GAUHAR HUSSAIN Vs. MUMTAZ ARA

JUDGEMENT

(1.) A petition under Sec. 125 Crimial P.C. was filed by the respondents Mumtaj Ara and Tania Gauhar, daughter of the petitioner and respondent. Vide order dated 27th Oct., 2007, learned Metropolitan Magistrate considering the rival contentions of the parties and the legal position on the issue directed the petitioner to pay interim maintenance of Rs.2500.00 per month to each of the two respondents from the date of filing of the petition till its disposal. Learned Trial Court came to the conclusion as under-

(2.) The petitioner thereafter filed an application under Sec. 127 Crimial P.C. contending primarily that the finding of the learned Trial Court on the form of divorce between the parties was misreading of the Muslim Personal Law and the divorce between the parties was valid in the eyes of law. Vide order dated 19th Nov., 2008, learned Metropolitan Magistrate directed him to deposit half the arrears of interim maintenance before his application under Sec. 127 Crimial P.C. was heard. Challenging the said order, the petitioner filed a revision petition which was dismissed vide impugned order dated 23rd March, 2009. The application filed by the petitioner under Sec. 127 Crimial P.C. was dismissed as not maintainable by the learned Metropolitan Magistrate on 22nd July, 2009 noting that the application under Sec. 127 Crimial P.C. was maintainable only if there are "change of circumstances" after passing of the judgment/interim order under Sec. 125 Crimial P.C. there being no change in the circumstances and the only ground mentioned that the Court was misled by the form of divorce and requisites of valid divorce, the same was not the scope of consideration under Sec. 127 Crimial P.C. The order dated 22nd July, 2009 passed in the application under Sec. 127 Crimial P.C. is also impugned in the present petition. Thus, the two orders impugned before this Court are order dated 23rd March, 2009 passed by learned Additional Sessions Judge dismissing the revision petition challenging the order dated 19th Nov., 2008 directing the petitioner to pay half the amount of the arrears of maintenance before his application under Sec. 127 Crimial P.C. was heard and the order dated 22nd July, 2009 passed by the learned Metropolitan Magistrate dismissing the application under Sec. 127 Crimial P.C. as not maintainable.

(3.) The order dated 27th Oct., 2007 granting interim maintenance to the respondent by the learned Metropolitan Magistrate has not been challenged by the petitioner before any higher forum and thus the said interim order has attained finality. During the pendency of the revision petition before the learned Additional Sessions Judge, pre-deposit of half of the amount of arrears of maintenance had already been made, hence challenge to the order dated 23rd March, 2009 passed by the learned Additional Sessions Judge has become infructuous. Thus, the only issue required to be considered by this Court was that whether the application under Sec. 127 Crimial P.C. was maintainable before the learned Metropolitan Magistrate or not i.e. whether there was any change of circumstances warranting entertainment of the application under Sec. 127 Cr.P.C.