"....11. It is well-settled that the husband has the duty to prove his own income and in view of provisions of Section 106 of the Evidence Act, the burden of proof is on the husband as it is within his special knowledge regarding his income. ...."
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CASE FROM INDIANKANOON SITE
Calcutta High Court
Mosammat Mamuda Bibi vs Sk. Maniruddin @ Monirul And Anr. on 23 March, 2005
Equivalent citations: 2005 (3) CHN 62
Author: P Sinha
Bench: P Sinha
P.N. Sinha, J.
1. As the factual matrix and principles of law involved in these two revisional applications are identical I intend to dispose of both the revisional applications by this common judgment and order.
2. Mosammat Mamuda Bibi as petitioner filed CRR No. 1594/04 in this Court assailing the judgment and order dated 21.4.04 passed by the learned Judicial Magistrate, 3rd Court, Diamond Harbour in Misc. Case No. 197/97 thereby allowing maintenance @ Rs. 1500/- per month for herself and @ Rs. 1000/- per month for her minor son totalling Rs. 2500/- per month as maintenance with effect from the date of the order. During the course of hearing in this Court it transpired that, challenging the same order the husband Sk. Maniruddin has preferred a criminal revision before the learned Sessions Judge, South 24-Parganas at Alipore which was registered in that Court as Criminal Motion No. 330 of 2004. This Court under its supervisory power and to avoid conflicting decisions called for the records of the said criminal motion from the Court of the learned Sessions Judge, South 24-Parganas, and after receipt of the record of Criminal Motion No. 330 of 2004 it has been registered in this Court as CRR No. 647/05.
3. The facts of the case as it appears from the application under Section 125 of Cr. PC filed by Mamuda Bibi is that she is the legally married wife of Sk. Maniruddin (petitioner of CRR 647/05 and O.P. of CRR 1594/04). The marriage was solemnised on 126.96.36.199 according to their Muslim Sariyat and Customs and after marriage the wife went to husband's house and lived together as husband and wife. In the marriage 'Den Mohor' was fixed at Rs. 20,000/-. Since marriage the wife was subjected to torture by the husband for more dowry. They were blessed with a son who was about 10 years in age when the application was filed. Finally on 16.4.94 the wife was driven out from her matrimonial home by the husband after severe assault. She filed one application for maintenance on 6.1.95 but, after appearance of the husband the said case was withdrawn on the assurance of the husband that he would pay maintenance to her and to her son. But the husband did not pay any maintenance either to her or to her minor son. Finding no other alternative, the wife Mamuda Bibi instituted the present application under Section 125 of Cr. PC and after end of the trial the learned Magistrate allowed her prayer in part and passed maintenance order in favour of wife @ Rs. 1500/- per month and in favour of the minor son @ Rs. 1000/- per month. Initially in her application the wife claimed maintenance @ Rs. 1500/- and 1000/- per month respectively for herself and for her minor son. Subsequently, by filing a petition for amendment she claimed maintenance @ Rs. 10,000/- each for herself and for her minor son.
4. It appears that the wife has preferred the instant revisional application for enhancement of inadequate amount of maintenance granted by the learned Magistrate. On the contrary, the husband has preferred the criminal revision challenging illegality of the order passed by the learned Magistrate so far as it relates to granting of maintenance to the wife.
5. Mr. Abdulla Rahamani, learned Advocate for the wife submitted that the learned Magistrate acted illegally by observing in the body of the judgment that the wife was a woman who has been divorced and also illegally framed a point as to whether a 'talaqi woman' is entitled to claim maintenance. He submitted that there was no averment in the written objection that the husband Sk. Maniruddin gave her divorce or 'talaq'. In the evidence it did not transpire at all that the husband gave her divorce. The husband earns more than Rs. 2,00,000/- per month by running a Nursing Home. The husband is a quack doctor and has sufficient means of income from his profession. The husband did not produce any paper or document or did not adduce any cogent oral evidence to establish his income. It is the duty of the husband to prove his own income as it is within special knowledge of the husband regarding his income and burden of proof is on the husband to prove his income.
