ZAHIRUNNISA Vs. WAHAB MOHAMMED

JUDGEMENT

(1.) THIS is a petition filed under Section 482 of the Code of Criminal Procedure for setting aside the order dated 14 -12 -1995 passed by IIIrd Additional Sessions Judge, Bilaspur in Criminal Revision No.187/1989, so far as it relates to refusal of grant of maintenance to the petitioner Zahirunnisa in accordance with Section 125 of the Code of Criminal Procedure from her husband - the respondent Wahab Mohammed.

(2.) THE petitioner Zahirunnisa and Rahim Mohammed, claiming themselves to be the wife and son respectively of the respondent Wahab Mohammed and also claiming that they are unable to maintain themselves, whereas the respondent has sufficient means to maintain them but refused to maintain them, filed an application under Section 125 of the Code of Criminal Procedure for grant of maintenance to both of them, total amounting to Rs. 400/ - per month. In reply, the respondent defying the same, submitted that, no legal marriage had taken place between himself and Zahirunnisa, and Rahim Mohammed is not the son born out of their wedlock. Apart from that, he divorced Zahirunnisa on 14 -5 -1984 and also communicated the divorce to her. According to the Muslim Women (Protection of Rights on Divorce) Act, 1986 (henceforth 'the Act'), Zahirunnisa is not entitled for grant of maintenance, being a woman divorced, and her son Rahim Mohammed is also not entitled for grant of maintenance, as, on the date of application, he was more than 2 years.

(3.) LEARNED trial Court, after appreciating the evidence on record, held that, Zahirunnisa was married to Wahab Mohammed on 17 -4 -1980 in accordance with the rites and customs of Muslim Law, but Wahab Mohammed divorced Zahirunnisa on 14 -5 -1984. Rahim Mohammed did not took birth out of their wedlock. Apart from that, on the date of presentation of the application under Section 125 of the Code of Criminal Procedure, he was more than 2 years. Therefore, vide order dated 22 -6 - 1989, passed in Criminal M.J.C. No.205/1988, learned trial Court dismissed the application filed by Zahirunnisa and Rahim Mohammed under Section 125 of the Code of Criminal Procedure. The said order was challenged in criminal revision bearing No.187/1989 before learned IIIrd Additional Sessions Judge, Bilaspur, who, after hearing both the parties, on 14 -12 - 1995, held that, Rahim Mohammed, being the son of Wahab Mohammed, is entitled for grant of maintenance, and accordingly ordered to pay maintenance from 18 -4 -1984 at the rate of Rs. 200/ - per month, but denied to grant maintenance to Zahirunnisa on the ground that although she was married to Wahab Mohammed, she was divorced by him on 14 -5 -1984, and under the provisions of the Act, her right of maintenance from her husband is barred.