SHAIKH MOBIN SHAIKH CHAND Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This petition is by the husband of the second respondent against the order of the Judicial Magistrate First Class, Pusad, dated 31-8-1994 in Misc. Cri. Case No. 89 of 1993 and confirmed by the Addl. Sessions Judge, Pusad, on 14-7-1995 in Criminal Revision No. 52 of 1994. The petition is purportedly filed under Article 227 of the Constitution of India read with section 482 Code of Criminal Procedure in view of the decision of Supreme Court in (Deepti alias Arati Rai v. Akhil Rai and others)1 reported in J.T. 1995 (7) S.C. 175, the learned Counsel Mr. Haq submitted that he would be satisfied to sustain his case Article 227 of the Constitution of India.

(2.) The 2nd respondent instituted a proceeding under section 125 of the Code of Criminal Procedure, 1973 (for short the Code) for maintenance against the writ petition. The learned Judicial Magistrate First Class, Pusad, allowed the petition directing the writ petitioner to pay an amount of Rs. 150/- per month to the 2nd respondent. He also allowed costs of Rs. 150 in favour of the 2nd respondent As indicated above, the writ petitioner challenged the said order unsuccessfully before the learned Addl. Sessions Judge, Pusad, who confirmed the order of the learned Magistrate by his order dated 14-7-1995.

(3.) The two main points urged by the learned Counsel, Mr. Haq. on behalf of the petitioner, are that as the writ petitioner has divorced the 2nd respondent, her right, if any, is only under section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Act). The point urged by the learned Counsel is that the very fact that the marriage was dissolved by pronouncement of talaq is admitted in the petition by the wife and in view of the fact that section 3 of the Act has not got overriding effect, section of 125 of the Code will have no application. This is particularly so when neither the husband nor the wife invoked the benefit of section 5 of the Act. In short, according to the learned Counsel Mr. Haq, the petition under section 125 of the Code is not maintainable and both the Magistrate and the Addl. Sessions Judge have committed an illegality by allowing the said petition. The said orders are amenable to be quashed by the exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution. On the other hand, the learned Counsel for respondent No. 2, Mr. Khubalkar maintained that there is no valid divorce as is understood in Mohemmaden Law and consequently the 2nd respondent continues to be the legally wedded wife of the petitioner. Therefore, the claim of the petition that the said orders are liable to be quashed under Article 227 of the Constitution is not sustainable.