District :
South 24 Parganas
In the Court
of the Learned 3rd Judicial Magistrate, at Alipore, South 24
Parganas.
ACM Case
no. 834 of 2018
IN THE MATTER OF:
Saba
Afreen, Wife of Md. Shakil @ Md. Aqeel Asrari, Daughter of Md. Shabbir,
residing at premises being no. Z-5/238/70A, Bagdi Para Road, Post Office –
Badartala, Police Station Nadial, Kolkata – 700 044, District – South 24
Parganas.
…Petitioner
VERSUS
Md.
Shakil @ Md. Aqeel Asrari, Son of Md. Ayub Asrari, residing at premises being
no. T-170, Mitha Talab, Post Office – Badartala, Police Station – Rajabagan,
Kolkata – 700 018, District – South 24 Parganas.
…Opposite
Party
WRITTEN OBJECTION OF THE OPPOSITE PARTY MD. SHAKIL @
MD. AQEEL ASRARI
The
humble petition on behalf of the Opposite Party above named, most respectfully;
Sheweth as under:
1.
That the
present application under Section 125 of Code of Criminal Procedure, 1973 is
not maintainable either in the facts or in terms of provisions of the law.
2.
That the
Petitioner Saba Afreen not entitled to get any maintenance in terms of the
provisions of Section 125(4) of Code of Criminal Procedure,1973.
3.
That there is no
accrual of cause of action has ever been aroused to place this application
before the Learned Court by the Petitioners and therefore this application is
not maintainable in terms of the provisions of Code of Criminal Procedure,
1973.
4.
That the Petition is
speculative, harassing, motivated and barred by the Principles of Law and hence
it is liable to be rejected at once.
5.
That the petition is
suffering from suppression of material facts and necessary party, and therefore
liable to be dismissed at once with exemplary costs.
6.
That the petition is
suffering from any legal demand and thereby cause of action, the present
petition is motivated and without any jurisdiction.
7.
That the Opposite
Parties do not admit all the allegations made in the application of the
Petitioner, to be true and save and except those that are specifically admitted
he put the Petitioner, to the strict proof of the rest.
8.
That the contents of
the Petition are vague and based on after thought concocted story, made out by
the Petitioner to in-clinch issues in her favour, and thus no part of the
contents of the Petition has ever been admitted by the Opposite Party, except
those are the matter of records.
9.
That the Opposite
Party states that the present Petition has been instituted by the Petitioner
against the Opposite Party to cause several hassle and harassments to the
Opposite Party.
10.
That the application
is not made bona-fide either in facts or in terms of the provisions of law.
11.
That before dealing
with the statements paragraph wise, this Opposite Party would state the
following facts for the purpose of fair and appropriate adjudication of the
present proceedings before this Learned Court.
A.
That this Opposite
Party then a Divorcee and the Petitioner then a spinster at the time of
marriage and the marriage was solemnised on11.02.2017, according to Muslim
Rites and Customs and the said marriage was insisted by the mother of the
petitioner herein, who is sister of the father of the opposite party, and
therefore the petitioner and the opposite party were the sister and brother in
social family relationship, and therefore they have good relation in between
them. The said marriage was insisted by the petitioner’s mother Husna Ara, as
the opposite party since the year 2012, helping financial assistance, to the
Petitioner and the Petitioner’s family, to run her family.
B.
That the Petitioner’s
mother gave proposal to convert such relation into a matrimonial tie, and
therefore on sympathetic consideration of father of the opposite party, the
marriage has been solemnized in terms of Muslim rites and customs, which
subsequently registered before the Muslim Marriage Registrar.
C.
That at the time of
marriage, the Petitioner’s family did give nothing to the opposite party, since
the petitioner’s family has no financial ability for such nature of
performance, and whereas the opposite party did never expect to get anything
from the petitioner or her family.
D. That
the then the Opposite Party was engaged as an Ordinary Labour in Dubai, and
thereby earning as of INR 8,000/- ( Rupees Eight Thousand ) per month, and
whereas the Opposite Party taken leave of one month for his marriage in his
services at Dubai, therefore the Opposite Party was with the Petitioner for the
period of one month only in India, at Kolkata and thus the Opposite Party
departed Country on 11-03-2017, for his Service in Dubai. During such period
the Petitioner and the Opposite Party stayed and live together as husband wife,
and due consummation performed by and between them.
E.
That while the
Opposite Party was in Dubai, he used to send money separately to the Petitioner
via western union money transfer and other available modes as permissible in
our country, thereof.
F.
That the Opposite
Party consisting family member having old aged father, mother, one unmarried
Sister, and one Divorcee Sister with her one minor male child, and therefore
the Opposite Party assailed his moral duty to look after his family member, who
particularly old aged dependent and unmarried Sister, and thus the Opposite
Party in his meagre earning accommodated need of each and every family member
particularly the basic need of their livelihood.
