BASHIR KHAN Vs. JAMILA BEE

JUDGEMENT

(1.) Judicial Magistrate, First Class, Kawardha vide order dated 13-8-1986 awarded the non-applicant maintenance of Rs. 100 / - per month under S. 125 of the Code of Criminal Procedure. Proceedings for recovery of the aforesaid amount of maintenance under S. 128 of the Code of Criminal Procedure pending before the said Court are sought to be quashed in this petition under S. 482 of the Code of Criminal Procedure.

(2.) In the proceedings for recovery of maintenance amount the applicant/ husband filed an objection on the ground that since he has divorced the non-applicant/ wife on 15-8l988 vide Annexure-A and B she was not entitled to maintenance in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act No. 25 of 1986) (hereinafter the said Act' for short). The prayer was disallowed. The revision presented by the applicant also failed. Then the prayer was re-submitted before the learned Magistrate but the same was dismissed vide order dated 4-12-1991 (Annexure-D) necessitating the present petition.

(3.) Petitioner's learned counsel has argued that in view of Mohd. Umar Khan v. Gulshan Begam, 1991 MPLJ 586 : 1992 Cri LJ 899, the non-applicant has no option to challenge the factum of Talak. In view of the divorce since none of the parties has given in writing supported by affidavit any option to proceed in the matter under S. 125 read with S. 128 of the Code of Criminal Procedure the pending proceedings for recovery of the amount of maintenance has lapsed under S. 5 of the said Act. Its continuance amounts to abuse of the process of law and, therefore, 0deserves to be quashed.