NOOR JAHAN Vs. NIZAM S O REHMATULLAH

JUDGEMENT

(1.) This application under Section 482, Cr. P.C.has been filed with a prayer to set aside the proceedings of Criminal Case No. 1086 of 1983, Nizam v. Noor Jahan pending in the Court of Mahanagar Magistrate, Corporation, Kanpur.

(2.) The brief facts of the case giving rise to the present petition are that the applicant, namely, Smt. Noor Jahan was married to one Nazamul Hasan in the year 1970 according to Muslim rites. Out of that wedlock a daughter was born. Thereafter when she was living separately from her husband she filed an application under Section 125, Cr. P.C.for maintenance, which was allowed vide order dated 29-2-1977 by the Additional Munsif Magistrate, Saharanpur, whereby the husband Nazmul Hasan was directed to pay the maintenance allowance @ Rs. 60.00 per month to the wife i.e. the applicant and Rs. 40.00 per month to the infant daughter with effect from 1/10/1978. Here it is necessary to indicate that she initiated proceedings under Section 125, Cr. P.C.on 26-6-1975 for claiming Rs. 400.00 per month as maintenance allowance from her husband Nazmul Hasan. The stand of the husband Nazmul Hasan was that the petitioner's father being a greedy type of person wanted the Nazmul Hasan to occasionally help him with money and on his refusal the father of the petitioner instigated the petitioner to leave her husband and she herself left the husband's house in his absence along with clothes and ornaments and inspite of repeated attempts the petitioner did not accompany the defendant to his house and she ultimately unlawfully remarried Noor Mohammad son of Kurra resident of Topia Saraj, Saharanpur on 7/11/1971 and was living with him as a wife. The learned Magistrate on appreciation of evidence repelled the contentions of Nazmul Hasan that the petitioner remarried Noor Mohammad and that her daughter was from the alleged second wedlock. It was further held that Nazmul Hasan ill-treated her and turned her out of his house while she was in family way and she was unable to maintain herself and her daughter and that the defendant having made scandalous and false allegations against the petitioner of her alleged remarriage could not be believed to be ready and willing to maintain her. Consequently, the petitioner and her daughter were held entitled to claim maintenance allowance from the defendant and an amount of Rs. 100.00 per month was fixed with effect from 6/10/1978.

(3.) Against the said order of the learned Magistrate, the husband namely Nazmul Hasan filed Criminal Revision No. 233 of 1988 and the present petitioner also filed a criminal revision against the same order being Criminal Revision No. 206 of 1978. The learned IIIrd Additional Sessions Judge decided both the revisions by a common judgment and order dated 30/04/1979 and dismissed the husband's revision and allowed the revision of the present applicant modifying the order that she will get maintenance allowance @ Rs. 120.00 per month for herself and Rs. 60.00 per month for her daughter Noor Begum from Nazmul Hasan with effect from 16-6-1975. The learned Additional Sessions Judge has indicated in his order that the lower Court has recorded a definite finding that the petitioner' s daughter was born out of her wedlock with Nazmul Hasan and that she was treated with cruelty and turned out of the house while she was in a family way and there was good reliable evidence on record to support that finding. The finding that the husband not only indulged in physical cruelty but also proved himself to be thoroughly unscrupulous in making scandalous allegations of petitioner's remarriage with an elderly person and that the daughter was born when the petitioner was living in sin certainly resulted in too much mental torture to the petitioner.