G. That
the Opposite Party back to Kolkata, India only on 2nd day of July’
2018, and thus since the period commencing from 11th day of March’
2017 to the day of 2nd July’ 2018, the opposite party was not in
Kolkata and he was in Dubai in his services as Ordinary Labour, and thereby in
his meagre earning accommodate need of his family members.
H. That
the Petitioner using whatsapp and facebook, wherein contain so money photograph
in such duration, while the opposite party was in Dubai, more particularly in
the month of July’ 2017, then the opposite party while seeing such posts with
another guys, asked the petitioner, then the petitioner got aroused and did not
answer on his query, however after few days, the petitioner went to her
parental house on plea to her normal visit to meet with her parents, and
thereafter She did not return to her matrimonial home.
I.
That the Petitioner
withdrawn herself from the society of the opposite party at her own whims and
without any sufficient cause thereof, and consequently insisting for Divorce to
the Opposite Party, herein.
J.
That this is the
Petitioner who lead adulterous life with some other guys as apprehended in
given circumstances, and for such circumstances she withdrawn herself from the
society of the opposite party.
K.
That Since the
Petitioner failed to perform her matrimonial bondage with the opposite party
and his family members, she failed to ask for anything which may be permissible
to a prudent wife.
L.
That Since 2nd
day of July’ 2018, to till presently, the Opposite Party is without any job and
unemployed and thus in much hardship to run his family including himself and
therefore dependent on his friend, relatives, and other member of his society,
who time and again are trying to help him out.
M. That
while the Opposite Party as in month of August’ 2017, came to know from the
petitioner that She will never join the opposite party, then the opposite party
was suffering mentally and ultimately became victim of depression, which
ultimately resulted in his unemployment.
N.
That there is no
child from the wedlock of the petitioner and the opposite party.
O. That
the opposite party collected the details of the payments made to the Petitioner
and her family members, which are as follows :
i)
03-04-2015 – Rs.
35,000/- Rupees Thirty Five Thousand only given to the Petitioner’s Younger
Sister Shadiya Parveen, by the Opposite Party.
ii)
On 03-05-2015 – Rs.
3,000/- Rupees Three Thousand only given to the Petitioner’s Younger Sister
Shadiya Parveen, by the Opposite Party.
iii)
On 12-05-2015 – Rs.
4,000/- Rupees Four Thousand only to the Petitioner.
iv)
On 02-07-2015 – Rs.
7,000/- Rupees Seven Thousand only to the Petitioner.
v)
On 04-08-2015 – Rs.
4,000/- Rupees Four Thousand only to the Petitioner.
vi)
On 08-09-2015 – Rs.
5,000/- Rupees Five Thousand only to the Petitioner.
vii)
On 25-12-2015 – Rs.
12,600/- Rupees Twelve Thousand and Six Hundred only to the Petitioner.
viii)
On 10-01-2016 – Rs.
3,000/- Rupees Three Thousand to the Petitioner’s mother Husna Ara.
ix)
On 21-06-2016 – Rs.
10,000/- Rupees Ten Thousand only to the Petitioner.
x)
On 08-09-2016 – Rs.
3,330/- Rupees Three Thousand Three Hundred and Thirty only to the Petitioner.
xi)
On 01-05-2017 – Rs.
1,000/- Rupees One Thousand only to the Petitioner.
xii)
On 03-06-2017 – Rs.
2,000/- Rupees Two Thousand only to the Petitioner.
P.
That the Opposite
Party have made payments on several occasions to the Petitioner and to the
Petitioner’s younger Sister, as of around Rs. 3,00,000/- ( Rupees Three Lakhs )
only, which well established in the Bank Account of the Petitioner her younger
Sister.
Q. That
the Opposite Party have no immovable property in India or abroad, and nor have
any sufficient minimum balance in his Bank Account, which the Opposite Party
seeks to place before the Learned Court.
R.
That the Opposite
Party have sufficient materials and documents including photographs to
established his contention against the Petitioner.
S.
That the Opposite
Party crave leave of the Learned Court to produce such documents including
photographs at the time of trial and or hearing and or as and when require and
or as the Learned Court may direct in the interest of administration of
justice.
T.
That since this Opposite
Party is a victim of cruelty and desertion as inflicted by the Petitioner
herein, she is not entitled to get any maintenance either in the context of the
moral of the matrimonial bondage or in the terms of the provisions of law.
12.
That without waiving
any of the aforesaid Objections and Facts and fully relying thereupon and
without prejudice to the same. The Opposite Party now deals with the specific
paragraphs of the said Application in seriatim as hereunder.