6. He further submitted that the husband in the written objection introduced the story that the wife was married previously. But in evidence the husband did not lead any evidence to prove previous marriage of the wife with another man namely Abdul Hai Molla. The learned Magistrate did not consider that by amendment the wife claimed enhanced maintenance and prayed for maintenance @ Rs. 10,000/- each per month for herself and for her minor son. The learned Magistrate did not- at all consider the income of the husband and maintenance amount granted by the learned Magistrate was not only inadequate, but it was shockingly below. The learned Magistrate also made illegality by making the maintenance order effective from date of order whereas, the trend of decisions is that, the maintenance order should be from date of application. In support of his contention he cited the decisions in Sk. Safique v. Papia Bibi, reported in 2001 C Cr LR (Cal) 64, Nirendra Nath Dey and Anr. v. State of West Bengal, reported in 1997 C Cr LR (Cal) 14, Rousseau Mitra v. Chandana Mitra, reported in 2003 CWN 1136, Ali Hossain v. Baby Farida Khatoon, reported in 1998 Cri. L. J. 2762, Chandana Guha Roy v. Goutam Guha Roy, reported in 2004(1) CLJ (Cal) 1, Sudipta Mukherjee v. Dibyendu Mukherjee, reported in 1998 CWN 38, Sankar Prosad Ghosh v. Lakshmi Rani Ghosh, reported in 1998 C Cr LR (Cal) 101, Jolly Paul v. Ram Chandra Paul, reported in 2000 C Cr LR (Cal) 146, Amina .v. Hassn Koya, reported in JT 2003(4) SC 363 and Ashoka Dutta Gupta and Anr. v. Sujit Dutta Gupta and Anr., reported in 2000 C Cr LR (SC) 459.
7. Mr. Debasish Roy, learned Advocate for the husband and petitioner of CRR No. 647/05 submitted that marriage between the parties and birth of child out of the wedlock is admitted. The learned Magistrate granted interim maintenance @ Rs. 900/- in all and challenging that order the wife filed CRR No. 801/01 and this Court enhanced interim maintenance for the wife @ Rs. 900/ - per month and for the child @ Rs. 600/- per month and the husband is paying that amount. The evidence of the wife as P.W. 1 in the Court below particularly in cross-examination, reveals that her previous husband was Abdul Hai Molla and she did not keep any touch with her previous husband. She did not enquire whether her previous husband Abdul Hai Molla is alive or dead. Evidence of OPW 2 Julfikar Laskar reveals that he knows Abdul Hai Molla of village Moruiberia under P.S. Diamond Harbour and Abdul Hai Molla is a mohorar of BL & LRO office at Magrahat. There was no cross-examination of OPW 2 on the part of the wife. It establishes that the previous husband of Mamuda Bibi namely Abdul Hai Molla is alive. There was no evidence before the learned Magistrate that there was divorce between Mamuda Bibi and Abdul Hai Molla. The first marriage of Mamuda Bibi with Abdul Hai Molla is still existing and that marriage tie was not severed by pronouncement of talaq or decree of divorce. The subsequent marriage of Mamuda Bibi with Maniruddin Sk. is the second marriage of Mamuda Bibi and Muslim Law does not permit second marriage of Muslim woman. A Muslim man may have as many as four wives but, it is not lawful for a Mahommedan woman to have more than one husband at same time. Therefore, Mamuda is not the legally married wife of Sk. Maniruddin. That being the legal position, Mamuda Bibi cannot claim any maintenance from Sk. Maniruddin. Order of learned Magistrate granting maintenance to the wife Mamuda Bibi being illegal should be set aside.
8. Mr. Roy further submitted that Mamuda Bibi herself is a quack doctor, and she earns sufficiently otherwise she could not have spent huge amount as expenses for the education of her son who is reading in a school where monthly tuition fee is Rs. 1175/-. It shows that she has her own income. She is an accused in a case under Section 313 of Indian Penal Code. The order of the learned Magistrate granting maintenance to the wife should be cancelled. The husband has nothing to say so far as it relates to the order of maintenance for the minor son.
