ABDUL RASHID Vs. FARIDA

JUDGEMENT

(1.) The order under challenge in this revision is order dated 22-1-1990 by, Additional Sessions Judge, Sheopurkalan, holding that application for maintenance under S. 125, Cr.P.C. by a Muslim divorced woman was prosecutable even after the enforcement of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

(2.) A Muslim woman named Farida (impleaded as non-applicant in this revision) filed an application under S. 125, Cr.P.C. against her husband Dr. Abdul Rashid (applicant in this revision) on 16-6-1980 before Judicial Magistrate, First Class, Sheopur. That application was for maintenance of herself and her minor daughter Shabnam, aged than 8 years. During the pendency of that application, the husband Dr. Abdul Rashid gave Talak to his wife. That Talak became operative at least from 30-7-1985, when the husband filed an application in the Magistrate's Court informing his wife thereby that he had given Talak to her. This legal position under Mahomedan Law could not be contested and attempt to contest position was given up by Farida's counsel in this Court. It was afterwards on 19/05/1986 that the Act called the Muslim Women (Protection of Rights on Divorce) Act, 1986 - hereinafter called the Muslim Women Act - came into force. On 22-11-l986, the husband Dr. Abdul Rashid made an application in the Magistrate's Court that after the enforcement of the Muslim Women Act, the application under s. 125, Cr.P.C. was not prosecutable. The learned Additional Chief Judicial Magistrate by order dated 23-2-1987 held that the application was not prosecutable so far as it was on behalf of the divorced woman, but it was prosecutable so far as it was on behalf of the minor daughter. So holding, the learned Additional Chief Judicial Magistrate dismissed that application so far as it was on behalf of the divorced woman, but decided to proceed ahead with that application so far as it was on behalf of minor daughter. Mst. Farida went in revision to the Court of Session and the learned Additional Sessions Judge, Sheopurkalan by the impugned order dated 22-1-1990 reversed the decision of the Additional Chief Judicial Magistrate, holding that the application even on behalf of the divorced woman was prosecutable after the enforcement of the Muslim Women Act, and further holding that in prosecution of that application the parties would be required to exercise their option under Sec. 5 of the Act to say whether they would prefer to be governed by the provisions of Ss.125 to 128, Cr.P.C. or by the provisions of the Muslim Women Act. It is this order, which is impugned in this revision by the husband.

(3.) The contention put forward by learned counsel for the applicant was that the present application for maintenance, so far as it was on behalf of Muslim divorced woman, which was admittedly the status of non-applicant Farida in this revision, became unprosecutable after the enforcement of the Muslim Women Act and there could be no question of parties being given any opportunity to exercise option referred to in his order by the learned Additional Sessions Judge. The application was, therefore, rightly dismissed by the learned Additional Chief Judicial Magistrate.