MASBULLAH Vs. STATE OF U P

JUDGEMENT

(1.) In this revision judgment and order dated 4.7.1994 passed by the learned Vth Additional Sessions Judge, Before in Criminal Revision No. 86 of 1990 has been challenged.

(2.) Learned Counsel has submitted that even if the revisionist divorced the opposite party No.2 his wife, learned Sessions Judge held that seeking maintenance under Section 125, Cr.P.C. was maintainable. He has submitted that the said plea of divorce was taken by the revisionist at the initial stage before the learned Magistrate, who held that the case was not maintainable under Section 125, Cr. P.C. since the complainant is a divorced lady and she is entitled to get relief only under Sections 3 and 4 of Muslim Women (Protection of Rights of Divorce) Act, 1986. He has submitted that the view taken by the learned Sessions Judge that the fact of divorce will have to be proved by the revisionist and sent the matter on remand is not based on proper appreciation of the facts and points of law involved in this case. He has submitted further that the divorce being an admitted fact need not be proved. He has referred petition-complaint of the respondent filed before the learned Magistrate in this respect. In Para 15 of the complaint the opposite party NO.2 claimed Mehar of Rs.l0001/- which was not paid to her even after the demand. So according to the learned Advocate when she claimed Mehar it is understood that the divorce was effected prior to the filing of the petition of complaint. I do not agree with the view of the learned Advocate. Any amount of Mehar can be fixed at the time of manage and it is due at any point of time and it terminates either on death or on divorce. If there is no fixation of amount what part of Mehar is promptT and what part of it is deferredT the jurists have unanimously gave opinion that 50% of it should be considered as prompt and 50% of it as deferred dower. With regard to the demand of prompt dower it is settled law, that it can be demanded even on the date of marriage and the wife can refuse consummation of marriage for non-payment of dower if demanded. Deferred dower is to be paid on the termination of the marriage by divorce or from the shares of the husband as a first charge on his death. So the wife is entitled to claim prompt dower at any point of time before termination of the marriage. So the claim for dower in the petition-complaint does not pre-suppose the fact of divorce. In Para 2 of the affidavit the revisionist has admitted that opposite party No.2 claimed maintenance and Mehar.

(3.) In paragraph 3 of the affidavit he has mentioned that the parties Thave taken divorce between them and Mehar has been paid. That fact is contradictory to the claim of the opposite party No.2 in petition of complaint claiming maintenance under Section 125, Cr.P.C. I do not find that the opposite party No.2 has admitted the fact of divorce anywhere during the proceedings. So I am in agreement with the view taken by the learned Sessions Judge that the plea of divorce taken by the revisionist should be proved by him after adducing evidence in this respect. Since there is no merit in the revision the same is dismissed. Petition dismissed.