ABDUL SALIM Vs. NAJIMA BEGUM

JUDGEMENT

(1.) THIS petition is under Section 482, Cr. P. C. filed by the husband praying that the entire proceedings under Section 125, Cr. P. C. be quashed and the petitioner may be discharged from paying the maintenance allowance to opposite party No. 1, i. e. Smt. Najima Begum. The application under Section 125, Cr. P. C. was filed by Smt. Najima fiegum on 8-6-76 praying that Rs. 200/- be allowed to her as maintenance as her husband had neglected to maintain her and had married again. The learned Magistrate after recording the evidence of both the parties passed an order dated 18-7-78 awarding Rs. ISO/- as maintenance to the wife. He recorded a finding that the applicant Smt. Najima Begum wanted to study. Her father too was hot alive. She herself was not in a position to maintain herself and that she observes Parda according to Muslim custom. Abdul Salim went up in revision (Cr. Revision No. 77 of 1978)' which was decided by 1st Addl. Sessions Judge on 29-9-1978. The learned Sessions Judge reproduced the finding of the learned Magistrate that she was unable to maintain herself and that she could not be forced to live with her husband -as her husband lives with Smt. Akleela. It further observed that Smt, Najima Begum has now become dependent on her widowed mother. She wants to study and maintain herself, Her widowed mother is doing tution and tailoring to support her family. After considering the status of the parties and the circumstances of the case the learned Sessions Judge reduced the amount of maintenance from Rs, 150/- per month to Rs. 100/- per month.

(2.) THIS petition has been filed mainly on the ground that there was no averment in the application under Section 125, Cr. P. C. that Smt. Najima Begum was unable to maintain herself. It is also stated that even in her statement she did not take any such plea. It was then alleged that now she has got her own income from tution and, as such, she is able to maintain herself. It was stated that in the absence of essential ingredients under Section 125, Cr. P. C. the orders of both the Courts below are liable to be quashed.

(3.) THIS petition was contested on the ground that no such ground was taken in the memo of revision. Certified copy of the grounds of revision is Annexure-3 of the counter-affidavit. It was also stated in the counter-affidavit that the findings recorded by the lower Court that she was unable to maintain herself was based upon the evidence on record. It was also stated that it was not alleged either in the written statement or even in the statement of Salim that the petitioner had income of her own. It was thus entirely a new plea which was taken in the petition for the first time. The learned Counsel for the respondent has also drawn my attention to the original notice which was sent to Smt. Sultani, mother of Smt. Najima Begum and Smt, Najima Begum as well. In this notice it was stated on behalf of Abdul Salim himself that after the death of Chand Khan, husband of Smt. Sultani, Smt. Sultani was left with no means of livelihood. No doubt, it was alleged in that notice that Smt. Najima Begum had taken ornaments etc. worth Rs. 2,000/- which both of them wanted to misappropriate.