SHAFI Vs. MEHMOODA BEGUM

JUDGEMENT

(1.) The short question for decision in this petition is whether a divorced Muslim women is entitled to grant of maintenance under Section 125 of the Code of Criminal Procedure or not.

(2.) In order to appreciate the question, the facts of the case may be briefly stated. The petitioner and respondent were married and from wedlock three children were bom, namely, one daughter who has since been married and two sons. An application under Section 125 of Code of Criminal Procedure (For short 'the Code') was filed by the respondent claiming maintenance, inter-alia, alleging that after his second marriage, the petitioner has started neglecting her and the children. An application was also filed for grant of interim maintenance which was allowed by learned Metropolitan Magistrate. The petitioner was directed to pay to the respondent maintenance at the rate of Rs.300/- per month with effect from 13th August, 1988 and to continue to pay or deposit future maintenance month by month by 15th of the succeeding month. The revision petition filed by the petitioner against the order of Metropolitan Magistrate was allowed by learned Additional Sessions Judge only to the extent that the maintenance amount was reduced from Rs.300/- to Rs.250/- per month. In all other respects the order granting interim maintenance has been upheld in the impugned order made by learned Additional Sessions Judge which is under challenge in this petition.

(3.) In the written statement filed by the petitioner to respondent's application under Section 125 of the Code, the petitioner, inter-alia, pleaded that he had divorced his wife and that in law a divorced muslim women is not entitled to maintenance. On the other hand, the respondent contended that on the date of the filing of the application claiming maintenance under Section 125 of the Code, the marriage was subsisting between the parties and that she came to know about the divorce for first time when the written statement was filed by the husband. The plea of the wife-respondent was that the factum of divorce will have to be enquired into and it cannot be decided without evidence being led in the trial court and till that fact is decided the maintenance should be ordered to be given to her by the petitioner. Accepting the said plea the revision petition was dismissed but amount of maintenance was reduced from Rs.300/- per month to Rs.250/- per month.