KAHKASHAN ANJUM Vs. UNION OF INDIA & OTHERS

JUDGEMENT

(1.) This petition filed under Article 226 of the Constitution of India takes exception to the order dated 30.03.2016, whereby the respondents have rejected the claim of the petitioner for grant of maintenance allowance.

(2.) The admitted facts between the parties are that petitioner is legally wedded wife of the respondent No.8. The petitioner preferred an application for grant of maintenance on the strength of an army order AO:02/2001 (Annexure-P/12). The said application of petitioner was rejected by order dated 30.03.2016. The operative reason for rejection of said claim was that petitioner has already been divorced by respondent No.8 in terms of 'Talaqnama' dated 01.08.2012 and, therefore, she is not entitled to get maintenance allowance.

(3.) Mr. Ahmed, learned counsel for the petitioner criticized this order by contending that admittedly the respondent No.8 filed a suit before the Family Court seeking declaration that marriage is dissolved by 'Talaqnama' dated 01.08.2012. Mr. Ahmed submits that in the said case, the present petitioner filed an application under Order 7 Rule 11 CPC and contended that in the light of recent judgment of Supreme Court reported in [Shayara Bano vs. Union of India & others, (2017) 9 SCC 1] no such declaration can be granted and, therefore, suit is liable to be dismissed. The Court below in CS No.45-A/2014 passed a detailed order dated 19.01.2018 and allowed the said application filed under Order 7 Rule 11 CPC. In the result, suit was dismissed. The respondent No.8 unsuccessfully challenged the said order of Family court before the Division Bench of this Court in First Appeal No.322/2018 [Mirza Faheem Beg vs. Kahkasha Anjum], which was dismissed by judgment dated 09.05.2018. By taking this Court to the order of Court below dated 19.01.2018 and judgment of Division Bench of this Court dated 09.05.2018, Mr. Ahmed submits that no 'Talaqnama' exists in the eye of law on the strength of which claim of petitioner for maintenance allowance can be disallowed. In addition, it is argued that a plain reading of army order (Annexure-P/12) shows that this provision is in addition to beneficiary provision for muslim women which are ingrained in Section 24 of the Hindu Marriage Act and Section 125 of Code of Criminal Procedure. If conditions of army order are satisfied, the claimant is entitled to get the maintenance allowance. In view of subsequent event, it is argued that the basic reason for rejection mentioned in the impugned order does not survive and, therefore, the said order may be set aside.