Maintenance of wife from husband. Can a divorced muslim woman get maintenance?

                                                                              Maintenance to wife after divorce or during the pendency of divorce.

                              When a woman is divorced she has a right to get the maintenance from her husband till remarriage of her. she can also get the maintenance during the pendency of trial of case. In every religion act like Hindu marriage act 1955, Muslim woman( protection of rights on divorce act) 1986, Parsi marriage and divorce act, 1936, Special marriage act 1954,Christian marriage act 1872 they all provides the maintenance facility after the divorce. This system is developed to prevent the starvation in the society. In this article we would talk about the maintenance to wife under Crpc.

  

Maintenance to wife under Crpc :- In Crpc maintenance is only provided to only wife but it is provided to children and parents also. All provision is provided in the section 125 to 128 in crpc. 

According to section 125 of Crpc :-

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or 

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself.

           These are the situations provided in Crpc where a wife her children can demand for the maintenance. Here we have to understand the meaning of wife according to this section

"Wife is woman who has been divorced by or has obtained a divorce from her husband and has not remarried."

 A woman can also demand for the interim maintenance. 

 There is a case of Jaiminiben Hirenbhai Vyas vs Hirenbhai Rameshchandra Vyas

 In this case family court is granted maintenance only to the minor daughter not to the wife. The reason was giving that wife is earned before the marriage and she also earned after the separation So the maintenance is not granted to the wife. High court is not satisfied from the judgement because during the period when man and wife are living together as a husband wife, wife was not working she skips her job after marriage and birth two child. On this High court grants the maintenance to the wife from the date of the order. After that wife applied in Supreme court because high court granted maintenance from the date of the order not from the date of the application. In this supreme court said that For passing any order there should be a reason why this order is passed but in this case high court did not mention why the maintenance is granted from the date of the order. So Supreme court reverse the order and granted maintenance from the date of the application.

What is an Interim Maintenance:- 

 This maintenance is provided by court to the wife during the pendency of the proceeding. An application for the interim maintenance is disposed of within sixty days from the date of the service of notice of the application of such person.

There is famous case  Shamim ara vs State of U.P 

In this case shamim ara is wedded in 1968 according to muslim shariyat law. She has four sons from this marriage. She filed an application on 1979 on behalf of herself and two minor child.On 5.12.1990 her husband replied that he had already divorced the appellant on 11 july 1987. He also claimed that he had purchased a house and gives to the appellant in lieu of mehar. Because it was a triple talaq thats why there is no written statement. In 1993 family court judge denies the maintenance of her court stated that she is not entitled to get the maintenance because she already divorced from the respondent. Court granted maintenance only to his minor son of rs150 and the other one is major during the pendency of the case.

            The appellant referred a revision before the high court. High court stated that when the divorced was given to the appellant it was not communicating to her. But communication was completed on 5.12.1990. so the appellant was entitled to maintenance from 1.1.1988 to 5.12.1990.

              The appellant has filed a appeal with the single issue that whether the appellant has said to be divorced. The court said that divorce should be in the presence of both parties. There should be a valid reason and there should be a attempt of reconciliation with the help of two arbitrary one is from the husband side and the other is from the wife side. If these conditions are not fulfilled there is no talaq. In this case the marriage is not dissolved and respondent is not free from his liabilities. He is liable for the payment of maintenance and the cost in this appeal shall be borne by the respondent.

Can a divorced muslim woman get maintenance

A muslim woman also entitled to get the maintenance after the divorce. Section 125 is available for the women in india. Woman can be of any region, community and nationality. But according to muslim law woman can get the maintenance only during her iddat period.

Can a child be a witness in court?

 

    Child Testimony in Indian evidence act, 1872

                     

       Can a child be a witness in court? Its a big question. In Indian evidence act define all the conditions about the witness like who can be a witness? Who can be allowed to testimony in court etc.In this study we would see the answer of some question

Who is a witness:- A witness is someone who is present at the time of crime and gives testimony before the court about the crime or any accident. He gives the evidence to the court about the crime and tells about what was actually happened that time.

Who is competent for witness:- This states in section 118 of Indian evidence act 1872. It states "All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease whether of body or mind or any other cause of the same kind."

So according to this definition a person who can understand the questions, what he ask to him can be testify in court. In this the person could be anyone like adult, child, man, woman etc. He has to give the rational answers to the question. A lunatic is also capable of giving the testify, unless he is not understanding the question properly and not gives the answer properly .                                     

