The Allahabad High Court while allowing the petition said that merely saying in a written statement that the husband pronounced triple talaq on such and such date, could not have been taken at its face value and that the husband had a burden to prove the same.
A Single Bench of Justice Jyotsna Sharma passed this order while hearing a petition filed by Smt Zahida Anjum.
By means of the criminal misc writ petition under Article 226 of the Constitution of India, the petitioner- Smt Zahida Anjum has prayed for issuance of writ of certiorari to quash the order dated 06.05.2005 passed by the Additional District & Sessions Judge in Criminal Revision and also seeking issuance of mandamus commanding respondent no 2 to pay maintenance amount of Rs 5000/- per month to the petitioner from the date of application under Section 125 CrPC.
Relevant facts giving rise to the petition are as below:-
The petitioner moved an application seeking maintenance from her husband-respondent no 2, Atiqur Rahman before the Magistrate concerned in 2001. The trial court passed an order on 30.06.2004 and awarded Rs 1500/- per month in her favour as maintenance, payable from the date of the order.
Challenging above order the petitioner as well as respondent no 2 preferred separate criminal revisions, Criminal Revision seeking enhancement of maintenance amount by the petitioner and Criminal Revision filed by her husband seeking to set aside the maintenance order. The revisional court dismissed revision filed by the petitioner and allowed the revision of respondent no 2 quashing the maintenance order by passing a common order dated 06.05.2005.
Counsel for the petitioner submitted that the petitioner was never divorced and a false plea of divorce was taken by her husband in written statement for the purpose of stalling the grant of maintenance. Respondent no 2, to stress his plea of divorce could only file photocopy of talaqnama that too at a very late stage of the trial, hence the plea of divorce was quite doubtful; the trial court took correct view that the petitioner was entitled for maintenance; the petitioner was never paid any amount of dower nor any other amount to maintain her during “iddat” period; the revisional court wrongly set-aside the order of Magistrate on the basis of assumptions and conjunctures; the view taken by revisional court was not supported by the evidence on record.
On the other hand, respondent no 2 has averred that he divorced his wife by pronouncing talaq three times (triple talaq) in a Panchayat held on 20.04.2004; the Panchayat was attended by father and relatives of his wife; the plea of triple talaq was categorically mentioned in his written statement filed before the trial court; no replication/additional reply to counter the above averment was ever given by his wife; he paid amount of dower and maintenance for “iddat” period; that because she is a divorcee, therefore, she is not entitled for any relief under the provisions of section- 125 Cr.P.C; section- 3 of Muslim Women (Protection of Rights on Marriage) Act, 2019 shall apply in such circumstances.
The Court noted that,
First and foremost objection has been raised by the A.G.A and counsel for the respondent no 2 that a judicial order is not amenable to the original writ jurisdiction of the High Court under Article 226 of the Constitution of India. It is pointed out by the State that in the case the prayer is to quash the order dated 06.05.2005 passed in a revision.
Thus, it has been clearly laid down that order of civil court could be challenged under Article 227 of the Constitution of India and not under original writ jurisdiction under Article 226 of the Constitution of India.
At the same time, it is conceded that a writ petition under Article 227 of the Constitution of India may be maintainable against such an order and that there is no legal bar in converting the writ petition filed under Article 226 of the Constitution of India to one under Article 227 of the Constitution of India in the peculiarity of the circumstances to serve interest of justice.
The Court glanced over the facts and circumstances of this case. The most important facts which draw the Court attention are; the petitioner Zahida filed an application under section- 125 CrPC with a prayer to grant maintenance in the year 2001, the same was decided in the year 2004; the opposite party no 2 (her husband) filed a revision in 2004 which came to be decided on 06.05.2005; the wife (present petitioner) challenged that order on 14.07.2005 and the matter is pending before the Court since then i.e last 17 years.
All this while, this legal point was neither raised nor realized that this writ petition seeks to invoke powers under Article 226 instead of Article 227 Constitution of India.
This is settled law that non-mentioning or wrong mentioning of provisions of law should not come in the path of granting appropriate relief, if the litigant otherwise is entitled for the same, the Court said.
The Court observed that,
In my view, an ordinary litigant cannot be expected of having too minute knowledge of provisions of law. This question has always been troubling my judicial conscience about what a common man or ordinary litigant has to do with the provision of law under which he may be entitled for relief. This should be the concern of the Court of law or Court of justice or his counsel/ advocate. Where no other deterrent except non mentioning or wrong mentioning of law poses a hurdle in the winding path to justice, the judge ought to play its expected role. The Judge or the Court shall be failing in its duty towards an ordinary man/litigant by not looking for solutions and dismissing the writ on technical ground. In this view of the matter, I find it fit to treat this petition as one moved under Article 227 of the Constitution of India.
I perused the judgement of the revisional court; the revisional court decided two revisions; one filed by the wife and the other filed by the husband. Even a casual glance on the judgement given by the revisional court gives a clear indication that revisional court re-evaluated and re-assessed the evidence given by the parties in the proceeding under section- 125 Cr.P.C and gave a clear finding that the husband had divorced his wife by pronouncing “Talaq” three times, therefore the wife shall not be entitled for any maintenance under the provisions of section- 125 Cr.P.C and that from that moment, the provisions of section-3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 shall come into play. After evaluating evidence afresh, the revisional court set-aside the judgement of the trial court and allowed the revision filed by husband and dismissed the revision filed by the wife.
The Court further observed that,
In my view, on both the issues, the findings given by the revisional court were against the law of precedents and against settled principles of law. The judgement was pronounced by the revisional court in 2005, therefore it was imperative upon the revisional court to follow the judgement given by Apex Court in Shamim Ara (supra) in 2002. It may also be noted that in Danial Latifi and Another vs. Union of India, 2001 AIR SCW 3932, the Constitution Bench had held by then that even a divorced Muslim woman would be entitled to claim maintenance from her former husband as long as she does not re-marry. The Constitution Bench observed that being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim woman. That judgement was followed in many of the subsequent cases and the law still holds good. The revisional court instead pronounced the judgment as regard plea of divorce in disregard of law laid down by Apex Court. The laws pronounced by Apex Court are binding under Article 142 of the Constitution of India on all judicial authorities. The impugned judgement is therefore not sustainable in law and is liable to be set-aside.
The next question which remains to be seen in the writ petition is what shall be the effect of the judgement of the Supreme Court in Shayara Bano vs Union of India (supra) on the issues involved in the case. It may be recalled that in the above noted case, the Supreme Court set-aside the practice of “talaaq-e-biddat” i.e triple talaq, by majority of 3:2.
“In Shayara Bano vs. Union of India (supra), the Supreme Court took a view that such a practice of triple talaq, though largely prevalent in certain sects of the Muslim community, was never legal or supported by Sharia.
Hence, in the matters, where the issue of rights of the parties are yet to be adjudicated, the law pronounced by the Supreme Court shall be applicable. In this case, the issues involved herein cannot be treated as already adjudicated, hence the law laid down by the Supreme Court would apply”, the Court also observed while allowing the petition.
On the basis of above discussion, the Court is of the view that the judgement dated 06.05.2005 passed by the revisional court in Criminal Revision was bad in law and is therefore liable to be set aside.
“It may be noted as a matter of precaution that the consequent upon setting-aside the judgment of the revisional court, the issue of enhancement of the maintenance amount as was claimed by the wife in Criminal Revision opens up. As the matter is probably one of the oldest, hence the concerned court is directed to decide the same as per law within a period of three months from the date of filing of certified copy of the judgment”, the order reads.