Case BriefsHigh Courts

Jammu and Kashmir High Court: Rajnesh Oswal, J., heard the instant petition against the order of the Trial Court whereby the petitioner had been directed to pay maintenance to the allegedly divorcee lady. The Bench stated that,

“The petitioner had not led any evidence as to who sent the divorce to the respondent (wife) to prove the plea of Talak. Otherwise also a meager amount of Rs.2000 as has been awarded to the respondent 1 herein, that in the present era of inflation can in no way be termed as either exorbitant or excessive.”

The petitioner contended that he had already divorced his wife vide “Talaq Nama‟ dated 02-08-2011 which was sent to her through registered post. The facts of the case were such that the  wife of the petitioner had filed a petition for interim maintenance before the Trial Court, wherein the petitioner had claimed that he had already divorced her and as such, he was not under any obligation to maintain the divorced lady. The Trial Court, after relying on the verdict of Supreme Court in Shameem Ara v. State of U.P., AIR 2002 S.C. 355,  and considering the evidence on record granted maintenance of Rs.2000 (Rupees Two thousand) per month to the wife.

Referring to the observations of the Trial Court and Sessions Court, the Bench stated that the Magistrate had held that the petitioner had miserably failed to prove the requisites of Talaq and also that Talaknama was sent to the respondent. The petitioner had not been able to prove as to on which date the divorce was pronounced upon the respondent(wife). The delivery of the envelope was also doubtful as the postman had not seen any such record in which he had obtained signatures of the respondent. Moreover, none of the witnesses produced by the petitioner had stated whether any-one tried to reconcile the parties before the divorce. Needless to mention here that if the plea of Talak is taken then the same is required to be proved like any other fact.

The Bench stated that there was not even an iota of evidence that any reconciliation efforts were made by two arbiters one chosen by the wife from her family and the other by the husband from his family. So there was no perversity in the finding returned by the Magistrate and upheld by the Court of revision that the petitioner had not been able to prove the plea of Talak taken in his objections. Furthermore, the petitioner had not led any evidence as to who sent the divorce to the respondent (wife) to prove the plea of Talak. Otherwise also a meager amount of Rs.2000/- (Rupees Two thousand) as has been awarded to the respondent no.1 herein, that in the present era of inflation can in no way be termed as either exorbitant or excessive.

In view of the above, the Court denied to interfere with the orders impugned and the petition was dismissed for being devoid of merit.

[Abdul Majeed Dar V. Hafiza Begum 2021 SCC OnLine J&K 294, Decided On 26-03-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner/Applicant(s): Adv. Parvaiz Nazir

For the Respondent(s): Adv. Shabir Ahmad

Case BriefsHigh Courts

Bombay High Court: Sarang V. Kotwal, J., while denied bail on the light of giving divorce in violation of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019.

Applicant sought anticipatory bail for cases registered under Sections 377, 498 A, 323, 504, 506 of Penal Code, 1860, Section 67 of the Information Technology Act and Section 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

The victim in her FIR stated that the applicant had married twice earlier and had 5 children from his first wife. On obtaining a divorce from the first wife, he got married to the second wife.

When informant got married to the applicant, her mother’s gold was to her and Rs 3,50,000 were spent during the marriage. Further, the applicant gave some intoxicating drink to the first informant and in that situation took some photographs and recorded video fo the informant.

In the FIR, it was mentioned that the applicant had sex with her in October 2018. The applicant had inserted aluminium rod causing bleeding in her private parts as he didn’t want a child from this marriage. 

It was also alleged that the applicant used to harass the victim and used to ask her to bring money from her parental house. On one particular day, the applicant told the first informant to do all the work in the house, which the informant refused to do so and hence she was assaulted by the applicant. On the same day itself, the applicant gave her talaq.

Informant was later left at her parental house and was threatened that all he would make all the videos and photographs viral.

In view of the above, FIR was lodged.

Misbaah Solkar, Counsel for the applicant, R.M. Pethe, APP for the State and Adil Khatri, Counsel for the complainant.

Decision

Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which reads as follows:

“no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person”.

Bench found no reasonable ground for granting anticipatory bail to the present applicant. Informant’s counsel that she endured all the harassment over some period to save her marriage was also not improbable.

Considering the allegations, the applicant does not deserve the protection of anticipatory bail. The fact that the applicant was left at her parental house and her number was blocked, all of this corroborates to the allegations that, he had divorced informant illegally in violation of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019.

Allegations of inserting a rod in informant’s private parts and capturing indecent photos and videos require custodial interrogation.

