AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.200 OF 2007 Mrs. Rehana Mushtaz Temrekar ... Applicant Vs. State of Maharashtra & Anr. ... Respondents Mr. Hakim Salim A.R. for the applicants. Ms. Ketki Minhas i/b M/s. H & M Legal Associates for respondent 2. CORAM : SMT. RANJANA DESAI & A.A. SAYED, JJ. DATED : 9TH APRIL, 2008. ORAL JUDGMENT:- (Per Smt. Ranjana Desai, J.) 1. The applicant is aggrieved by order dated 15/2/2007 passed by the Family Court, Bandra, Bombay, in Petition No.E-218 of 1999. 2. An application was filed by the applicant under section 125 of the Code of Criminal Procedure (for short, “the Code”) for maintenance for herself and her minor daughter on the ground that respondent 2- husband (for convenience, “the respondent-husband”) had abandoned the applicant-wife without any fault on her part and had neglected to AJN 2 maintain her. The applicant had claimed Rs.1,000/- for herself and Rs.1,000/- for her minor daughter. 3. The respondent-husband filed written submissions denying all the allegations levelled against him. He, inter alia, contended that the applicant had given undertaking to reform herself and lead a normal life. However, she did not abide by that undertaking. He further contended that the applicant did not show any inclination to lead a happy married life with him and, therefore, he had to dissolve the marriage by pronouncing Talak. It appears that the applicant filed affidavit of evidence dated 26/4/2006. The respondent-husband filed his written statement and also filed certain documents in support of his case. The applicant did not lead any evidence to refute the case of the respondent- husband. She remained absent from the proceedings and, therefore, the court had to proceed in her absence. After perusing the affidavit of evidence and the documents on record, learned Judge dismissed the applicant's claim for maintenance. He observed that the factum of marriage has not been refuted by the applicant and, therefore, her remedy is to make application under section 3 of The Muslim Women (Protection of Rights on Divorce) Act, 1986. He, however, directed the respondent-husband to pay maintenance allowance of Rs.1,000/- per month to the minor daughter from the date of the order and further AJN 3 directed him to clear all the arrears awarded to the applicant by the impugned order. 4. We have heard, at some length, learned counsel appearing for the applicant. He submitted that the applicant could not participate in the proceedings because at the relevant time, she fell ill. He submitted that on account of her absence, correct facts have not been brought on record. He submitted that it is not correct to say that the applicant had refused to lead a happy married life with the respondent-husband. He submitted that, in fact, the applicant was ill-treated and she was forced to execute certain documents. He submitted that no Talaknama was served on the applicant and the applicant disputes the factum of Talak. Learned counsel very heavily relied on the judgment of this court in Dagdu s/o. Chotu Pathan v. Rahimbi Dagdu Pathan & Ors., 2002 ALL MR (Cri) 1230 and submitted that it is not enough for a husband to contend in the written statement that he has divorced his wife. The factum of divorce will have to be proved by leading evidence. He submitted that since the respondent-husband has not divorced the applicant, she is entitled to maintenance. In the circumstances, he submitted that either this court may pass appropriate orders granting her maintenance or remand the matter to the Family Court for fresh hearing. AJN 4 5. On the other hand, learned counsel appearing for the respondent- husband has submitted that the applicant did not participate in the proceedings. She allowed eight years to go by. She never challenged the divorce and it is not proper for her to now take up the plea that there is no divorce. Learned counsel submitted that all efforts were made by learned mediator to bring about the settlement between the applicant- wife and the respondent-husband. Learned counsel submitted that the evidence on record clearly substantiates the case of the respondent- husband. She further submitted that the respondent-husband has remarried; he has two children; he is a driver, who is earning a meager amount per month and he is paying Rs.1,000/- to his daughter. He is not able to bear any additional burden of maintenance. She submitted that therefore, the criminal revision application be dismissed. 6. Having heard learned counsel appearing for the parties and having perused the evidence on record, we are of the opinion that in the interest of justice, the matter needs to be remanded to the Family Court for fresh hearing in accordance with law. Admittedly, though the applicant had filed her affidavit evidence, she has not participated in the proceedings. We are informed that she was ill. This is disputed by learned counsel for the respondent-husband. However, the fact remains that the impugned order is in the nature of an ex-parte order. In AJN 5 matrimonial matters, in our opinion, interest of justice would require a proper adjudication of issues after hearing both sides. This is more so, when the factum of divorce itself is disputed by the applicant and when reliance is placed on Full Bench decision of this court in Dagdu Chotu Pathan's case (supra). We, therefore, feel that this is a fit case which should be remanded to the Family Court. We have noticed that the applicant is paying Rs.1,000/- to the daughter. The daughter is studying in a convent school. Her school fees are stated to be Rs.400/- per month. Considering the passage of time, prima facie, we are of the opinion that Rs.1,000/- is inadequate. Both the applicant-wife and the respondent-husband are present in the court. On instructions from the respondent-husband, who is present in the court, the respondent- husband has agreed to pay Rs.1,500/- per month to his daughter – Ekara though claim made in the application is Rs.1,000/-. We accept the statement. In the circumstances, we pass the following order : O R D E R 7. Impugned Order dated 15/2/2007 passed by the Family Court, Bandra, Bombay, in Petition No.E-218 of 1999 is set aside. The Petition AJN 6 No.E-218 of 1999 is remanded to the Family Court for fresh hearing in accordance with law. Since the divorce itself is disputed, the Family Court shall permit the parties to lead fresh evidence and tender the documents. The Family Court shall deal with the matter independently and in accordance with law. We make it clear that we have not expressed any opinion and nothing said by us in this order shall be treated as expression of opinion on the merits of the case. In the meantime, the respondent-husband shall pay Rs.1,500/- to his daughter - Ekara. Needless to say that the maintenance amount will abide by the final order that may be passed by the Family Court. Parties are present in the court. They shall appear before the Principal Judge, Family Court on 5/5/2008, who shall then assign the matter to the appropriate court. Criminal revision application is disposed of. [SMT. RANJANA DESAI, J.] [A.A. SAYED, J.]