9. After considering the submissions made by the learned Advocates of the parties and going through the pleadings of the parties as well as the contents of revisional applications and materials on record, I find that the marriage between Mamuda Bibi and Sk. Moniruddin is admitted, and it is also admitted that out of their wedlock one son namely, Mijanur Rahaman @ Sk. Mijanur was born to them, who is now a student of Class VI at Sishu Bikas Academy at Chakraberia Mokrampur More. The marriage between the said couple was registered also as it transpires from evidence of P.W. 1 Mamuda Bibi. Wife's case is that she was driven out of matrimonial home on 16.4.94 after assault and during her stay in matrimonial home she was subjected to torture both physically and mentally for further dowry. It appears from the evidence of the parties that the wife has also filed a case against the husband for torturing her. As the husband did not pay any money or maintenance she filed an application under Section 125 of Cr. PC in which there was order of interim maintenance @ Rs. 900 /- per month in all which was subsequently enhanced to Rs. 1500/- per month by this Court in CRR No. 801/01. Thereafter, the learned Magistrate by the impugned order dated 21.4.04 disposed of the application under Section 125 of Cr.PC and granted maintenance of Rs. 2500/- in all to the wife and her minor son, and the said order is under challenge by both the parties in these revisional applications.
10. Before entering into merits of the revisional applications I clearly observe that the learned Magistrate acted illegally by mentioning in the judgment that the wife is a 'talaqi woman' and also framing a point for decision whether a talaqi woman is entitled to claim maintenance and if so, what would be the quantum. There was no pleading either by the wife herself, or by the husband in his written objection that there was divorce or talaq between Mamuda Bibi and Sk. Maniruddin. The remarks of the learned Magistrate that Mamuda Bibi is a 'talaqi woman' is therefore, bad in law and the said remark being extraneous and not pleaded or canvassed by either of parties in evidence and argument is hereby expunged. There was no evidence that Sk. Maniruddin gave her talaq or that there was any decree of divorce from a competent Civil Court severing the marital tie between Mamuda Bibi and Sk. Maniruddin. It is crystal clear that the learned Magistrate failed to understand the nature of the case of the parties, as it was the specific case of the husband that, Mamuda Bibi was previously married with one Abdul Hai Molla and, there was no divorce between Abdul Hai Molla and Mamuda Bibi, and being so, Mamuda Bibi is not the legally married wife of Sk. Maniruddin. I would enter into discussion regarding this point later on but, I make it clear that the observation of the learned Magistrate that Mamuda Bibi was a 'talaqi woman' was unfortunate and the said remark shows non-application of mind by the learned Magistrate.
11. It is well-settled that the husband has the duty to prove his own income and in view of provisions of Section 106 of the Evidence Act, the burden of proof is on the husband as it is within his special knowledge regarding his income. The wife's case was that the husband runs a Nursing Home under the name and style 'Orient Nursing Home' and that the husband is the quack doctor and very popular doctor in that area and earns more than Rs. 2 lakhs per month. On the other hand, the husband took the plea that he is a confirmed unemployed person and works sometimes in a Nursing Home and earns hardly Rs. 1000/- to Rs. 1500/- per month. The wife could not produce relevant papers and documents before the Trial Court to prove the exact or probable income of the husband, but at the same time the husband also did not produce any paper and document to show his actual or probable income per month or annually. On a consideration of evidence of both parties and considering that this quasi civil proceeding, the preponderance of probabilities would be in favour of the evidence of the wife. Moreover, the decisions of this Court reported in Chandana Guha Roy (supra) and in Sushil Mondal v. Shibdas Patra, reported in 2005(1) C Cr. LR (Cal) 150, established that the burden of proof was on the husband to disclose his income as it was within his special knowledge in view of provisions of Section 106 of the Evidence Act. Considering the evidence of the parties I am of opinion that, the husband Sk. Maniruddin is a solvent person, rather a rich person, and his monthly income is not less than Rs. 40,000/- per month otherwise, he could not have constructed a three-storied building to run a Nursing Home. The neglect of the husband to maintain his wife and children was already established when the wife had to take shelter of the Court to claim maintenance and the Court allowed interim maintenance in favour of the wife and her minor son and there was no evidence to prove that during her stay in father's house, the husband sent her money or maintenance.
