SAJANBEE KHAJAMIYA SHAIKH Vs. KHAJAMIYA MUSASAHEB SHAIKH

JUDGEMENT

(1.) The petitioner filed Application under section 125 of the Code of Criminal Procedure, 1973 (in short "cr. P. C. ") in the Court of learned Judicial Magistrate, First Class, Paranda, for separate maintenance. The same was allowed awarding maintenance at the rate of Rs. 200/- per month.

(2.) The respondent herein, filed Revision. Learned Addl. Sessions Judge, osmanabad found that Talaq was communicated by notice, therefore, petitioner is entitled to maintenance of Iddat period only and the amount of mehr. In this view of the matter, Revision was partly allowed. This order dated 21-2-1998 has been impugned in the present Revision.

(3.) The short point which arises for consideration is, whether petitioner is entitled to maintenance even after communication of divorce. Learned counsel for petitioner contends that divorce has not been duly proved, therefore, petitioner is entitled to maintenance under section 125 of the Criminal Procedure code. It is not in dispute that the factum of divorce was communicated to the petitioner by notice dated 6th February, 1992 (Exhs. 15 and 16). Therefore, the learned Addl. Sessions Judge has come to the conclusion that, at the most, divorce can be taken to be effective from this date of the notice i. e. from 6-2-1992. Pursuing this thread, learned Addl. Sessions Judge came to the conclusion that petitioner is entitled only to maintenance for the Iddat period i. e. for three months, and Mehr. He, therefore, directed payment of Rs. 1,101 along with cost of Rs. 600/ -. This reasoning of the learned Addl. Sessions Judge is not proper. Whenever divorce is given during pendency of the petition and the payment of maintenance for iddat is not made, the petitioner is entitled to maintenance till the iddat period, in a proceeding instituted under section 125 of the Criminal procedure Code. This point is no longer res integra. The Division Bench of this court has set at rest this controversy in a reference made, in the matter of Naseem khatoon Begum vs. Sk. Yaseer reported in 2002 (2) Mh. L. J. 115. While concluding the controversy it is observed at the end of para No. 6 of the report that with respect to seventh category, so far as Muslim woman concerned, a neglected wife can claim maintenance as per the provisions of section 125 of the code of Criminal Procedure; but, if she happens to be divorced during the pendency of such proceedings, then her right of maintenance will be limited till the period of Iddat expires; and for the post-Iddat period, she will have to proceed as per the 1986 Act.