior Division), Varanasi, which was transferred to the Family court, since no divorce has taken place between the parties, the petition is not maintainable and is liable to be dismissed.