Hence no anticipation bail was granted. [Ebrahim Mohd. Iqbal Lakdawala v. State of Maharashtra, Anticipatory Bail Application (ST) No. 2224 of 2020, decided on 21-10-2020]

Case BriefsHigh Courts

Allahabad High Court: Pradeep Kumar Srivastava, J., while addressing the present matter, observed that:

… right of maintenance available to wife from husband is an absolute right and even divorce cannot affect this right unless the wife is disqualified on account of remarriage or her sufficient earning.

It was also observed:

Gender justice is a constitutional promise and the provision of maintenance provided under Section 125 of the Code is one of the tools to translate the constitutional promise into social reality. Moreover, Article 21 of the Constitution guarantees every person a right to live with dignity and a dignified life is not possible unless a fair and reasonable provision is made by the husband towards the maintenance of his divorced wife. Therefore, while interpreting and applying this beneficial legislation, the Constitutional vision of equality, liberty and justice, more particularly social justice to the women and marginalized sections of society, must be present when the courts are dealing with an application of destitute wife or helpless children and aged and infirm parents. Social justice adjudication or social context adjudication requires application of equality jurisprudence where the parties to a litigation are unequally situated in terms of socio-economic structure and dilution of the technical procedure often followed in adversarial system.

Instant criminal revision was preferred against the impugned judgment passed by Family Court under Section 125 of the Criminal Procedure Code, 1973 by which OP 2 – Divorced Wife was awarded Rs 3,000 as maintenance.

Before the Court below, the wife gave an application under Section 125 CrPC stating that she was married to revisionist according to the Muslim Personal Law and later during the course of her marriage, her husband and his family demanded motorcycle, refrigerator and dowry and on non-fulfilment of the same, she was beaten up and expelled along with her daughter. On being expelled she along with her daughter started living with her parents.

The wife was totally dependent on her father, later after the death of her father she was facing financial trouble and was not able to maintain herself, hence she claimed maintenance.

Present revision was filed by the husband challenging the impugned judgment on the ground that earlier a case under Section 125 CrPC for maintenance which was filed by wife was decided wherein the maintenance claim of the wife was rejected on the ground that being Muslim she was not entitled for maintenance after divorce beyond period of iddat and by this impugned judgment, the said judgment has been reviewed, which is contrary to law.

Revisionist’s Counsel contended that divorced Muslim wife is not entitled to maintenance under the law applicable to parties and the subsequent application is barred by the principle of res judicata.

In Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, the issue before the court was that where a Muslim woman had been divorced by her husband and paid her mahr, would it indemnify the husband from his obligation to pay maintenance under the provisions of Section 125 CrPC. A five-Judge Constitution Bench of the Supreme Court held that the Code of Criminal Procedure controls the proceedings in such matters and overrides the personal law of the parties and in case of conflict between the terms of the Code and the rights and obligations of the individuals under personal law, the Code would prevail.

In the above-cited case, the important feature of the case was that the wife had managed the matrimonial home for more than 40 years and had borne and reared five children and was incapable of taking up any career or independently supporting herself at that late stage of her life and remarriage was an impossibility in that case. The husband, a successful Advocate, with an approximate income of Rs 5,000 per month provided Rs 200 per month to the divorced wife, who had shared his life for half a century and mothered his five children and was in desperate need of money to survive.

Supreme Court interpreted the provisions of the Act and Section 125 CrPC in such a way as to give recognition to the right of divorced Muslim wife to claim maintenance under Section 125 even for the period beyond iddat period and for the whole life unless she is disqualified for the reasons such as entering into marriage with someone else.

Hence, in view of the above Court found no force in the argument that a divorced Muslim wife is not entitled to maintenance beyond the iddat period.

Section 125 of the Code of Criminal Procedure has been enacted to achieve a social object and the object is to prevent vagrancy and destitution and to provide speedy remedy to deserted or divorced wife, minor children and infirm parents in terms of food, clothing and shelter and minimum needs of one’s life.

 Bench held that when the Supreme Court has interpreted and clarified the law and has laid down that the Muslim divorced wife can still claim maintenance under Section 125 CrPC despite the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, her claim cannot be defeated on the basis of an earlier decision of the court below and the earlier judgment cannot operate as res judicata.

Court while concluding its decision held that:

Section 125 of the Criminal Procedure Code has been enacted with a specific purpose to protect women and children and to prevent vagrancy and destitution among them. This law is not community-centric or religion centric and perhaps, one of the most secular enactment ever made in the country. It is an instrument of social justice and aims to render justice on the basis of equality to wife, in particular, may be divorced including a divorced Muslim wife.

