ASNAT ALI SIDDIQUI Vs. STATE OF U P

JUDGEMENT

(1.) N. B. Astliana, J. Sm. Naaz A. Siddiqui and hot minor son Syed Ahsan Ali, who are admittedly the legally wedded wife and son of Asnat Ali, moved an application for interim maintenance allowance. Asnat Alt contested the application on various grounds and alleged that he has divorced Smt. Naaz A. Siddiqui and therefore under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act') the application under Sec tion 125, Crpc was not maintainable. This plea found favour with IIIrd Addl. CJM Shahjahanpur who was seized with the case with the result that the application for interim maintenance allowance was dismissed on 3-5-1991.

(2.) THE trial court, however, failed to consider that the application in so far as Syed Ahsan Ali was concerned was maintainable as the provisions of the Act did not apply to him.

(3.) UNDISPUTEDLY the provisions of the Act are not applicable to Syed Ahsan Ali. Smt. Naaz A. Siddiqui denied that she was divorced by Asnat Ali. No evidence was adduced in the case to enable the Court to come to the conclusion as to whether she was a divorced woman. The trial court should have first come to the conclusion whether Smt. Naaz A. Siddiqui has been divorced by her husband and if so whether after being divorced she was entitled to claim maintenance allowance under Section 125, Crpc. It appears that the Magistrate without applying his mind to the pleadings of the parties and in total ignorance of the provisions of the Act dismissed the application of even the legitimate minor son of Asnat Ali. The revisional court rightly allowed the revision and remanded the case for re-trial. No useful purpose would have been served by setting aside the ex pane judgment even if it is assumed that the Sessions Judge had such power.