- That
the Application is not maintainable either in facts or in its present form
and the petitioner has no cause of action for bringing this suit against
the Opposite Party as the said application is speculative, harassing,
motivated, concocted and baseless as is barred by the Principles of Law
and hence same is liable to be rejected at once.
- Save and except the statements made in
the said application which are matter of record, the Opposite Party denies
each and every allegations contained in the said application and calls
upon the petitioner to strict proof of the said allegations.
- That
with reference to the statements made in Paragraph nos. 1, 2, & 3,
this Opposite Party makes no comments which are the matter of facts as
well as the matter of records. This Opposite Party reiterate his version
as stated in Paragraph No. 11 of this application. This Opposite Party
puts to the strict proof to the petitioner in the context of the
statements as made out by the Petitioner in her application under Section
125 of Code of Criminal Procedure, 1973. The Opposite Party states that
this Opposite Party then a Divorcee and the Petitioner then a spinster at
the time of marriage and the marriage was solemnised on11.02.2017,
according to Muslim Rites and Customs and the said marriage was insisted
by the mother of the petitioner herein, who is sister of the father of the
opposite party, and therefore the petitioner and the opposite party were
the sister and brother in social family relationship, and therefore they
have good relation in between them. The said marriage was insisted by the
petitioner’s mother Husna Ara, as the opposite party since the year 2012,
helping financial assistance, to the Petitioner and the Petitioner’s
family, to run her family, and whereas the Petitioner’s mother gave
proposal to convert such relation into a matrimonial tie, and therefore on
sympathetic consideration of father of the opposite party, the marriage
has been solemnized in terms of Muslim rites and customs, which
subsequently registered before the Muslim Marriage Registrar. At the time
of marriage, the Petitioner’s family did give nothing to the opposite
party, since the petitioner’s family has no financial ability for such
nature of performance, and whereas the opposite party did never expect to
get anything from the petitioner or her family. The then the Opposite
Party was engaged as an Ordinary Labour in Dubai, and thereby earning as
of INR 8,000/- ( Rupees Eight Thousand ) per month, and whereas the
Opposite Party taken leave of one month for his marriage in his services
at Dubai, therefore the Opposite Party was with the Petitioner for the
period of one month only in India, at Kolkata and thus the Opposite Party
departed Country on 11-03-2017, for his Service in Dubai. During such
period the Petitioner and the Opposite Party stayed and live together as
husband wife, and due consummation performed by and between them. While
the Opposite Party was in Dubai, he used to send money separately to the
Petitioner via western union money transfer and other available modes as
permissible in our country, thereof.
- That
with reference to the Paragraph nos. 4, 5, 6, 7, 8 & 9 this Opposite
Party denies and disputes the contents and purports of the statements made
in those paragraphs, and put strict proof thereof to the Petitioner, save
and except those are the matter of records. . This Opposite Party
reiterate his version as stated in Paragraph No. 11 of this application.
This Opposite Party puts to the strict proof to the petitioner in the
context of the statements as made out by the Petitioner in her application
under Section 125 of Code of Criminal Procedure, 1973. The Opposite Party
states that the Opposite Party consisting family member having old aged
father, mother, one unmarried Sister, and one Divorcee Sister with her one
minor male child, and therefore the Opposite Party assailed his moral duty
to look after his family member, who particularly old aged dependent and
unmarried Sister, and thus the Opposite Party in his meagre earning
accommodated need of each and every family member particularly the basic
need of their livelihood. The Opposite Party back to Kolkata, India only
on 2nd day of July’ 2018, and thus since the period commencing from
11th day of March’ 2017 to the day of 2nd July’
2018, the opposite party was not in Kolkata and he was in Dubai in his
services as Ordinary Labour, and thereby in his meagre earning accommodate
need of his family members. The Petitioner using whatsapp and facebook,
wherein contain so money photograph in such duration, while the opposite
party was in Dubai, more particularly in the month of July’ 2017, then the
opposite party while seeing such posts with another guys, asked the
petitioner, then the petitioner got aroused and did not answer on his
query, however after few days, the petitioner went to her parental house
on plea to her normal visit to meet with her parents, and thereafter She
did not return to her matrimonial home. The Petitioner withdrawn herself
from the society of the opposite party at her own whims and without any
sufficient cause thereof, and consequently insisting for Divorce to the
Opposite Party, herein. This is the Petitioner who lead adulterous life
with some other guys as apprehended in given circumstances, and for such
circumstances she withdrawn herself from the society of the opposite
party. Since the Petitioner failed to perform her matrimonial bondage with
the opposite party and his family members, she failed to ask for anything
which may be permissible to a prudent wife.
