ABDUL RAHMAN Vs. AKTHARI BEGUM

JUDGEMENT

(1.) PETITIONER Abdul Rahman admittedly bad married first respondent Akthari Begum and had also fathered second respondent minor Rahmnia Parveen out of the said marriage. First respondent preferred an application under Section 125, Cr.P.C. in M.C. No. 21 of 1985 before the Judicial Magistrate No. 1, Tiruchirapalli, claiming monthly maintenance for herself and her minor daughter from the petitioner alleging that they had been wilfully neglected, it was also her case that the contention of the husband that he had pronounced 'talaq' on 10 -8 -85, was erroneous. After holding an enquiry in which the petitioner did not choose to get into the witness -box or adduce any evidence on his behalf, Enquiring Magistrate found that the first respondent was entitled to a monthly maintenance of Rs. 400/ - only for the period 23 -9 -1985 to 12 -9 -1986. Enquiring Magistrate accepted pronouncement of 'talaq' was pleaded by the petitioner. The date of 'talaq' was found as 13 -6 -1986 by the Enquiring Magistrate. Maintenance was awarded on the basis of three months iddat period as well as the liability of the petitioner to maintain his wife from the date of petition till the date of pronouncement of 'talaq'. 13 -6 -1986 is the date on which petitioner has filed his counter -statement before the Enquiring Magistrate. Monthly maintenance of Rs. 300/ - reckoned from date of petition, was ordered in favour of R -2. Aggrieved first respondent challenged the correctness of verdict of the Enquiring Magistrate, in Criminal Revision Case No. 68/1989 before the Principal Sessions Judge, Tiruchirapalli, first Revisional Court held, that pronouncement of 'talaq' by the petitioner in a manner known to law, had not been established, especially when the first respondent had not accepted pronouncement of such "talaq' leading to her divorce. Very relevantly, the first Revisional Court observed that the petitioner had not even chosen to get into the witness -box to speak about his having divorced the first respondent. First Revisional Court confirmed the order of maintenance in favour of the second respondent, while directing the petitioner to pay a monthly maintenance of Rs. 400/ - to his wife on and from 23 -9 -1985. Petitioner, aggrieved at the decision of the first Revisional Court, has chosen to prefer this criminal revision case.

(2.) MR . N. Sankaravadivel, petitioner's Counsel contended, that irrespective of 'talaq' pronounced on 10 -8 -1985 being valid or not, the first Revisional Court must have given weightage to the 'talaq' pronounced in the counter -statement by the petitioner on 13 -6 -1986 and, on that sole ground, it should have negatived the maintenance claim of the first respondent except the iddat period commencing from 13 -6 -1986. He then contended, that under Section 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, every application by a divorced woman under Section 125 or 127 of the Code of Criminal Procedure pending before a Magistrate, at a commencement of the said Act, shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the Act will have to be disposed of in accordance with the provisions of the Act. That not having been done, the entire procedure is open to challenge.

(3.) ON these two grounds, I have heard Mr. K.N. Basha, learned Counsel appearing on behalf of respondents.