RESHMA UNNUS SHAIKH Vs. UNNUS AYUB SHAIKH

JUDGEMENT

(1.) RULE . Rule made returnable forthwith. As both sides agreed, the matter is heard for final disposal.

(2.) THE proceeding is filed to challenge the judgment and order of Criminal Revision No. 18/2009, which was pending in the Court of Additional Sessions Judge, Sangamner, District Ahmednagar. The revision was filed by present respondent/husband against the judgment and order of proceeding filed under section 125 of Criminal Procedure Code by the present applicant. The Judicial Magistrate, First Class had granted the maintenance at the rate of Rs. 800/ - per month in favour of the present applicant. This decision is set aside by the Sessions Court. This Court was required to appoint a counsel for respondent No. 1 as he did not turn up after service of notice on him.

(3.) THE learned counsel for wife placed reliance on some reported cases. In the case reported as (2002) 7 Supreme Court Cases 518 : [2003 ALL MR (Cri) 344 (S.C.)] [Shamim Ara Vs. State of U.P. and Anr.], the Apex Court has laid down that the pronouncement of the Talaq has to be proved by giving evidence in the Court. Mere taking a plea in a proceeding filed for maintenance is not sufficient. It is laid down that such declaration is not sufficient to hold that Talaq was given by the husband. In the case reported as AIR 2010 SUPREME COURT 305 : [2010 ALL MR (Cri) 278 (S.C.)] [Shabana Bano Vs. Imran Khan], the Apex Court has laid down that even after giving Talaq, the husband is expected to make provision for maintenance of the wife and this provision needs to be made during Iddat period. It is laid down that the amount of maintenance to be awarded in such a case cannot be restricted for Iddat period and the maintenance to be fixed during Iddat period should be such that it is sufficient for livelihood of the wife even after the Iddat period or for the period till the applicant does not remarry. The interpretation of sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is made in the aforesaid case and also in the case reported as AIR 2001 SUPREME COURT 3958 (1) : [2001(4) ALL MR 829 (S.C.)] [Danial Latifi and another Vs. Union of India]. Full Bench of this Court has also given direction to treat the proceeding filed under section 125 of Cr.P.C. as one under the aforesaid Act if the husband shows that he has given Talaq to the applicant. This position of law is not at all considered by the learned Additional Sessions Judge. So, this Court holds that judgment and order delivered by learned Sessions Judge needs to be set aside.