NOORBANO Vs. IBRAHIM KHAN

JUDGEMENT

(1.) THIS is a petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') invoking the inherent jurisdiction of this Court, filed by a divorced wife against her husband.

(2.) THE brief facts necessary for the disposal of this petition lie in a narrow compass: On 4-3-1991 the petitioner filed a petition under Section 125 of the Code in the Court of the concerned Magistrate against her husband/non-petitioner, claiming maintenance at the rate of Rs. 700/- per month, alleging, inter alia, that she was being ill-treated by the non-petitioner as she had not given birth to any child, and that the non-petitioner was even preparing for performing a second marriage. He had, on some pretext or the other, sent her to her parents house and did not care at all regarding her maintenance. Thus, being neglected by the non-petitioner she had been living with her parents. The non-petitioner filed his reply dated 26-6-1991 to the effect that, in fact, and in law, the petitioner was no longer his wife as he had already divorced her by sending a registered letter dated 10-11-1990 and, therefore, she was not entitled to claim any maintenance allowance from him. Thereafter the non-petitioner filed an application also under Section 5 read with Section 7 of The Muslim Women (Protection of Rights on Divorce) Act, 1986, (for short 'the Act') raising a preliminary objection that in view of the provisions of the Act, the petition filed by the petitioner under Section 125 of the Code was not maintainable. The learned trial Court, while deciding this application held, vide its order dated 19-6-1992, that though the non-petitioner could not prove the sending of the registered letter by him to the petitioner regarding the declaration of divorce by him yet the fact remained that since he had mentioned in his reply dated 26-6-1991 that he had divorced the petitioner, it would be taken to be sufficient proof in the matter that he had divorced her, if not from 7-11-1990 then certainly it would be taken to have become effective from 26-6-1991 i. e. from the date of filing of his reply to the said petition under Section 125 of the Code. Taking this view in the case the learned trial Court by its order dated 30-8-1996 dismissed the petition holding that the said petition under Section 125 of the Code was not maintainable in view of the provisions of the Act.

(3.) BEING aggrieved by the order passed by the learned trial Court the petitioner filed a Criminal Revision No. 86 of 1996 in the Court of Session which was dismissed by the learned Additional Sessions Judge, Sabalgarh, District Morena, vide his order dated 17th February, 1998, Now aggrieved by the order passed by the learned Addl. Sessions Judge the petitioner has invoked the inherent jurisdiction of this Court.