1994 JTR(All) 582
1995 2 Crimes(HC) 715
IN THE HIGH COURT OF ALLAHABAD
C. A. Rahim
MASBULLAH - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Cr1. Appeal 1390 Of 1994
Decided On : 09/09/1994
The fact of divorce must be proved, and the claim for maintenance under Section 125, Cr. P. C. is maintainable until the divorce is proven.
Act Referred :CRIMINAL PROCEDURE CODE : S.125
(A) The central legal question pertains to the maintainability of a petition for maintenance under Section 125 of the Criminal Procedure Code in the context of a claim of divorce. The court examined whether a husband's assertion of divorce, coupled with the wife's claim for Mehar (dower), is sufficient to bar a claim for maintenance under Section 125 Cr.P.C. or if such a claim should instead be governed by the Muslim Women (Protection of Rights of Divorce) Act, 1986. The court analyzed the statutory nature of maintenance and the evidentiary burden required to prove the termination of a marriage by divorce to determine if the proceedings under the Criminal Procedure Code should be dismissed or remanded for evidence.
(B) The core legal principle established is that the fact of divorce is not an admitted fact merely because a husband claims it; it must be proved by evidence. Furthermore, a wife's claim for prompt dower (Mehar) does not presuppose that a divorce has occurred, as prompt dower can be demanded during the subsistence of the marriage.
Facts of the case:
A wife filed a petition for maintenance under Section 125 of the Criminal Procedure Code. The husband contended that the petition was not maintainable because the parties had divorced, and therefore the wife should seek relief under the Muslim Women (Protection of Rights of Divorce) Act, 1986. The Magistrate initially held the case was not maintainable due to the divorce. However, the Sessions Judge remanded the matter, ruling that the husband must prove the divorce. The husband challenged this remand, arguing that the wife's claim for Mehar in her complaint implied that a divorce had already taken place.
Findings of Court:
The court found that the claim for Mehar does not prove divorce because prompt dower can be demanded at any time during the marriage, whereas deferred dower is paid upon termination. The court observed that the wife had not admitted to the divorce during the proceedings. Consequently, the husband's plea of divorce is a contested fact that requires evidentiary proof.
Issues:
1. Whether the claim for Mehar by a wife in a maintenance petition implies the fact of divorce.
2. Whether the plea of divorce taken by the husband is an admitted fact or requires proof by evidence to determine the maintainability of a claim under Section 125 Cr.P.C.
Ratio Decidendi:
Divorce is not an admitted fact unless acknowledged by both parties or proven by evidence. Since the demand for prompt dower is legally permissible during the marriage, such a demand cannot be used as an admission of divorce. The burden of proving the divorce lies with the party asserting it.
Result:
The revision petition was dismissed, upholding the Sessions Judge's order to prove the fact of divorce through evidence.
(A) The central legal question pertains to the maintainability of a petition for maintenance under Section 125 of the Criminal Procedure Code in the context of a claim of divorce. The court examined whether a husband's assertion of divorce, coupled with the wife's claim for Mehar (dower), is sufficient to bar a claim for maintenance under Section 125 Cr.P.C. or if such a claim should instead be governed by the Muslim Women (Protection of Rights of Divorce) Act, 1986. The court analyzed the statutory nature of maintenance and the evidentiary burden required to prove the termination of a marriage by divorce to determine if the proceedings under the Criminal Procedure Code should be dismissed or remanded for evidence.
(B) The core legal principle established is that the fact of divorce is not an admitted fact merely because a husband claims it; it must be proved by evidence. Furthermore, a wife's claim for prompt dower (Mehar) does not presuppose that a divorce has occurred, as prompt dower can be demanded during the subsistence of the marriage.
