Challenging and impugning the order dated 21.8.2006 passed by the I Additional Principal Family Court, Chennai, in M.C.No.561/2004, this criminal revision case is focussed.
2. Compendiously and concisely, the facts which are absolutely necessary and germane for the disposal of this criminal revision case would run thus:-
(a) The respondents herein filed the M.C.No.561 of 2004 under
Section 125 of Cr.P.C., before the I Additional Principal Family Court, Chennai, seeking maintenance as against the revision petitioner herein. Inasmuch as the revision petitioner resisted the claim, enquiry was conducted.
(b) During enquiry, the first respondent herein(wife) examined herself as P.W.1 and Ex.P1 was marked. The revision petitioner herein(husband) examined himself as R.W.1 along with one Amjathkhan as R.W.2 and Exs.R1 to R5 were marked.
(c) Ultimately, the Family Court awarded maintenance in a sum of Rs.1000/- per month in favour of R1 herein(wife) and Rs.500/- per month in favour of R2 herein(child), payable by the revision petitioner herein.
3. Being aggrieved by and dissatisfied with the said awarding of maintenance, this revision has been filed on various grounds, the gist and kernal of them would run thus:-
The Family Court failed to take into consideration the fact that the revision petitioner being the husband was ready and willing to take back the wife and it was the wife, who was responsible for the rift in the matrimonial relationship between the two. Ignoring the oral and documentary evidence in support of the revision petitioner's plea, the Family Court simply awarded such maintenance. The finding of the Family Court relating to 'talaq' pronounced by the revision petitioner is untenable.
4. Heard both sides.
5. The point for consideration is as to whether there is any perversity or non-application of law in awarding maintenance in favour of the respondents herein, payable by the revision petitioner herein.
6. The learned counsel for the revision petitioner, reiterating the grounds of revision, would advance his argument to the effect that the 'talaq' pronounced was in order and that it was communicated also. However, without applying the law, the Family Court, simply held as though there was no proper 'talaq'.
7. Whereas, the learned counsel for the respondents, by way of torpedoing and pulverising the arguments as put forth by the learned counsel for the revision petitioner, would cite the following decisions of the Honourable Apex Court:
(i) 2003-1-L.W.363 SHAMIM ARA VS. STATE OF U.P.AND ANOTHER, certain excerpts from it would run thus:
"Held: The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected.
(ii) 2003-1-L.W.370 A.S.PARVEEN AKTHAR VS. 1.THE UNION OF INDIA, AND OTHERS, certain excerpts from it would run thus:
". . . . Intimation of divorce made to petitioner through her father that her husband had pronounced Talaq in the presenceh of two witnesses in a simple sitting in Talaq-ul-biddat or Talaq-i-badai form Plea of petitioner that it was not recognised in Quoran and that the Act offends Arts.14, 15 and 21 did not sanction this sinful form of Talaq which is grossly injurious to human rights and is violative of Art.21.
Held: Prayer in the writ petition cannot be granted Petitioner's apprehension that notwithstanding the absence of cause and absence of efforts at reconciliation, this form of talaq may be considered to be valid, is based on a misapprehension of the law Law as declared by the Apex Court is that talaq must be for a reasonable cause, and must be preceded by attempt at reconciliation and only if it fails, talaq may be effected.
Dissolution of Muslim Marriages Act set out grounds on which muslim woman can claim divorce Act does not deal with procedure on which or procedure to be followed when the dissolution is at the instance of the husband Muslim Women Protection etc. Act requires that husband makes reasonable and fair provision for the future of the divorced wife Scope.
The law with regard to talaq, as declared by the Apex Court, is that talaq must be for a reasonable cause and must be preceded by attempt at reconciliation between the husband and the wife by two arbiters one chosen by wife's family and the other from husband's family, and it is only if their attempts fail, talaq may be effected. The judgment of Justice Sidick of this Court in the case of Saleem Basha, 1998 Crl.L.J.4782, is in conformity with the law now declared by the Supreme Court in the case of Shamim Ara 2003-1-L.W.363 = 2002 AIR SCW 4162. The earlier judgments to the contrary of this Court and of other High Courts can no longer be regarded as good law. Having regard to the law now declared by the Apex Court in the case of Shamim Ara, 2003-1-L.W.363 2002 AIR SCW 4162, talaq, in whatever form, must be for a reasonable cause, and must be preceded by attempts for reconciliation by arbiters chosen from the families of each of the spouses, the petitioner's apprehension that notwithstanding absence of cause and no efforts having been made to reconcile the spouses, this form of talaq is valid, is based on a misunderstanding of the law."
8. A plain reading of the above decision would display and highlight that any pronouncement of 'talaq' would not be valid, but it should strictly be in accordance with the Honourable Apex Court's decision cited supra. In this case, the Family Court, by adverting to the relevant facts, clearly observed that there was no proper attempt for reconciliation as contemplated in the Supreme Court's verdict, cited above before such alleged pronouncement of 'Talaq'.
9. A bare perusal of the records would clearly indicate and exemplify that the reconciliation was undertaken, as contemplated in the Supreme Court's decision, in this case. Hence, I could see no infirmity in the order passed by the Family Court, relating to its finding that there was no valid 'Talaq' pronounced by the husband.
10. The Family Court also, considering the oral and documentary evidence, held that the husband is liable to maintain the wife and the child.
11. Regarding the maintenance awarded to the child is concerned, there could be no doubt at all for the reason that a father is expected to maintain the child whether the child is with the mother or the father. So far the wife is concerned, the Family Court held that such alleged pronouncement of 'talaq' by the husband is not valid and in the summary proceedings under
Section 125 of Cr.P.C., the Family Court also arrived at the conclusion that she cannot be found fault with for such separation between the revision petitioner(husband) and the first respondent(wife).
12. At this juncture, I would like to call up and recollect the following decisions of the Honourable Apex Court:
(i) 2002 Supreme court cases (crl) 1448 - Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another; an excerpt from it would run thus:
"13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.
14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under
Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself.
(ii) 2005 Supreme Court Cases (cri) 276 Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus:
"22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice."
13. A bare perusal of those decisions would exemplify and demonstrate that the High Court, while exercising its revisional jurisdiction is not expected to interfere with the finding of fact arrived at by both the Courts below simply because one other view is possible or a different view could be taken. Accordingly, I could see no perversity in the finding given by the Family Court.
14. Regarding the quantum is concerned, the learned counsel for the revision petitioner would submit that the revision petitioner is a mere auto driver and hence, he cannot pay totally a sum of Rs.1500/- towards maintenance in favour of the respondents.
15. I am at a loss to understand as to how a lady and a child could live without even having a sum of Rs.1000/- and Rs.500/- per month, respectively, to keep the wolf from the door, to keep the pot boiling and to make both ends meet. Hence, I am of the considered opinion that no interference with the order passed by the Family Court is required.
16. The learned counsel for the revision petitioner would submit that even now the husband is willing to take back the wife. If that be so, it is open for the revision petitioner to take appropriate steps before the appropriate forum.
17. The learned counsel for the respondents would submit that the revision petitioner has already married for the second time.
18. At present, this Court could only observe that it is open for the revision petitioner to resort to appropriate procedures for seeking remedy in the way known to law.
19. In the result, I could see no merit in the revision and accordingly, the criminal revision case is dismissed. Consequently, connected miscellaneous petition is dismissed.