12. The next crucial and pertinent point is whether the wife Mamuda Bibi is entitled to claim maintenance for herself as the husband has denied her legal right to claim maintenance from him disclosing that she is not his legally married wife, which is one of the essential conditions of claiming maintenance under Section 125 of Cr. PC. The husband has admitted before this Court that he is agreeable to pay maintenance to his son born out of Mamuda Bibi namely Sk. Mijanur. In this connection, I intend to refer Mulla's Principles of Mahommedan Law particularly Sections 255 and 256. Section 255 prescribes that a Mahommedan may have as many as four wives at the same time but not more. Section 256 of Mahommedan Law prescribes that it is not lawful for a Mahommedan woman to have more than one husband at the same time. A marriage with a woman, who is her husband alive and who has not been divorced by him is void. From evidence of Mamuda Bibi as P.W. 1 it transpires that Abdul Hai Molla was her first husband and she has a son who is now major, born out of wedlock with Abdul Hai Molla. She in her evidence stated that she did not keep any news of her previous husband and she has no connection with Abdul Hai Molla. She also stated that she does not know whether Abdul Hai Molla is dead or alive. Evidence of P.W. 2 Kuddus Sk. also reveals that Mamuda Bibi has a son by another man whose name he does not know. Sk. Maniruddin as OPW 1 stated that Abdul Hai Molla is the first husband of Mamuda Bibi and Abdul Hai Molla is a mohorar of BL & LRO Office at Magrahat. OPW 2 Julfikar Laskar in his evidence stated that he knows Abdul Hai Molla of village Moruiberia who is a mohorar at BL & LRO Office at Magrahat. There was no cross-examination of OPW 2 at all by the wife and cross-examination of OPW 1 by Mamuda Bibi regarding Abdul Hai Molla was also not proper on this fact. The evidence that was led in the Trial Court clearly proves that Mamuda Bibi was previously married with Abdul Hai Molla of village Moruiberia and Abdul Hai Molla is still alive. There was no pleading and evidence by the wife or by the husband Sk. Maniruddin that there was talaq given by Abdul Hai Molla to Mamuda Bibi, or that there was divorce from a competent Civil Court severing the marital tie between Mamuda Bibi and Abdul Hai Molla. It has been proved that when Mamuda Bibi married Sk. Maniruddin she had her previous husband Abdul Hai Molla alive with whom there was no divorce or talaq. In view of provisions of Section 256 of the Mahommedan Law, Mamuda Bibi being a Muslim lady cannot have more than one husband at same time. Her marriage with Sk. Maniruddin, when her previous husband is alive and when there was no divorce between her and Abdul Hai Molla is, therefore, void or "batil' in accordance with Mahommedan Law. Though Section 256 of Mahommedan Law established that marriage of Mamuda Bibi with Sk. Moniruddin was not valid, though the marriage was registered, neither this Court nor the Court of learned Magistrate can pass any order snapping their marital tie and severing their status of husband and wife. A competent Civil Court can only pass decree declaring the marriage between them as irregular (fasid) or void (batil). They may continue to remain as husband wife without approaching the Court for such declaration or the husband not giving her talaq in accordance with the rules or ordains of the Holy Quoran. Even if there is no talaq in accordance with law or decree of divorce from competent Civil Court, still it will operate as a bar for the wife Mamuda Bibi to claim maintenance under Section 125 of Cr. PC from Sk. Maniruddin as her marriage was not valid under provisions of Mahommedan Law. Such a marriage does not confer her right to claim maintenance from Sk. Maniruddin under Section 125 of Cr. PC.