In view of the above, the revision petition was dismissed and the Family Court’s decision was upheld. [Jubair Ahmad v. Ishrat Bano, 2019 SCC OnLine All 4065, decided on 18-10-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Shailendra Shukla, J., while addressing a anticipatory bail application, held that,

“…applicability of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019 is only against the husband and not in-laws.”

The present anticipatory bail application was filed under Section 428 of Code of Criminal Procedure, 1973 as the applicant’s were apprehending their arrest for the offence punishable under Section 498-A Penal Code, 1860, Section 3/4 of Dowry Prohibition Act, 1961 and Section 3/4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Due to some dispute, complainant after her Nikah returned back to her parental house, further the complainant submitted that her husband on 29th March, 2020 pronounced ‘Talaq’ thrice on telephone, thereafter an FIR was lodged against him.

Counsel for objector and State both submitted that after the Nikah when the complainant got pregnant her mother-in-law started alleging that complainant got pregnant much earlier and the child doesn’t belong to her son along with this, she also started asking for money saying that complainant did not give enough dowry to the applicants.

Decision

Bench stated that the applicability of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019 is only against the husband and not in-laws.

Further the Court noted that there was no physical cruelty , it appeared that early pregnancy became the cause of dispute and as per the complainant there was a telephonic call in which husband of the complainant sought termination of the marriage.

Bench found substance in the submission tat demand of dowry after pronouncing divorce was not possible.

Application was allowed and it was directed that in the event of arrest, applicants shall be released on bail. [Rafique Ahmed v. State of M.P., 2020 SCC OnLine MP 1521 , decided on 08-07-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ. dismissed an appeal filed by the appellant-father against the judgment of the Family Court whereby his application under Section 25 of the Guardians and Wards Act, 1890 seeking custody of his minor son was rejected.

The parties were married as per Muslim customs and rites in Delhi. A son was born to them. The respondent-mother gave birth to the child at her paternal home in Hyderabad. In less than 5 months from the date of the birth of their son, the appellant gave talaq to the respondent. Subsequently, the respondent remarried and was now living in Dubai with her second husband and her minor son born from the wedlock with the appellant. The appellant filed the application under Section 25 for custody of the child which was rejected by the Family Court as aforesaid.  Aggrieved, the appellant-father filed the instant appeal.

N.U. Ahmed, Advocate appearing for the appellant, submitted that the respondent has violated the orders of the Family Court, given a false affidavit to the passport authorities and had taken the child away to Dubai which goes to prove that she is not fit to retain his custody and the welfare of the child would be best served if his custody is handed over to the appellant. The second leg of his arguments was that the respondent has got remarried and under the said circumstances, the interest of the child is bound to suffer adversely.

At the outset, relying on Elizabeth Dinshaw v. Arvand Shaw Dinshaw, (1987) 1 SCC 42, the High Court reiterated that when the court is confronted with a question relating to the custody of a minor child, the guiding factor cannot be the legal rights of the warring parties. The sole and pre-eminent criteria that ought to weigh with the court is what would best serve the interest and welfare of the minor.

The High Court noted that after the respondent got married, she left with the child for Dubai, where her husband is working in a multinational company. This goes to show that the respondent has sufficient funds and economic resources to attend to all the needs of the child either for purposes of his schooling or for bringing him up comfortably. In Court’s opinion:

“The respondent’s remarriage can hardly be a ground for the appellant to claim that being the natural guardian of the child, he has a better right to claim his custody, over the respondent. At the end of the day, the court must examine the facts and circumstances of the case and then come to a conclusion as to whether it would be in the better interest of the minor child to remain in the custody of the father or the mother.”

It was then noted that the respondent was sent back to her paternal home in Hyderabad when she was pregnant. The child was delivered by her in Hyderabad on 11-2-2011. The appellant did not go to meet the respondent and see the newborn till the mother and child went back to Delhi on 30-3-2011. Within 1 year therefrom, the respondent and the child who was about 1 year old, returned to her paternal home on 16-3-2012. In less than 3 months, the appellant gave her talaq. It was also an admitted position that on the respondent’s complaint an FIR was registered against the appellant under Sections 498A/406/34 IPC read with Sections 3 and 4 of the Dowry Prohibition Act and the appellant could not manage to get anticipatory bail right up to the Supreme Court. A chargesheet was filed against him and the criminal case is pending.

