QURESHIA BI Vs. ABDUL HAMEED

JUDGEMENT

(1.) Invoking the jurisdiction under section 482 of Criminal Procedure Code and challenging the orders passed by the revisional Court dated 9-2-2011 upholding the order of the trial Court dated 6-10-2009, rejecting the application filed by the applicant under section 127 of Criminal Procedure Code as not maintainable on commencement of Muslim Women (Protection of Rights on Divorce) Act, 1986, the applicant has preferred this petition. The facts leading to file the present petition are that the applicant and the non-applicant belong to Muslim caste and married according to the Muslim religion. The applicant divorced by the non-applicant-husband on 15-10-1986, thereafter competent Court passed the judgment dated 11-5-1997 decreeing the suit of divorce. On filing an application under section 125 of Criminal Procedure Code by the applicant, an amount of maintenance Rs. 125/- monthly was awarded as per order dated 15-10-1985 passed in Criminal Miscellaneous Case No. 10/83 by Judicial Magistrate First Class, Indore. After lapse of more than two decades, the applicant filed an application under section 127 of Criminal Procedure Code on 12-1-2007 seeking alteration in the monthly allowance on the ground that husband has re-married, however, maintenance awarded about 27 years back is inappropriate to meet out the present expenses due to rise in prices. Thus, looking to his present earning more than Rs. 10,000/- per month, enhanced maintenance of Rs. 3000/- may be directed to pay, to the applicant.

(2.) The non-applicant has raised an objection regarding maintainability of the said application in reply, inter alia contended that the applicant is the divorced woman as admitted by her, in Miscellaneous Criminal Case No. 55/04 which was rejected on account of non-production of the evidence. Thus, after commencement of the said Act, application filed by applicant under section 127 of Criminal Procedure Code is not maintainable.

(3.) The trial Court relying upon the judgment of this Court in the case of Munni @ Mubarik vs. Shahbaz Khan, 2002 2 MPLJ 340recorded a finding that the application filed by the petitioner under section 127 of Criminal Procedure Code is not maintainable, the said order has been upheld by the revisional Court in toto, however the present petition has been filed.