MOHAMMAD SADIQ Vs. STATE

JUDGEMENT

(1.) This petition u/s. 397/401 Criminal Procedure Code. r/w. S.482 Criminal Procedure Code. is directed against the judgment and order dated 12/3/1998 passed by Sh. R.K. Yadav, ASJ, Shahdara holding that the order of maintenance under Section 125 Criminal Procedure Code. in favour of respondent No.2 would operate from the date of the application.

(2.) Facts in brief are: that Smt. Farhana (respondent No.2) filed a petition u/s. 125 Criminal Procedure Code. against the petitioner for grant of maintenance alleging that she was married to the petitioner on 28/3/1989 as per muslim rites and ceremonies, that she was subjected mal-treated for bringing less dowry and was ultimately deserted and was forced to live with her parents.It was stated that petitioner was working in the MCD and she was not able to maintain herself. Petitioner filed reply denying the allegations and stating that she had left the matrimonial house of her own choice and was not entitled to give maintenance. The petitioner also filed a petition for restitution of conjugal rights. By order dated 17/12/1996 trial court directed the petitioner to pay Rs.400.00 per month to respondent No.2 towards maintenance from the date of the order. Wife (Respondent No.2) filed a revision petition praying that the maintenance ought to have been granted from the date of the application and not from the date of the order. Learned Additional. Sessions Judge taking into consideration the fact that respondent No. 2 was not responsible for the delay of disposal of the maintenance application, allowed the revision petition and ordered that the order of maintenance would operate from the date of the application (24/4/1991) subject to the adjustment of any interim maintenance paid by the petitioner to the respondent, petitioner was further permitted to pay the arrears in monthly instalments. The order of the Ld. Additional. Sessions Judge is under challenge.

(3.) Learned counsel for the petitioner has argued that respondent No.2 was already divorced on the date she filed an application for grant of maintenance and being muslim she was not entitled for any maintenance. learned counsel for respondents 2 argued to the contrary: Admittedly, the petitioner, in his reply, did not take this' stand that the application was not maintainable or that respondent No.2 was already divorced. In any case, explanation (b) of Section 125 provides that wife u/s. 125 Criminal Procedure Code. includes a woman who has been divorced by or has obtained divorce from her husband. In view of this explanation, there is no merit in this contention of the petitioner.