SHAHANAZBEGUM KADARBASHA SHAIKH Vs. KADARBASHA USMAN SHAIKH

JUDGEMENT

(1.) THIS writ petition arises out of the maintenance proceedings under Chapter IX of the Code of Criminal Procedure, 1973 on the file of the Judicial Magistrate First Class, Solapur. Petitioner No. 2 is the son of the petitioner No. 1 and respondent No. 1. Petitioner No. 1 and respondent No. 1 were married on 29-5-1997. The petition prays to set aside the order passed by the Assistant Sessions Judge, Solapur on 4-4-1994 in Criminal Revision No. 137 of 1992 and award maintenance in favour of the wife.

(2.) THE admitted facts in this contest for the maintenance are as follows :-

(3.) ON 3-11-1990, husband filed Criminal Misc. Application No. 242 of 1990 under section 127 of the Criminal Procedure Code, 1973, (for easy reference, hereinafter, referred to as "the said Code" ). He claimed that he had divorced wife on 5-2-1990. The talaknama was reduced into writing. Therefore, after commencement of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for the sake of brevity, hereinafter, referred to as the "act of 1986") he was not liable to pay the maintenance to the wife and the son. Therefore, he had prayed for cancellation of the order of maintenance passed in favour of the wife and the child on 25-9-1989 upon conclusion of Criminal Misc. Application No. 15 of 1988. This application was decided by the Judicial Magistrate, First Class, Solapur on 2-5-1992, who was pleased to quash the maintenance order in toto. The wife had opposed the petition, inter alia, contending that talak was not pronounced thrice and hence according to Muslim Law and custom, the same was not legal and valid. It was also not communicated to wife and therefore, the talak being bad in law, the husband; it was claimed; cannot be exonerated from his liability to pay the maintenance as ordered in Criminal Misc. Application No. 15 of 1988. The learned Magistrate observed that in view of the provisions of Mohammedan Law, talak pronounced in absence of wife is also valid though not communicated to her. However, for the purposes of dower, the communication was necessary failing which, she was entitled to alimony till she was informed of the divorce. Since the talaknama was reduced into writing, which was produced before the Magistrate at Exhibit 21, the learned Magistrate held that the husband had divorced the wife, but she would be entitled to maintenance during the period of Idat, but if the talak was not communicated she was entitled to maintenance even beyond the period of Idat till she was informed of divorce. Relying upon the judicial pronouncement of this High Court reported at 1989 Cri. L. J. 133 (Maheboob Khan v. Parveen Bano), the learned Magistrate observed that neither the order passed under section 125 of the Code of Criminal Procedure nor the liability already incurred earlier to the Act of 1986 was saved. Inevitable consequence, therefore, was that the rights under section 125 (1) of the Code as also section 125 (3) were lost and therefore, there was no question of enforcing the order of maintenance. While concluding the judgment, the learned Magistrate also observed that it was open for the wife and the child to apply under section 3 (1) of the Act of 1986 for reasonable and fair provisions and maintenance to be made and paid to the wife within the Idat period, so also Meher, etc. Thus, the learned Magistrate totally quashed and set aside the order of maintenance in favour of both i. e. wife as well as the child. Present petitioners preferred Criminal Revision No. 137 of 1992 before the Sessions Judge, Solapur, against this decision of the Magistrate. By his order dated 4-4-1994, Additional Sessions Judge, Solapur was pleased to restore the maintenance allowance to the child at the rate of Rs. 150/- per month, although restricting the same till the child attains the majority. As far as wife is concerned, the husband was ordered to pay the maintenance at the rate of Rs. 300. /- per month upto 1-2-1991 and further three months, treating the said period to be Idat period. Taking cognizance of the fact that copy of talaknama produced at Exhibit 21 before the Magistrate was sent to wife by registered post A. D. but the same was returned unserved, the learned Sessions Judge observed that the wife learnt about talak on 1-2-1991, the day on which she appeared before the Magistrate and applied for time to file say through her Advocate. In view of these observations, the learned Sessions Judge set aside the order of Magistrate totally cancelling the maintenance and restored the same to limited extent as described above.