- That
with reference to the Paragraph nos. 10, 11, & 12, this Opposite Party
denies and disputes the contents and purports of the statements made in
those paragraphs and puts strict proof thereof, to the Petitioner, save and except those
are the matter of records. . This Opposite Party reiterate his version as
stated in Paragraph No. 11 of this application. This Opposite Party puts
to the strict proof to the petitioner in the context of the statements as
made out by the Petitioner in her application under Section 125 of Code of
Criminal Procedure, 1973. The Opposite Party states that Since 2nd
day of July’ 2018, to till presently, the Opposite Party is without any
job and unemployed and thus in much hardship to run his family including
himself and therefore dependent on his friend, relatives, and other member
of his society, who time and again are trying to help him out. While the
Opposite Party as in month of August’ 2017, came to know from the petitioner
that She will never join the opposite party, then the opposite party was
suffering mentally and ultimately became victim of depression, which
ultimately resulted in his unemployment. There is no child from the
wedlock of the petitioner and the opposite party.
- That
the Opposite Party beg to states that the Opposite Party have made
payments on several occasions to the Petitioner and to the Petitioner’s
younger Sister, as of around Rs. 3,00,000/- ( Rupees Three Lakhs ) only,
which well established in the Bank Account of the Petitioner her younger
Sister.
- That
the Opposite Party beg to states that the Opposite Party have no immovable
property in India or abroad, and nor have any sufficient minimum balance
in his Bank Account, which the Opposite Party seeks to place before the
Learned Court.
- That
the Opposite Party beg to states that the Opposite Party have sufficient
materials and documents including photographs to established his
contention against the Petitioner.
- That
the Opposite Party beg to states that the Opposite Party crave leave of
the Learned Court to produce such documents including photographs at the
time of trial and or hearing and or as and when require and or as the
Learned Court may direct in the interest of administration of justice.
- That
the Opposite Party beg to states that since this Opposite Party is a
victim of cruelty and desertion as inflicted by the Petitioner herein, she
is not entitled to get any maintenance either in the context of the moral
of the matrimonial bondage or in the terms of the provisions of law.
23.
That in the facts and
in the laws, it is totally evident from the application itself that the petitioner
made her endavour to put the Learned Court, into motion to get her wrongful
gains by procuring orders in terms of her prayer before the Learned Court.
24.
That in the facts and
in the laws, it is totally evident from the application itself that the petitioner
trying to miss utilizing the jurisdiction of this Learned Court.
25.
That in the above
circumstances, there is no cause of action for the present proceedings by the
Petitioner, against the Opposite Party, the Opposite Party, accordingly pray
that the Petition be dismissed with costs.
26.
That the Petitioner,
neither has any cause of action nor the basis for filling the present petition
and the Petitioner’s complaint is entirely baseless and misconceived and
deserve to be dismissed on this ground alone.
27.
That the Petition is
false, frivolus and vexatious and has been filed with the mala fide intention,
and as such deserves to be dismissed with special costs.
28.
That the Petitioner,
is not entitled to any relief as prayed in the Petition, and the same is liable
to be dismissed.
29.
That in the aforesaid
circumstances, the Opposite Party is seeking the dismissal of the Petition
filed by the Petitioner, with exemplary cost.
30.
That this application
is made bona-fide and in the interest of the administration of justice.
It is therefore
prayed that your Honour would graciously be pleased to dismiss the application under
Section 125 of the Criminal Procedure Code’ 1973, of the Petitioner, and or to
pass such other order /orders as your Honour may deem fit and proper in the
interest of the administration of justice
For this act of
kindness your petitioner as in duty bound shall ever pray.
Verification
I, Md. Shakil @ Md. Aqeel Asrari,
being the Opposite Party, herein, do hereby declare that the forgoing
paragraphs no. ________to ________, are true to the best of my knowledge and
rest prayers portions are my humble submission before the Learned Court and I
duly sign and verify this petition on _____________2019.
Md. Shakil @ Md. Aqeel Asrari
Identified
by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated : _______________2019.
Place : Alipore Police Court
AFFIDAVIT
I, Md. Shakil @ Md. Aqeel Asrari, Son of Md. Ayub Asrari, residing at
premises being no. T-170, Mitha Talab, Post Office – Badartala, Police Station
– Rajabagan, Kolkata – 700 018, District – South 24 Parganas, do hereby
solemnly affirm and declare as under :-
1 : That I am being the Opposite
Party, in the above case, thoroughly conversant with the facts and
circumstances of the present case and am competent to swear this affidavit.
2 : That the facts contained in paragraph
nos. __________to ___________are true to my knowledge and belief, and the rests
are my humble submissions, before this Learned Court.
DEPONENT
Identified
by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated :…………………2019.
Place : Alipore Police Court.
N O T A R Y
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