MEHBUBABI NASIR SHAIKH Vs. NASIR FARID SHAIKH

JUDGEMENT

(1.) THE above petition, under Article 227 of the Constitution of India, is filed by Smt. Mehbubabi, wife of respondent No. 1, who had filed an application, being Miscellaneous Application No. 44 of 1974, in the Court of the Judicial Magistrate, First Class, Sangli, under Section 125 of the Code of Criminal Procedure, 1978, in which she had claimed maintenance from her husband, respondent No. 1, Nasir Farid Shaikh, a business man of Sangli at the rate of Rs. 450 per month as maintenance for herself and her two title children born out of respondent No. 1.

(2.) THE application was made by her on December 81, 1974, under Section 125 of the new Criminal Procedure Code, which defines 'wife' as including a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried and does not exclude Muslim wives notwithstanding that under Muslim law, a divorced wife would be entitled to maintenance only upto the period of Iddat.

(3.) THE only evidence led by the parties consisted of the testimony on oath of the wife herself and of the husband and of one witness on behalf of the husband, Nazir Papa Mulani, who claimed to have seen the petitioner going along with one Sudam to a picture house known as Sadashiv Theatre. The wife said that she was treated by the husband in such a way that she was compelled to run away with her two small daughters. But both the Courts ignored the revolutionary provisions in Section 125, which entitle even a divorced wife till she has remarried to claim maintenance from her quondam husband unless the husband is able to establish that the wife is living in adultery or is living separate from her husband without any sufficient reason or they are living separately by mutual consent, as laid down in Section 125(4) of the Criminal Procedure Code.