HASEENA BEE & ANOTHER Vs. SAMSEER MOHAMMED

JUDGEMENT

(1.) CHALLENGE in the present petition filed under section 482 of the Code of Criminal Procedure is to the order dated 05.01.2009 passed by Sessions Judge, Kabeerdham (Kawardha) in Criminal Revision No. 71 of 2007 affirming the order dated 03.11.2007 passed by Judicial Magistrate First Class, Kabeerdham in Misc. Criminal Case No. 08 of 2007. Vide order dated 03.11.2007, the learned trial Magistrate had rejected the application filed by the petitioners under Section 125 of the Code of Criminal Procedure for grant of maintenance. In revision, the Re -visional Court has though granted maintenance of Rs. 600 per month in favor of petitioner No. 2 but rejected the claim of petitioner No. 1 on the ground that divorce between respondent and petitioner No. l had already taken place. Counsel for the petitioners submits that till date petitioner No. l has not remarried and therefore in view of the decisions of the Supreme Court in the matter of Iqbal Bano Vs. State of U.P. and another : (2007) 6 SCC 785 and in the matter of Shabana Bano Vs. Imran Khan, (2010) I SCC 666, the application filed under Section 125 of the Code of Criminal Procedure is very much maintainable. According to him, the case in hand is squarely covered by the aforesaid judicial pronouncements wherein it has been held by the Apex Court that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Code of Criminal Procedure after the expiry of Iddat period also, as long as she does not remarry.

(2.) IN view of the aforesaid submission of the counsel for the petitioners punctuated with the mandate of the Supreme Court referred to above, petition succeeds. Order dated 05.01.2009 passed by Sessions Judge, Kabeerdham (Kawardha) is hereby set aside so far it relates to rejection of claim in respect of petitioner No. 1. Case is remanded to the Magistrate Court for being decided afresh on its own merits after giving due opportunity to the parties. As the original proceedings are pending since 2005, case is expected to be decided as expeditiously as possible. Record be sent back to the Magistrate Court. Both the parties shall appear before the concerned Magistrate Court on 22ndi February, 2012. So far as the enhancement of maintenance amount in favor of petitioner No.2 is concerned, considering the nature of evidence as adduced by the parties, income of the respondent and looking to the present day cost of living, the award of maintenance amount in favor of petitioner No.2 is enhanced to Rs. 1,000 from that of Rs. 600 from today.