P KAREEM SAHEB Vs. RAHEEMUNNISA

JUDGEMENT

(1.) This revision is directed against the order dated 3-11-1995 passed by the District and Sessions Judge, Chittoor in Criminal Revision Petition No.69/93 reversing the order dated 11-8-1993 passed in Crl.M.P.No.347/90 in M.C.No.4/84 on the file of the J.F.C.M., Palamaner.

(2.) The facts giving rise for this criminal revision case are as follows : The petitioner herein is the husband of the respondent Rahim Unnisa. For the sake of convenience, they are being referred as husband and wife in this order. They have got children out of the wed-lock. Due to the estrangement between the parties, the wife filed M.C. No.4/84 under Section 125 Cr.P.C. in the Court of J.F.C.M., Palamaner for maintenance and that the petition was allowed on 3-3-1986 directing the husband to pay a sum of Rs.300/ per month to the wife towards maintenance of herself and her children. In the revision preferred by the husband, Additional District and Sessions Judge, Chittoor modified that order and granted maintenance at the rate of Rs.200/- per month. Later, on 20-4-1990 the husband filed C.R.M.P.No.347/90 under Section 127 Cr.P.C. to set aside the maintenance order dated 3-3-1986 passed in M.C.No.4/84 contending, inter alia, that he divorced his wife on 11-2-1989 according to Muslim Customs and Principles, that the same was accepted by the District Government Kazi, Chittoor and that under Section 3(1 )(a) of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter called 'Act') a divorced woman's right for maintenance is restricted only to the period of 'Iddat' and the husband is not liable to provide maintenance after the period of 'Iddat' and that he had deposited the entire 'Mahar' amount and the maintenance amount for the 'Iddat' period with the District Government Kazi, Chittoor and that he is not liable to pay any further mainte-nance amount as per order in M.C.No.4/84. The wife resisted that petition by filing a counter disputing the allegation of the husband that he divorced her and that he deposited amounts of 'Mahar' and for the period of 'Iddat' and that the Act came into force after 3-3-1986 i.e., the date of maintenance order passed in M.C.No.4/ 84 and the provisions of Section 3(1 )(a) of the Act are not applicable to the case and that she is not a divorced wife and that their marriage is still subsisting and that she is entitled to execute the maintenance order.

(3.) During the enquiry, P.Ws. 1 to 4 were examined and Exs.P-1 to P-7 were marked on behalf of the husband and D.W.-1 was examined on behalf of the wife. On a consideration of the oral and documentary evidence placed before him, the learned Magistrate by his order dated 6-12-1990 dismissed the petition on the ground that the husband failed to prove that he divorced his wife and that the Act of 1986 has not taken away the maintenance awarded in favour of the wife. Aggrieved of that order, the husband preferred Criminal Revision Petition 6/91 and the learned Additional District and Sessions Judge, Chittoor allowed that revision petition and set aside the order passed by the learned Magistrate in Crl.M.P.No.347/90. Assailing that order of the learned Additional District and Sessions Judge, Chittoor, the wife filed Criminal Case No. 426/91 and Criminal Revision Case No.423/91 and the Honourable High Court by its order dated 10-12-1991 allowed the revision case and the order of the learned Additional District and Sessions Judge was set aside and the matter was remanded to the Magistrate Court with a direction to re-appreciate the evidence regarding the factum of divorce and to give a fresh finding as to "whether there was a valid divorce on 11-2-1989 or not". This Court further directed the Magistrate that if he comes to a conclusion that there is a valid divorce, then he should record the finding to the effect that maintenance is not payable beyond the 'Iddat' period commencing from 11-2-1989. After remand, the Counsel for the husband filed Crl.M.P.No.947/92 to recall P.W.2 i.e., the Government Kazi, Chittoor for further examination and that petition was allowed as the Counsel for the wife reported no objection Hence, P.W.2 was recalled on 26-11-1992 and he was further examined. On re-appreciation of the evidence on record, the learned Magistrate by his order dated 11-8-1993 held that the husband has given divorce to his wife on 11-2-1989 in the presence of the District Kazi, Chittoor (P.W.2) and 2 other elders P.Ws.3 and 4, and that Divorce Certificate Ex.P-5 was also issued by P.W.2. The learned Magistrate further held that the wife is not entitled to claim maintenance beyond the period of Iddat' in view of the Act 25 of 1986 and allowed the petition. Aggrieved of that order, the wife preferred Criminal Revision Petition No.69/93 and the learned District and Sessions Judge by his order dated 3-11-1995 reversed the finding of the learned Magistrate and held that the husband failed to prove that he effected divorce to his wife and consequently, allowed the revision and set aside the order of the Trial Court dated 11-8-1993 passed in Crl.M.P.No.347/90 in M.C.No.4/84. Assailing that order of the learned District and Sessions Judge, passed in Criminal Revision Petition No.69/93 the husband has come up with this revision case.