DILSHAD BEGAUM AHMADKHAN PATHAN Vs. AHMADKHAN HANIFKHAN PATHAN

JUDGEMENT

(1.) THE petitioner-wife is aggrieved by the common judgment and Order dated 26/9/1997 passed by the learned Additional Sessions Judge at Baramati, whereby the Revision Applications i. e. Revision Application nos. 77 and 78 filed by the husband came to be decided.

(2.) THE petitioner was married to the respondent no. 1 on 29/5/1981 and she was allegedly driven out of the house by the respondent no. 1-husband on 14/6/1989. She had filed Misc. Criminal Application No. 558 of 1990 under Section 125 of Cr. P. C. claiming maintenance and the same was allowed by the learned judicial Magistrate, First Class at Baramati on 31/12/1991 fixing the maintenance amount at Rs. 200/-each for the petitioner-wife and her daughter. The said order came to be challenged by the respondent no. 1-husband in a Revision Petition, which came to be dismissed on 6/12/1993. The husband filed Misc. Criminal Application No. 84 of 1995 under Section 127 of Cr. P. C. for cancellation of the order of maintenance granted in MCA No. 558 of 1990. At the same time, the petitioner-wife also filed MCA No. 364 of 1995 for enhancement of the maintenance amount. Both these applications came to be decided by the learned JMFC on 19/9/1996, but by separate orders. MCA No. 84 of 1995 filed by the husband came to be dismissed, whereas MCA No. 364 of 1995 filed by the wife came to be allowed and the maintenance amount came to be revised to Rs. 400/- p. m. for each of the applicants i. e. wife and her daughter. Both these orders came to be challenged by the respondent no. 1-husband in Criminal Revision Application Nos. 77 and 78 of 1996 respectively. By the impugned order, the learned Additional Sessions Judge, Baramati was pleased to allow the Criminal Revision Application no. 78 of 1996 and Criminal Revision Application No. 77 of 1996 was partly allowed by setting aside the order of maintenance passed in MCA Nos. 558 of 1990 and 364 of 1995 in favour of the wife, whereas the enhancement of maintenance amount fixed at Rs. 400/- p. m. in favour of the minor daughter Rahimat came to be confirmed.

(3.) THE learned JMFC in his order dated 19/9/1996 while rejecting the MCA No. 84 of 1995 held that the factum of Talaq alleged to have been pronounced by the husband on 20/5/1994 in a Masjid could not be proved by him and consequently the wife was entitled for revision of the maintenance amount. The learned additional Sessions Judge did not agree with the findings of the JMFC that the husband could not prove the factum of Talaa on reassessment of evidence adduced by both the parties (documentary as well as oral ). The learned Additional Sessions Judge held that the factum of Talaq was proved and, therefore, the wife was not entitled for the benefit of maintenance under Section 125 of Cr. P. C. and her rights were governed under the Muslim Women (Protection of Rights on Divorce) Act, 1986. The additional Sessions Judge accepted the contentions of the husband that he had pronounced Talaq on 20/5/1994 in the presence of the witnesses in a Masjid and this was duly proved by his subsequent actions as well.