 Child witness  

A child can be a witness in a case except he is in the age of his tender year. If a child is able to understand the question under can give the answer properly in front of court. His testimony would be admissible in court. In india today child in the age of 7 8 years they can understand most of the situations. So the witness of a child is admissible.

                 The problem is arise in the credibility of child witness. Court has to take more prudence while taking the witness of child because child has more imaginative power than adult. They easily believe on any situation which is told to them. Before taking any decision judge or magistrate should ensure that child is proper understand the question. He is not making any imagination story. 

Child witness case :

                                 State of Maharashtra vs Bharat Farikha  Dhiwar

In this case deceased child Nisha dead body is found in the field of sugarcane,There is two child witness who said that they saw deceased with the accused at the canal after some time accused comes and there was a blood stain on his shirt and he had a bag on his shoulder on which the blood dropping . Witness of child be found truthful by trial court but high court disagree with this decision. But supreme court held that there is no reason is sufficient given by high court to discarding  the evidence of two child witnesses. Apex court said it is immaterial that shirt is not found, on this basis witness could not be discard. It was quite possible that the accused hide the shirt.

It was held that It is desirable that the judge and the magistrate should always record their opinion that the child understands the truth and courts should also state as to why they think that the witness understand the duty of speaking the truth. An omission to administer oath even to an adult goes only to credibility of witness not on the competency.

                          Before check the credibility court also check that  child is capable of giving the answer. For this court has to work with prudence. This procedure from which the capacity of a child witness is seen is called Voir- Dire test. In this procedure court ask some simple question to child like where he live, where he study, In which class he study, who many brother and sister you have etc. If the child is giving answer properly of these question than court comes on a conclusion that the witness is capable of giving the witness.

    

                 Court also examine that the child is not tortured. Child can be easily tortured by assailant and threat by him. To avoid it child should be put in a proper take care and safe environment. There should not be lengthy process of court so that witness need not be come again and again because it can create a mental pressure on the child mind. 

Corroboration of testimony:- Section 114 of Indian evidence act demand for corroboration. To see the reliability of evidence there should be some additional evidence to get on a conclusion. Court can not fully relied on the child witness.There should be careful scrutiny of evidence before come to the conclusion. Because a child mind can be easily molded and they have a very good imaginative power. Cross examination and ask some other related question could help the court to find the conclusion that child in understanding the question and gives a proper answer.

There is child witness case 

                                Nivrutti pandurang kokate vs State of maharashtra

 In this case wife(appellant 1) of deceased had a extra marital affair with other person(appellant 2and3). In this case witness of deceased's 12 year old daughter was admissible. She told about the estranged relationship between her mother and father. She stated that her father used to sleep alone in a hut and eat in his brother house. On the day of murder her mother washed the blood of her father with bucket and spread a shawl on tiles. The appellants put the dead body in the shawl and put gunny bag on the dead body and lifted it by holding the shawl. They carried the body to the field, buried it and returned home. Then her mother lock the hut where the deceased killed and she went near her brother who continued to sleep through the incident and slept. Court held that this evidence is reliable. It was neither embellished nor embroidered. Such type of evidence should be considered with close scrutiny.  

  

 

What is the definition of evidence in Indian evidence act 1872? What are the types of evidence?

Evidence in Indian evidence act 1872:-  

Evidence is defined in section 3 of the Indian evidence act -

"Evidence means and includes-

(1) All statements which the courts permits or requires to be made before it by witnesses in relation to matters of facts under enquiry; such statements are called oral evidence.

(2) All documents including electronic records produced for inspection of the court, such documents are called documentary evidence."

    So this a definition of evidence given in the evidence act. According to this definition all statements is given by witness and all document produced in court are evidence but there is a condition on these they must be permitted by court because if court permits every statement and document it would be only a wastage of time of court and people.

Types of Evidence:-

There are the followings types of evidence

• Oral Evidence  
• Documentary Evidence
• Circumstantial Evidence
• Direct Evidence
• Hearsay Evidence
• Primary Evidence
• Secondary Evidence
• Electronic Evidence
• Forensic Evidence
• Judicial Evidence

Oral Evidence:- As it is written in the definition of evidence oral evidences are statement given by the witnesses in the court. These statement given through their words orally. But sometimes it could be given in signs. For example if a deaf and dumb person wanted to say something he could be only says his words in signs. 