Facts of the case:
A wife filed a petition for maintenance under Section 125 of the Criminal Procedure Code. The husband contended that the petition was not maintainable because the parties had divorced, and therefore the wife should seek relief under the Muslim Women (Protection of Rights of Divorce) Act, 1986. The Magistrate initially held the case was not maintainable due to the divorce. However, the Sessions Judge remanded the matter, ruling that the husband must prove the divorce. The husband challenged this remand, arguing that the wife's claim for Mehar in her complaint implied that a divorce had already taken place.
Findings of Court:
The court found that the claim for Mehar does not prove divorce because prompt dower can be demanded at any time during the marriage, whereas deferred dower is paid upon termination. The court observed that the wife had not admitted to the divorce during the proceedings. Consequently, the husband's plea of divorce is a contested fact that requires evidentiary proof.
Issues:
1. Whether the claim for Mehar by a wife in a maintenance petition implies the fact of divorce.
2. Whether the plea of divorce taken by the husband is an admitted fact or requires proof by evidence to determine the maintainability of a claim under Section 125 Cr.P.C.
Ratio Decidendi:
Divorce is not an admitted fact unless acknowledged by both parties or proven by evidence. Since the demand for prompt dower is legally permissible during the marriage, such a demand cannot be used as an admission of divorce. The burden of proving the divorce lies with the party asserting it.
Result:
The revision petition was dismissed, upholding the Sessions Judge's order to prove the fact of divorce through evidence.
C. A. RAHIM, J.
( 1 ) IN this revision judgment and order dated 4. 7. 1994 passed by the learned Vth Additional Sessions Judge, Before in Criminal Revision No. 86 of 1990 has been challenged.
( 2 ) LEARNED Counsel has submitted that even if the revisionist divorced the opposite party No. 2 his wife, learned Sessions Judge held that seeking maintenance under Section 125, Cr. P. C. was maintainable. He has submitted that the said plea of divorce was taken by the revisionist at the initial stage before the learned Magistrate, who held that the case was not maintainable under Section 125, Cr. P. C. since the complainant is a divorced lady and she is entitled to get relief only under Sections 3 and 4 of Muslim Women (Protection of Rights of Divorce) Act, 1986. He has submitted that the view taken by the learned Sessions Judge that the fact of divorce will have to be proved by the revisionist and sent the matter on remand is not based on proper appreciation of the facts and points of law involved in this case. He has submitted further that the divorce being an admitted fact need not be proved. He has referred petition-complaint of the respondent filed before the learned Magistrate in this respect. In Para 15 of the complaint the opposite party NO. 2 claimed Mehar of Rs. l0001/- which was not paid to her even after the demand. So according to the learned Advocate when she claimed Mehar it is understood that the divorce was effected prior to the filing of the petition of complaint. I do not agree with the view of the learned Advocate. Any amount of Mehar can be fixed at the time of manage and it is due at any point of time and it terminates either on death or on divorce. If there is no fixation of amount what part of Mehar is promptt and what part of it is deferredt the jurists have unanimously gave opinion that 50% of it should be considered as prompt and 50% of it as deferred dower. With regard to the demand of prompt dower it is settled law, that it can be demanded even on the date of marriage and the wife can refuse consummation of marriage for non-payment of dower if demanded. Deferred dower is to be paid on the termination of the marriage by divorce or from the shares of the husband as a first charge on his death. So the wife is entitled to claim prompt dower at any point of time before termination of the marriage. So the claim for dower in the petition-complaint does not pre-suppose the fact of divorce. In Para 2 of the affidavit the revisionist has admitted that opposite party No. 2 claimed maintenance and Mehar.
( 3 ) IN paragraph 3 of the affidavit he has mentioned that the parties Thave taken divorce between them and Mehar has been paid. That fact is contradictory to the claim of the opposite party No. 2 in petition of complaint claiming maintenance under Section 125, Cr. P. C. I do not find that the opposite party No. 2 has admitted the fact of divorce anywhere during the proceedings. So I am in agreement with the view taken by the learned Sessions Judge that the plea of divorce taken by the revisionist should be proved by him after adducing evidence in this respect. Since there is no merit in the revision the same is dismissed. Petition dismissed.
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