GHANCHI UMAR MOHMAD Vs. HALUBEN ALIAS JIVU ABRAHAM
LAWS(GJH)-1983-7-18
HIGH COURT OF GUJARAT
Decided on July 29,1983

GANCHI UMAR MOHMAD Appellant
VERSUS
HALUBEN @ JIVU ABRAHAM Respondents

JUDGEMENT

S.L.TALATI - (1.) This petition is directed against the order passed by the Additional Sessions Judge Junagadh in Criminal Revision Application No. 74 of 1980 on 16-6-1981. The facts which gave rise to this Criminal Revision Application may he briefly stated as under.
(2.) Opponent no. 1 Haluben alias Jivu Abraham residing at Dhoraji had filed Miscellaneous Criminal Application No. 85 of 1975 in the Court of Judicial Magistrate First Class Junagadh in September 1975 for obtaining maintenance for herself and her daughter against the present petitioner under sec. 125 of the Criminal Procedure Code. Now the learned Judicial Magistrate First Class Junagadh did not grant maintenance to opponent no. 1-wife and her petition was dismissed. However the maintenance was granted to the daughter and the amount fixed was Rs. 60.00 per month. Both the parties were not satisfied with judgment rendered by the J. M. F. C. and opponent no. 1 wife of the petitioner filed Criminal Revision Application No. 19 of 1977 in the Sessions Court at Junagadh. The applicant-husband also filed Criminal Revision Application No. 26 of 1977 in the Sessions Court at Junagadh. Both the petitions came to he dismissed on 7-9-1978. The result was that the decision rendered by the learned Magistrate in Misc. Criminal Application No. 85 of 1975 became final between the parties as the parties did not thereafter choose to carry the litigation to the High Court. Here it is required to be stated that the learned Magistrate was guided by the fact that opponent no. 1-wife of the petitioner was a Mohmadan lady and she had received Iddat and Mehar amounts she was not entitled to maintenance. Now what happened thereafter was that the Supreme Court in the case of TAHIRAS V. ALI HUSSAIN FISSALLI CHOTHIA AND ANOTHER REPORTED IN A. I. R. 1979 SUPREME COURT AT PAGE 362 held as under: No husband can claim under sec. 127(3)(b) absolution from his obligation under sec. 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance. The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute. The purpose of the payment under any customary or personal law must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain hereself. The whole scheme of sec. 127(3)(b) is manifestly to recognise the substitute maintenance arrangement by lump sum payment organised by the custom of the community or the personal law of the parties. There must be a rational relation between the sum so paid and its potential provision for maintenance to interpret otherwise is to stultify the project.
(3.) In this particular case it appears that the wife in her deposition in the first petition which she had filed admitted that she was given ornaments as per the custom of the community at the time of marriage. Nowhere it is stated as to what those ornaments were or what was their value. She further admitted that at the time of the marriage Mehar amount was paid to her and that amount was Rs. 450.00. Now that was given at the time of the marriage. Thereafter when there was divorce for the period of Iddat an amount of Rs. 125.00 was sent which was accepted. It is nobodys case that Rs. 450.00 which were given at the time of marriage were not spent by her during the period while she remained married and gave birth to a daughter. The value of the ornaments is not known and there is no evidence on .record and it was nobodys case that the value of the ornaments was so big and sufficient that that amount could be sufficient for future maintenance. Now thereafter the maintenance amount for a period of Iddat was calculated at the rate of Rs. 30.00 per month and ad hoc amount of Rs. 125.00 was sent for that period. Thereafter nothing was paid. This was the state of affairs and the whole case was not based on the allegation that the amount which was paid at the time of marriage being Rs. 450.00plus ornaments was sufficient for future maintenance or that the amount of Rs. 125.00paid for Iddat was sufficient for her maintenance for all time to come. But the whole case was that once Mehar and Iddat amounts were paid according to the personal law of the parties the petition by a Mohmadan lady was not maintainable. That plea was accepted and therefore the wife-opponent no. 2 herein could not get maintenance either in the Court of Judicial Magistrate First Class Junagadh or in the Sessions Court at Junagadh and her petition came to be dismissed as well as her revision application. Thereafter the Supreme Court came to the conclusion as stated by me in the above judgment.;


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