         Oral evidences sometime does not work For example in a contract cases. If A contracts B that he would supply 3 tones of grain every month to B and B will pay 2000 rs for the grain every month. In the case of broken the contract by any one of them Other should show the contract documents in the court. He can not say orally only. He must have to show all the documents.  

Documentary Evidence:- According to the Indian Evidence act 1872 Document is defined in section 3.

"Document"-"document" means any matter expressed or described upon any substance by letter, Figures or marks or by more than one of those means intended to be used, or which may be used for the purpose of recording the matter.

Illustration

(a) A writing is a document ;

(b) Words printed, lithographed or photographed are documents ;

(c) A map or plan is a document ;

(d) An inscription on a metal plate or store is a document ;

(e) A caricature is a document.

 

 This is the definition of document. So all the contents written through words, photographs, map, caricature all are documentary evidence. These evidence are produced for the inspection of the court. As we said earlier in cases like contract, agreement etc. there should be a written document to prove the fact. In these type of cases no oral evidence could be produced in court.

Circumstantial Evidence:- Circumstantial evidences are those evidence which are based on the circumstances at that time happens. They are not direct evidence. They are to proved by dierct evidences. But in circumstantial evidences there are some rules like they should be directly conclude a fact. They should not be work on "may" or "may not be". They should be directly point out the guilt of accused.

 There is a case study on this

Chandru @ Chandrasekaran Vs state  In this case In 2004 A college student found dead because of overdose of drug. At the time of death the two appellant were also staying in the same hotel room. Both the session court and the madras high court convicted both appellants on the charges of murder and conspiracy. After that they appeal in supreme court. Court says " The circumstances proved can not lead to the interference that it is the accused alone who committed the offence. In fact, the prosecution has even failed to prove beyond reasonable doubt that the death is homicidal in view of the inconsistencies in the medical evidence dealt by us above. Even otherwise, it is not proved that it was the accused who injected the deceased and the possibility of the accused injecting himself or some other person doing can not be rule out." On this they were directed to be released immediately unless required in any other case.

Direct Evidence:-Direct evidences are those evidences which are directly related to fact. They have the willing to prove a fact directly. There are some  examples

(1) If A thefts in B's house and  C says that he seen A to theft in B's house. It is a direct evidence.

(2) If L says that he seen M to murder N. This is also a direct evidence.

   In both examples there is no need to prove if someone says that he saw someone doing that, it means it is clearly proved the fact. 

Hearsay Evidence:- As the hearsay word denotes, "words", whatever a person is hear from third person. Witness only knows the facts from the third party. He does not know anything himself. This is not a direct evidence. This is a weak evidence because all credit goes to third party. 

Example:- If A says to B that he saw C to killed B's wife. In this case B can not be directly witness. because he heard all the matter from A.

Primary Evidence:- Primary evidence are to be defined in section 62 of Indian Evidence act 1872. Primary evidence are original documents which are to be shown in the court to be proved a fact. They should not be in a copy form. They should be in original form. If they are in copy form it could not be considered as a primary evidence.

Secondary Evidence:- This is defined in section 63 of Indian Evidence act 1872. They are the copy of original document. For example a photograph of original document, copies made from original document. This evidences can be used in some cases like when the original document is destroyed or lost or original document is in possession of that person who is out of reach, when the original document is not easly movable etc.

Electronic Evidence:- Earlier there is no electronic evidence is covered in indian evidence act1872. After the amendment of evidence act in 2000 elecrtonic records are also included in the definition. These all are defined in section 65-A and 65-B of Indian Evidence act 1872. All electronic and digital data comes under this. Section 65-B (1) states"Notwithstanding anything contained in this act, any information contained in an electronic record which is printed on a paper, stored , recorded or copied in optical or magnetic media produced by a computer( hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible."
 So all types of electronic records printed on a paper or recorded and copied in a magnetic disk are the electronic evidence.

Forensic Evidence:- For the investigation of DNA, blood groups and fingerprints forensic science is used. These all evidence helps to prove or disprove the facts. When some kind of crime is happened some forensic team is comes and collect the sample from that place which helps to solve the case and proves the fact. When they collects the data they used forensic science to find out the fact.

Judicial Evidence:- Judicial evidence are those evidence which are to be recieved before the magistrate in the court for eg confession by the accused, statement of witnesses etc. If the evidences produced outside the court it would be called non judicial evidence.