13. One interesting question may arise as to whether in view of provisions of Section 255 of Mahommedan Law, marriage of Mamuda Bibi with Maniruddin became valid as a Mahommedan may have as many as four wives, and conferred on her right to claim maintenance under Section 125 of Cr. PC. It is true that a Muslim male who has attained marriageable age can marry as many as four wives but, that would not validate the marriage of Sk. Maniruddin and Mamuda Bibi to give her status of legally married wife to claim maintenance. Marriage with Mahommedan woman by a Mahommedan would clearly indicate that the woman must be either spinster, or if married earlier, has obtained talaq or divorce from her previous husband. In the instant case Mamuda Bibi did not obtain talaq from her previous husband Abdul Hai Molla, and there was also no divorce between her and Abdul Hai Molla by decree of competent Court. Not only that in view of provisions of Section 273 of the Mahommedan Law, Mamuda Bibi did not exercise her option of repudiating the marriage with Abdul Hai Molla after attaining puberty or age of 15 years and before completing age of 18 years. Rather evidence reveals that she stayed with Abdul Hai Molla as husband and wife and out of that wedlock a son was also born to them. Section 125 of Cr. PC does not make any distinction between a Hindu wife and a Muslim wife so far as it relates to claim of maintenance by second wife. In the present case Mamuda Bibi, being the second wife of Sk. Maniruddin, and the marriage was against principles of Mahommedan Law, cannot claim maintenance from her present husband. The learned Magistrate did not consider this aspect that provisions of Section 256 of Mahommedan Law is a clear bar for Mamuda Bibi to claim maintenance from Sk. Maniruddin under Section 125 of Cr. PC. The order of the learned Magistrate granting maintenance to Mamuda Bibi for herself being illegal and improper is set aside.
14. The decisions cited by the learned Advocate for the petitioner of CRR No. 1594/04 requires no discussion as the principles laid down in the said decisions are well-settled. The said decisions are not applicable in the facts and circumstances of the present case and particularly in view of provisions of Section 256 of Mahommedan Law, when there was no divorce between Mamuda Bibi and her first husband Abdul Hai Molla. Even the decision of Amina v. Hassn Koya (supra) is not properly applicable in this case as in the reported case of Hassn Koya there was no previous marriage of the said wife who was pregnant at the time of marriage, whereas in the present case Mamuda Bibi, the wife of Sk. Maniruddin was previously married with Abdul Hai Molla and there was no divorce or talaq between her and Abdul Hai Molla.
15. Mamuda Bibi is entitled to claim maintenance for her minor son Sk. Mijanur @ Mijanur Rahaman. The said son is now a student of a school whose monthly fee is Rs. 1155/- per month excluding costs of hostel charge. Besides that, the said child has to maintain his dresses for the school as well as clothing for his daily need, books, costs of daily required articles, tuition fee etc. Considering all these aspects and considering income of the husband and increase of price of all essential commodities, I am of opinion that the maintenance amount granted by the learned Magistrate for the minor son of Mamuda Bibi was inadequate. It is a fit case where this Court should interfere into the order of learned Magistrate so far as it relates to quantum of maintenance to the minor son, and in my opinion, the husband Sk. Maniruddin should pay maintenance to his son @ Rs. 4000/- per month and this order would become effective from the date of the application for enhancement or amendment of maintenance amount filed by the wife Mamuda Bibi. The entire payment made by Sk. Maniruddin in terms of interim maintenance order passed by this Court in CRR No. 801/01 and also in terms of order of the learned Sessions Judge, South 24-Parganas at Alipore at the time of admitting Criminal Motion No. 330/04 shall be adjusted against the arrear maintenance amount that has to be paid by the husband to his son. The husband Sk. Maniruddin shall pay the maintenance amount to his son at the aforesaid rate till change of circumstances within 7th of the each succeeding month according to English calendar.
16. In view of the discussions made above the revisional applications being CRR No. 1594/04 and CRR No. 647/05 are allowed in part and dispose of accordingly in the light of the observations made above.
17. This order will govern both the revisional applications bearing CRR No. 1594/04 and CRR No. 647/05.
18. Send a copy of this order to the learned Sessions Judge, South 24-Parganas at Alipore for information regarding noting of disposal of Criminal Motion No. 330/04 of his Court which has been registered as CRR No. 647/05 in this Court, if not already noted in his register, and also a copy of order to the learned Judicial Magistrate, 3rd Court, Diamond Harbour for information and necessary action.
19. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.