The appellant and the child had parted company when the child was about 16 months old. The minor was about 1 year old when his mother, the respondent, had returned to her paternal home at Hyderabad. In such a situation, as per the Court, the child who would be 9 years old by now, would not be in a position to recognise the appellant as his father having remained with his mother for 8 long years. The appellant would be no more than a stranger to the child even though he is his father. In such circumstances, the Court was of the opinion that the welfare of the child would be better served if his custody remains with the mother.

Moving to the next point, the Court stated that appellant’s contention that the respondent having violated the orders of the Court, itself was sufficient reason for the custody of the child be taken back from her and handed over to the appellant, is untenable. The Court held that if the appellant was aggrieved by the conduct of the respondent, he is well entitled to take his legal remedies against her but that would not translate into an order in his favour, granting him permanent custody of the child.

Before parting with the matter, the Court also stated that the guardianship petition filed by the appellant appeared to be more a tool to even out a score with the respondent, rather than a genuine means to reach out to the child and take over his custody, purely in his best interest and for his well being.

In such view of the matter, the High Court upheld the order of the Family Court and dismissed the appeal, [Faisal Khan v. Humera,  2020 SCC OnLine Del 572 , decided on 1-5-2020]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Bharati H. Dangre, J., has held that the Muslim Personal Law can in no way curtail the protection granted under the Protection of Women from Domestic Violence Act 2005, from being available to a Muslim woman.

Brief facts of the case were that the respondent-wife had filed a petition for divorce against the husband under Section 2(viii)(a) and (d) of the Dissolution of Muslim Marriages Act, 1939, on grounds of cruelty. She also filed an application under the Domestic Violence Act for maintenance. The petitioner-husband filed objection to the application contending that he had already given talaq to the respondent after she filed the petition for divorce. He contended that the talaq was given by him in pursuance of the desire of the petitioner to get a divorce, as was evident by the petition filed by her; the said talaq should be considered as ‘khula’ (divorce by consent) and therefore according to the Muslim Personal Law that govern the parties, the respondent was not entitled to any maintenance as asked for by her.

The High Court observed that in the present case, the pronouncement of talaq was disputed by the wife and the husband will have to prove the said factum of talaq. As till the time the talaq was not proved, the respondent continued to be legally wedded wife of the petitioner and in that contingency, the question was whether the wife who was in a domestic relationship with the petitioner was entitled to seek relief under the DV Act.

After extensively considering various provisions of the DV Act as well as Acts concerning the rights of women under Muslim Personal Law, Hon’ble Court held that

“perusal of the provisions of the Protection of Women from Domestic Violence Act, 2005 would reveal that it is an enactment to provide for more effective protection for rights of women, guaranteed under the Indian Constitution, who are the victims of the violence … The definition and connotation of “Domestic Violence” under Section 3 of the enactment do not indicate any intention either express or implied to exclude Muslim women. Section 36 of the said enactment provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

The Court held that the provisions of the Muslim Personal Law can in no way curtail the protection provided under Domestic Violence Act. As a result, the impugned order of the Family Court whereby the petitioner was ordered to pay maintenance under the provisions of the DV Act was upheld and the petition dismissed. [Ali Abbas Daruwala v. Shehnaz Daruwala,2018 SCC OnLine Bom 1195, dated 04-05-2018]

Case BriefsHigh Courts

Madras High Court: While examining the validity of certificates issued by the Kazis in the country in general and in Tamil Nadu in particular in respect of Talaq, the Division Bench of Sanjay Kishan Kaul, C.J., and M.M. Sundresh, J., held that for purposes of the courts and legal proceedings, the certificate in respect of Talaq issued by Chief Kazi is only an opinion and has no legal sanctity in view Section 4 of the Kazis Act, 1880 according to which the office of Kazi does not confer on the person any judicial or administrative power.

The Court further allowed the Muslim Personal Law Board to take some time to clarify the format in which these certificates are to be issued and asked Board to submit before it a new format which may remove the ambiguity before ant legal forum and which would be made open to stakeholders for suggestions. In the meantime no Talaq certificate by Muslim Personal Law Board can be issued as an opinion of Chief Kazi.

The instant writ petition was  supported by the Women Lawyers Association. It was prayed before the Court to forbear the Kazis from issuing Talaq certificates and other documents certifying or approving Talaq. It was also contended that the certificates so issued are causing immense confusion in the matrimonial proceedings and also in the understanding by the spouses as to the effect of such a certificate being issued by the Chief Kazi. [Bader Sayeed v. Union Of India, 2017 SCC OnLine Mad 74, decided on 10/01/2017]