SAHIRA BANU Vs. SHAIK BASHEER AHMAD

JUDGEMENT

(1.) This Revision arises out of the proceedings initiated by the petitioner under Section 125 Cr.P.C. for maintenance against her husband i.e., the 1st respondent herein. On the ground of neglect, the petitioner instituted M.C.No. 4/91 against the 1st respondent for maintenance and at an earlier point of time, the 1st respondent tried to pre-empt the said proceedings by filing quash proceedings before this court in Crl.P.No. 1333/91, but the same was dismissed by order dated 30-1-1992 on the ground that the allegations made by him that the petitioner was divorced have got to be enquired into and that the maintenance proceedings cannot be interdicted So saying, the petition to quash the proceeding was dismissed. In consequence of the same, enquiry had to be held by the court of the Magistrate, but the 1st respondent though had filed counter, had been protracting the litigation. Again, he had filed a Criminal Miscellaneous Petition No. 16/93 before the court of Magistrate invoking the provisions contained under Section 245(1) Cr.P.C. to drop the proceedings on the ground that the petitioner was already divorced and that she is a divorced woman as defined under Section 2 (a) of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act). The petitioner had contested the said application by filling a counter stating that Section 245 (1) Cr.P.C. is not applicable and that enquiry has to be conducted as contemplated under the provisions contained under Section 125 Cr.P.C. and other related provisions and that Criminal Miscellaneous Petition should be dismissed

(2.) By order dated 19-1-1993, the Court of I Additional District Munisif, Cuddapah had acceded to the contention of the 1st respondent and held that the said court had no jurisdiction to entertain the maintenance proceedings initiated by the petitioner on the ground that she was a divorced woman under the above Act. Hence, this Revision.

(3.) The learned counsel for the petitioner submits that the miscellaneous petition before the lower court was not maintainable and that the lower court was bound to enquire into the matter and only after fulfledged enquiry, matter could be decided. On the other hand, the learned counsel for the 1 st respondent submits that the order passed by the Magistrate is in accordance with law and that after scanning through the material placed by the 1st respondent, it was properly held that the petitioner was a divorced woman and that Section 125 Cr.P.C. proceedings were not maintainable.