SHAIK APSAR Vs. STATE OF A P

JUDGEMENT

(1.) This Criminal Revision is directed against the judgment in Crl.R.P.No. 62 of 2001 on the file of Court of Sessions Prakasam Division, Ongole, setting aside the order of granting maintenance to the petitioner herein.

(2.) The factual matrix that arise for consideration can be briefly stated as follows: The revision petitioner is the wife of the second respondent herein having married him as per the Muslim Religious Customs on 11-3-1991 at Annavarappadu. She joined the company of the second respondent herein and they lived happily for rome time. They gave birth to two children who were the respondents 2 and 3. The second respondent demanded cash for his business and his mother-in-law out of love and affection alienated her house in his favour and the respondent having not satisfied with the same began demanding for some more amount and he also had woman weakness and thereafter he began to tease the first petitioner and all of an sudden in the year 1998, he sent the revision petitioner herein to her mother's house on some false promise. Occasionally he used to visit Chinnaganjam and he was staying at Repalle saying that he had work there. Believing him, the revision petitioner along with children leading her life in her mother's house. The revision petitioner's mother is unable to maintain the petitioners with her marriage (meagre?) ncome as the petitioner is not receiving any amount from the respondent, she came to know that the respondent got married another woman and so he was visiting frequently Repalli she approached the respondent for her maintenance and demanded him to take her to his house and he refused to take her back on some false pretext. Hence, the revision petitioner issued a notice to the respondent to his address at Ongole and Repalle on 9-6-2000 and the respondent gave reply through his counsel with false allegations and failed to provide maintenance to her. Hence, she sought for maintenance to herself and two children against her husband-second respondent. The husband filed a counter denying the averments and contended that his wife was residing at Chinnaganjam and she was intending to lead independent and individual life and she used to tell him that she would convert herself into Hindu and he opposed the same. It was further contended that the revision petitioner deserted him in the month of August, 1999 and reached her mother's house along with children at Chinaganjam along with children. The second respondent has sent elders by name S.N. Munaf and Sk. Rasool Saheb to the revision petitioner to request her to come and lead marital life with him. As the elders mediation failed, again in the first week of January 2000, the respondent approached the revision petitioner and asked her either to live with him or to give divorce. As she refused, on 20-1-2000 the respondent pronounced'talak' at the house of the revision petitioner at Chinaganjam in the presence of S.N. Munaf, Shaik Rasool Saheb and Jamiya Mosque President, Ongole by name Haji Shaik Baji. The petitioner was paid mohar amount of Rs. 525/-, and on the following day in the presence of elders, cash of Rs. 15,000/- and gold of seven sovereigns worth Rs. 28,000/- were given to the revision petitioner towards maintenance of the children and the same was reduced into writing at Chinaganjam on 29-1-2000. Having been a divorced wife, the petitioner is not entitled for any maintenance under the provisions of 125 Cr.P.C. After trial the Additional Munsif Magistrate, Chirala gave finding that the husband has failed to prove the factum of divorce beyond reasonable doubt and awarded maintenance to the wife and children. He has awarded Rs. 300/- to the wife and Rs. 250/- each to the children to be payable by the second respondent herein. Aggrieved by the same, the husband has carried the matter in revision before the District and Sessions Judge, Ongole. The District and Sessions Judge, Ongole set aside the granting of maintenance in so far as the wife is concerned and confirmed the granting of maintenance to the children in Cr.R.P.No. 62 of 2001 on the file of District Court, Ongole. Aggrieved by the judgment given in the said revision by the District and Sessions Judge, Ongole, the wife has invoked the revisional jurisdiction of the High Court.

(3.) The entire issue centers round in respect of the validity of the divorce. Before adverting to the same, it is necessary to understand the Muslim Personal Law and the injunctions given in the Quran as well as traditions from which the principles have to be drawn. It is a common notion that the marriage in respect of Muslims is only a contract. It is stated in the Book Muslim Law of Divorce, K.N. Ahmad, Kitab Bhavan, New Delhi, published in 1978 at page 2 as follows: