HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.R.C.No.964 of 2007 and Crl.P.No.3572 of 2009 Dated: 16-12-2009 Crl.R.C.No.964 of 2007 Smt. Raheemunnisa Begum and others .. Petitioners And Mohd Tajuddin .. Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.R.C.No.964 of 2007 and Crl.P.No.3572 of 2009 COMMON ORDER: The petitioners 1 to 3 in Crl.R.C.No.964 of 2007 are the wife, son and daughter of the respondent. They are challenging the order, dated 26-03-2007 in M.C.No.5 of 2005 on the file of the Additional Judicial Magistrate of First Class, Bhongir, seeking enhancement of maintenance amount to the first and third petitioners and claiming maintenance to the second petitioner. The respondent in Crl.R.C.No.2007 filed Crl.P.No.3572 of 2009 challenging the order, dated 24-10-2008 passed by the Principal Sessions Judge, Nalgonda whereby the order passed by the Additional Judicial Magistrate of First Class, Bhongir, dated 26-03- 2007 in M.C.No.5 of 2005, was confirmed. 3. For the sake of convenience, the parties hereinafter will be referred as they are arrayed in M.C.No.5 of 2005. 4. The brief facts of the case are as follows: The first petitioner is the wife of the respondent. The second and third petitioners are their son and daughter respectively. All the petitioners filed a petition under Section 125 of Cr.P.C. claiming maintenance of Rs.3,000/- each per month from the respondent. The marriage of the first petitioner and the respondent was performed on 25-05-1972 at Athmakur village and Mandal of the Nalgonda District. After the marriage, they resided at Hyderabad for about one year. Out of their wedlock they are blessed with six daughters and one son. Out of six daughters five are already married. It is alleged that the respondent developed illicit intimacy with a girl by name Mallika and subsequently married her in 1974. The respondent was blessed with seven daughters and five sons through his second wife. The further case of the petitioners is that the respondent started harassing the first petitioner and after the second marriage, he increased his harassment and also made an attempt to kill the first petitioner by pouring kerosene on her body. A panchayat was held and the respondent had executed an undertaking on 30-02-1974 in the said panchayat promising to maintain the first petitioner and to give half share in his property, but failed to keep up his promise. It is also their case that since the respondent did not keep up his promise, the first petitioner left Hyderabad and started living with her parents at Bhongir. 5. The further case of the petitioners is that the respondent was working as Sub-Inspector of Police and took voluntary retirement under VRS scheme. The respondent is having a) two storied building worth Rs.15 lakhs at Jahanuma, b) 500 Sq. Yards at Madhapur near Hi-tech City worth Rs.20 lakhs, c) another house plot at Pahadi Shareef, Hyderabad d) two acres of agricultural land at Duppally village of Atmakur Mandal, which is wet land and also e) one residential house in 400 Sq. Yards. It is also the case of the petitioners that they are unable to maintain themselves and that the respondent has neglected and refused to maintain them. It is also the case of the first petitioner that she was doing petty business in bangles and that she had performed the marriage of her five daughters with her own money and by raising petty amounts from her relatives. It is also their case that the first petitioner is unable to do business in bangles due to her old age. It is also their case that the second petitioner was studying intermediate and the third petitioner was studying 10th class as on the date of filing the petition and they require maintenance amount. 6. The first petitioner had filed M.C.No.24 of 1980 on the file of the Judicial First Class Magistrate, Nalgonda. After filing of the said case, the first petitioner and the respondent had compromised the matter and ultimately the said Maintenance Case was dismissed. It is also her case that she had lodged a complaint with the police, which was registered as Cr.No.54 of 2004 for the offences under Sections 498-A and 494 of IPC on 24-05-2004 against the respondent and others. The third petitioner also filed a suit in O.S.No.80 of 2004 on the file of the Senior Civil Judge, Bhongir, claiming for maintenance and lump sum amount for her marriage expenses and the same is pending. 7. The respondent filed counter and admitted his relationship with the petitioners. Though he admitted his marriage with the first petitioner, his specific case is that he had pronounced talaq (divorce) through the notice, dated 24-06-2000 issued through his Advocate. It is also his case that he got published the said notice in Siasat Urdu daily on 12-07-2000. His further case is that the divorce notice issued through the registered post with acknowledgement was returned unserved with a postal endorsement ‘unclaimed’. It is also his case that he had also deposited Rs.7,700/- towards Meher and Iddahath amount with the office of the Govt. Qazi of Qile Mohammed Nagar Bara Mahal, 9-11-38, Qazi Gally, Golconda, Hyderabad. His specific case is that since the first petitioner is a divorced woman, she is not entitled to claim maintenance. He denied the other allegations that he harassed the first petitioner and neglected to maintain the petitioners. The specific case of the respondent is that that the first petitioner is a quarrelsome lady and she never cared his parents and never looked after them well. He has also denied that the first petitioner performed the marriage of five daughters with her own money and by raising petty amounts from her relatives. It is also his case that the second petitioner is more than 19 years old and therefore, not entitled to claim maintenance. It is also his case that the third petitioner was lured by the first petitioner though he was looking after her well. 8. The first petitioner herself was examined as PW-1 and her brother by name, Md. Aleemuddin, was examined as PW-2. On behalf of the respondents, the respondent himself was examined as RW-1 and two other witnesses were examined as RWs.2 and 3 and Exs.R-1 to R-9 were marked. 9. The learned Magistrate, after appreciating the evidence on record, observed that Ex.R-7, notice, was addressed to the brother of the first petitioner and therefore, there was no valid intimation of pronouncement of Talaq. It was further held that since it is proved that there was no proper intimation of pronouncement of talaq, the first petitioner is not a divorced wife, but a deserted wife, as such she can certainly claim maintenance from the respondent. The learned magistrate further held that the second petitioner was a major as on the date of filing of the petition, as per the provision of Section 125 of Cr.P.C., a major son is not entitled to claim any maintenance from his father. The learned Magistrate finally held that the first and third petitioners are entitled to claim maintenance and accordingly, awarded maintenance of Rs.1,000/- per month to the first petitioner and Rs.500/- per month to the third petitioner. Being aggrieved by the same, the respondent preferred Crl.R.P.No.37 of 2007 on the file of the Principal Sessions Judge at Nalgonda and the learned Sessions Judge, through the orders, dated 24-10-2008, dismissed the said revision petition and confirmed the orders passed by the learned Magistrate in M.C.No.5 of 2005, by observing that the learned Magistrate has rightly drawn the conclusion that the talaq given by the respondent is invalid and therefore, the petitioner is not a divorced wife, but a deserted wife, as such she can certainly claim maintenance from the respondent and the third respondent, being the minor child, is entitled to claim maintenance from her father. The learned Sessions Judge further held that the very fact that the respondent had contacted four marriages shows his capacity and therefore he is bound to maintain the petitioners 1 and 3. 10. Being aggrieved by the said order passed by the learned Sessions Judge, the petitioners filed Crl.R.C.No.964 of 2007 before this Court seeking enhancement of maintenance to petitioners 1 and 3 and claiming maintenance to the second petitioner from the date of filing of the petition. During the pendency of the revision case, this Court through the order, dated 02-02-2009, directed the respondent to pay interim maintenance @ Rs.5,000/- each to petitioners 1 and 3 including the amount already granted by the trial court, until further orders. 11. Sri Nazeer Khan, the learned counsel for the respondent submitted that a divorced muslim woman is not entitled to claim maintenance as per Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short ‘the Act’). He further submitted that the respondent pronounced the talaq (divorce) and intimated the same to the first petitioner through Ex.R-1 notice, dated 24-06-2000 and subsequently got published the said notice in Ex.R-2 in Siyasath Urdu Daily on 12-07-2000 and sent a notice in Ex.R-7, unclaimed registered postal cover, and it was returned unclaimed. It is further submitted that in the above circumstances, it is clear that the respondent has divorced the first petitioner and therefore, she cannot claim maintenance. It is also submitted that the notice sent to the address of the first petitioner, even if returned unclaimed, should be deemed to be duly served unless proved otherwise. He has also referred to Section 27 of the General Clauses Act and relied on C.VEERAPPA v. CHIEF COMMISSIIONER, LAND ADMINISTRATION, HYDERABAD [1], in support of his contention. He has also relied on SUBODH S. SALASKAR v. JAYPRAKASH M. SHAH [2] in support of his contention that where summons issued to a party does not return within thirty days, it shall be presumed that the summons have been duly served. 12. The learned counsel for the respondent further submitted that the first petitioner herself has been living separately and she is adamant and insisted the respondent to neglect his old age parents and in the above circumstances, the respondent had married another woman and was blessed with 12 children through his second wife and he has to maintain a big family and in the above circumstances, the direction of the lower Court to pay Rs.1,000/- per month to the first petitioner and Rs.500/- per month to the third petitioner is not reasonable and the same is liable to be set aside. It is also submitted that the first petitioner herself claimed a maintenance of Rs.3,000/- per month, but whereas this Court through the interim order, dated 02-02-2009, directed the respondent to pay a sum of Rs.5,000/- per month to the petitioners 1 and 3. It is also submitted that since the respondent is a pensioner and having a big family to maintain, reasonable orders may be passed. 13. The learned counsel for the petitioners argued that the evidence on record proves that the respondent has neglected and refused to maintain the petitioners. It is further submitted that the first petitioner, who was doing business in bangles, herself had performed the marriage of her daughters and since she is unable to do any work due to old age, she is claiming maintenance. It is further argued that mere the claim of pronouncement of talaq is not sufficient and it must be communicated to the wife. He further submitted that where the husband fails to prove that the pronouncement of talaq is communicated to his wife, there is no divorce and the marriage shall be deemed to be subsisting and the muslim woman is not entitled to claim maintenance under Section 125 of the Cr.P.C. In support of his contention, he has relied on ZAMRUD BEGUM v. K. MD. HANEEF AND ANOTHER [3] a n d S. SHAKILA, TARIGONDA (V) v. S. KHALEEL, GHOUSE MOHIUDDIN [4]. 14. In the light of the rival contentions, the points that arise for consideration are: 1. Whether there is any valid communication of pronouncement of talaq (divorce) by the respondent to the first petitioner? and 2. Whether the petitioners are entitled to claim maintenance and if so, to what extent? POINT NO.1: 15. The petitioners have mentioned their address at LIG- 023, H.No.5-3-82, A.P.H.B. Colony, Bhongir (T), Nalgonda Town. Admittedly, Ex.P-7 has been sent to the first petitioner by mentioning the address as Smt. Raheemunissa D/o. late Mohammed Haneef, C/o. Sri Aleemuddin, Office Suptd., S.P. Office, Nalgonda, H.No.4-10-567, Abbasi Colony, Near Abbasis Masjid, District NALGONDA (A.P.). The first petitioner, who is examined as PW-1, categorically deposed that she lived at Duppalli village for a period of one year and thereafter started residing with her parents at Bhongir. She categorically deposed that she did not receive any notice intimating the pronouncement of Talaq from the respondent or his Advocate. There is nothing on record to show that the first petitioner was residing at Nalgonda at the address given by the respondent. The evidence of the respondent also shows that the first petitioner has taken a separate house at Bhongir and she was residing there. So, it is clear that the communication of pronouncement of Talaq did not reach the first petitioner. The respondent, as RW-1, himself admitted that he is not aware whether the first petitioner is not aware of the paper publication of talaq notice. When the notice is not sent to the address, where the first petitioner was residing, and it was sent to some other address, where her brother was residing, the question of drawing presumption of due service, under Section 27 of the General Clauses Act, does not arise. Therefore, the decision relied on by the learned counsel for the respondent in C.VEERAPPA’s case (1 supra) is not applicable to the facts of this case. When once it is held that there is no proof of communication of the pronouncement of talaq to the first petitioner, the alleged divorce claimed by the respondent cannot be treated as valid under law. When once it is held that the first petitioner is not divorced woman, Section 125 of Cr.P.C. comes to her rescue. It is also not in dispute that the respondent is obliged to maintain his children. ISSUE NO.2: 16. The petitioners are claiming maintenance @ Rs.3,000/- per month. The respondent is a retired Sub- Inspector of Police. The petitioners’ case is that the second petitioner has been studying in Ceremic Technology, Sitarama Nagar, Gudur, Nellore and his total expenditure per annum towards hostel charges and college fees is Rs.20,000/-. Their further case is that the third petitioner is studying at Bhongir and the expenses towards college fees and books comes to Rs.5,000/- per year and their expenditure for food, clothing, medical expenses comes to Rs.20,000/- per annum. The evidence of PW-1 proves that the petitioners are unable to maintain themselves. 17. The learned counsel for the petitioners argued that the second petitioner though became major, since he is a student, the respondent is bound to maintain him. 18. Section 125 of Cr.P.C. envisages that only minor children, who are unable to maintain themselves, are entitled to claim maintenance. Therefore, the second petitioner, though a student, is not entitled to claim maintenance. Admittedly, the third petitioner is a minor and she was represented by the first petitioner and therefore, she is entitled to claim maintenance. The learned Magistrate awarded maintenance @ Rs.1,000/- per month to the first petitioner and Rs.500/- per month to the third petitioner from the date of the order and the same has been confirmed by the learned Sessions Judge. Admittedly, the respondent, after the death of his second wife, married third wife and subsequently married another woman. The case of the petitioners is that the respondent, after the death of his second wife, harassed her and she was compelled to go to her parents house. The petitioners’ case is that the respondent is having huge property and he is having house plot at Pahadi Shareef, Hyderabad. Of course there is no documentary evidence to show the property of the respondent. 19. Admittedly, the respondent has six daughters and one son through the first petitioner. He again married another wife when his marriage with the first petitioner was subsisting. He has total 12 children through his second wife. After the death of second wife, he married third wife and fourth wife. This itself shows that the respondent is capable of maintaining the petitioners. Though there is no documentary evidence to prove the immovable properties of the respondent, according to the first petitioner (PW-1), the respondent is having huge properties. Therefore, a reading of the entire evidence adduced by both parties gives an impression that the respondent is having sufficient means to maintain the petitioners. The first petitioner is the wife of a retired Sub-Inspector and the third petitioner is their daughter. The status of parties, living condition and the factum of increasing cost of living should be kept in mind. 20. Having regard to the cost of living and the status of the parties, I consider it just and reasonable to direct the respondent to pay a sum of Rs.3,000/- per month to the first petitioner and Rs.2,000/- per month to the third petitioner towards maintenance from the date of petition. 21. In view of the above discussion, Crl.R.C.No.964 of 2007 stands allowed in part as indicated supra and Crl.P.No.3572 of 2009 stands dismissed. ___________________ B. CHANDRA KUMAR, J Date: 16-12-2009 YCR [1] 2007 (4) ALT 633 (DB) [2] 2009 (2) ALT (Crl.) 218 (SC) [3] 2003 (1) ALD (Crl.) 707 (AP) [4] 2008 LAP 248