SHAIKH HIDYAT SHAIKHMOGIA Vs. SHAHENAZ ALIAS LUBAN PARVIN

JUDGEMENT

(1.) On a short premise this matter writ have to back to the court of first Instance for application of its mind afresh for an obvious deficiency cbmmi- ed by the trial Cpurt as we;!' as by the Sessions Court. This proceeding relates to to the matrimonial discord and tf e wife filed and application under .section 125 of the Code of Criminal Procedure against the husband in the Court of, the judicial Magfetrate. First Class, Nasjk.'.belr'sJ Crim- inal Misc. Application No. 45 of 1977. The wife therein contended that she was, married to the present petitioner on 10 th July 1977 as per Mahomedan rites and after that she cohabited with him at Vikhroli for about two months. She was then stated that on account of the excessive indulgence in sexual intercourse by the husband, she felt ill and also became a victim of venereal desease. She therefore, went to her mothers, house for treatment in June, 1977. Thereafter, the husband did not bother to take her back to his bouse inspite of repeated requests from her side nor did he even care to inqiure about her health. She also contended that the the husband's relative-, told her that the husband wanted to remarry a second wife and had no desire to maintain her. Ultimately, she issued a notice to the husband on 7th July 1977 tp take her back, but this was not responded to by the husband nor did he take her back and ultimately she had filed the said application. She contended that she was entitled to an amount of Rs. 200. per month as maintenance having regard to the income of the husband.

(2.) The husband resisted the said application on various grounds. He contended that he had given a valid divorce or Talaq as the parties are governed by the Muslim Law; that he bad paid the Meher amount and in addition he also paid the amount for the Iddat period Comprising of three months and, therefore under Section 127 (i) (b) of the Code of the Criminal Procedure the wife is not entitled to maintenace. He also ccnttnced that he was ready and witling to take her back and he has denied the allegations made by the wife. The husband also made a grievance that in spite of his request he was not permitted time to file his written statement on the 22nd of December 1977, when the matter was called out.

(3.) The learned Magistrate upheld the first contention of the husband that in view of the Tafaq coupled with the payments having been made by the husband as regards the Meher amount and the amount for the Jddat period, the wife was not entitled to any maintenance as such under the relevant provisions of the Code The learned Magistrate also held that the wife has not established that she was able to maintain herself and as such she cannot be said to be a destitute. In keeping with these findings, the learned Magistrate rejected the wife's application in its entirely by his order dated 7th February 1978.