IQBAL BANO Vs. STATE OF U P

JUDGEMENT

(1.) In the present appeal the appellant questions correctness of the order passed by a learned Single Judge of the Allahabad High Court dismissing her revision petition (Criminal Revision No.1161 of 1995). The appellant had questioned correctness of the order passed by learned Additional Sessions Judge, Aligarh, setting aside the order dated 7.7.1994 passed by the learned Judicial Magistrate, Aligarh. By the said order dated 7.7.1994 learned Judicial Magistrate had accepted the prayer for grant of maintenance filed by the appellant in terms of Section 125 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.). She directed respondent No.2 to pay a monthly maintenance of Rs.450/- to the appellant.

(2.) Background facts in a nutshell are as follows: The appellant had married respondent No.2 in the year 1959 and a child was born to them in 1966. Unfortunately the son died in the year 1991. Respondent No.2 who was living separately from the appellant stopped coming to the house of the appellant where she was staying and also did not pay anything for her subsistence. Therefore, an application under Section 125 Cr.P.C. was filed on 21.2.1992. Before that she had sent notice demanding payment of maintenance. Respondent No.2 replied to the notice and denied his liability to pay maintenance. As noted above, on 21.2.1992 application was filed claiming maintenance of Rs.500/- p.m. It was stated that that the income of the respondent No.2 was Rs.4,000/- per month. On 28.5.1992 written statement was filed wherein it was stated that long back he had divorced his wife by utterance the word "Talaq" "Talaq" "Talaq". It was further stated that there was severance of marital ties between them for years as the divorce was over by the utterance of the word "Talaq" thrice and he had also paid Mehr and the Iddat period was over the claim was not acceptable. He also stated he had contacted the second marriage.

(3.) The learned Magistrate held that there was no material to substantiate the plea of divorce and accordingly maintenance was granted. Order was challenged by filing a revision before the learned Additional Sessions Judge. Stand of the respondent was that after enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (in short the Act), petition under Section 125 Cr.P.C. was not maintainable. It was also stated that not only in the reply to the notice, there was mention about the utterance of the word "Talaq" "Talaq" "Talaq", there was mention in the written statement also, amounting to divorce. Learned Additional District and Sessions Judge accepted the plea. He held that after the enactment of the Act, petition by any married Muslim woman under Section 125 Cr.P.C. is not maintainable. Such woman can claim maintenance under the Act and not under the Cr.P.C. It was further held that mention was made in the written statement about the divorce purportedly 30 years back and the mentioning about this fact in law amounted to divorce. Accordingly, order of the learned Magistrate was set aside. High Court dismissed the writ petition summarily observed as follows: