SHAIK BAVA BUDAIN Vs. SHAIK JAINAB BEE

JUDGEMENT

(1.) This petition is filed under Section 482 Cr.P.C. requesting the Court to quash the order in Criminal Revision Petition No.5 of 1991 dated 30-11-1992 on the file of the Second Additional Sessions Judge, Madanapalle. The husband is the petitioner before this Court. The wife Shaik Jainab Bee filed a petition under Section 125 Cr.P.C. claiming maintenance. The Principal Magistrate of First Class dismissed the petition on various grounds. He came to the conclusion that the petitioner is able to maintain herself, that the divorce has been established and as the petitioner (the wife) did not opt for application of Sec.125 Cr.P.C. under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Aggrieved by the order of dismissal of the petition, the wife filed Criminal R.P. No.5 of 1991. The learned Additional Sessions Judge came to the conclusion that the Magistrate did not appreciate the evidence properly and that he did not draw the correct inferences. He also came to the conclusion that the factum of divorce is not proved. The learned Additional Sessions Judge also came to the conclusion that the trial Court misread the evidence and came to the conclusion that she was able to maintain herself. The Court pointed out that according to the evidence while they were living at Avanigadda, the wife was selling eatables and she was able to make a net profit of Rs.200/- per month. The Court below also pointed out that this was the position when they were living at Avanigadda and after they shifted to Madanapalle and Gurramkonda where she was not doing any business and there was positive evidence to show that the petitioner was not able to maintain herself. The Court below also found that the present petitioner is now living with his second wife, Pyari and that he is not providing maintenance to her. Hence the wife is certainly entitled to reside separately as her husband is now living with his second wife. Dealing with the quantum of maintenance, the Court below came to the conclusion that the income of the respondent could never be less than Rs.3,000/- per month. On that basis, the maintenance of Rs.300/- per month was awarded.

(2.) In this petition, Mr. P.S. Narayana contended that the findings of the revisional Court are not justified and here is a case where divorce took place long ago and the wife is able to maintain herself. Hence, the order passed by the revisional Court should be reversed. He contended that the order passed by the learned Magistrate is perfectly correct.

(3.) In a petition under Section 482 Cr.P.C. this Court will not go into the questions of fact. The revisional Court categorically found that the divorce pleaded by the husband could not be established. Hence, there is no question of application of Muslim Women (Protection of Rights on Divorce) Act, 1986. Reading the judgment of the revisional Court on point No.(l), I am fully convinced that there is no proof of divorce. As pointed out by the learned Sessions Judge there are strong circumstances which indicate that there was no divorce in this case. In this regard he adverted to Exs.P-2 to P-4, photographs and the fact of living together after the alleged divorce and came to the conclusion that the divorce is not established. The Court below is also justified in marking the reply notice in which divorce pleaded was issued after the case was filed and it is nothing more than a self serving document. The evidence of independent witness Mr. Dastagiri was not produced in the Court. The fact remains that the petitioner-wife is now living separately and her husband-the present petitioner had married the second wife. By reason of second marriage, she is certainly entitled to live separately and claim maintenance.