IBRAHIM ISMAIL SHIKH Vs. ALISHAN IBRAHIM SHAIKH

JUDGEMENT

(1.) The proceeding is filed to challenge the judgment and order of JMFC, Pathardi, Dist, Ahmednagar delivered in Criminal Revision No. 86/94, the judgment and order of Criminal Revision No. 3/99 delivered by Sessions Court, Ahmednagar and also the judgment and order of Criminal Application No. 2553/01 delivered by JMFC, Pathardi. The first proceeding was filed by respondents u/s. 125 of Cr.P.C. and the JMFC had allowed the claim of respondent No. 2 and part of the claim of respondent No. 1. As the maintenance in respect of period after Iddat period was not granted, Criminal Revision No. 3/99 was filed and in that proceeding, Sessions Court allowed the claim of maintenance for the period starting after Iddat period. The revision was decided on 28/6/2000. The last application was filed before JMFC u/s. 127 of Cr.P.C. and the JMFC enhanced the maintenance from Rs. 200/- to Rs. 400/- in respect of respondent No. 1 and from Rs. 250/- to Rs. 400/- in favour of respondent No. 2. This decision was given on 28/8/2002. The present proceeding came to be filed on 18/7/2005. Instead of filing revision against the decision of Miscellaneous Criminal Application No. 253/01 in Sessions Court, the present proceeding is directly filed against the said decision. Both sides are heard. Only one point was argued for petitioner. It was submitted that Talaq was given by petitioner to respondent No. 1 during pendency of maintenance proceeding and so, the maintenance proceeding could not have been decided u/s. 125 of Cr.P.C. It was submitted that the revisional Court has committed error in granting maintenance in respect of period starting after Iddat period when there is no such provision in Muslim Women [Protection and Rights of Divorce] Act, 1986. The other side relied on some reported cases. The learned counsel for petitioner relied on the case [Danial Latifi and another V/s Union of India, 2001 7 SCC 740].

(2.) The record shows that when the proceeding was filed u/s. 125 of Cr.P.C., the marriage tie was in existence. On 13/7/1995, the husband allegedly gave Talaq and then informed to the Court about Talaq. The proceeding was continued in the same form but the JMFC granted maintenance u/s. 125 of Cr.P.C. from the date of the application to the date of alleged Talaq. The maintenance at the rate of Rs. 200/- p.m. was granted in respect of Iddat period starting from 19/7/95. The Sessions Court has granted maintenance at the same rate for further period also. There is no dispute over the quantum which was a meager amount and meager enhancement came to be granted in the year 2002. Further this decision came to be challenged in the year 2005 and no revision was filed against judgment and order of proceeding filed u/s. 127 of Cr.P.C.

(3.) In the case [Dagdu Chotu Pathan V/s Rahimbi Dagdu Pathan and others, 2002 ALLMR(Cri) 1230 ], Full Bench of this Court has considered the plea of divorce and effective Talaq. It is laid down that there must be reasonable cause and Talaq must be preceded by attempts of reconciliation between husband and wife by arbitrators. It is observed that not only the factum of Talaq but the conditions preceding to the stage of giving Talaq are also required to be proved by the husband in proceeding pending before the Court. The detail procedure under Personal Law is discussed by Full Bench. The record shows that such procedure was not followed. It can be said that the Courts could have easily ignored the defence of the husband that he had given Talaq to present respondent No. 1.