HAMIDA BI Vs. MUBARIQ

JUDGEMENT

(1.) The applicant has directed this petition under Section 482, Cr. P.C. for quashing the order, dated 16-2-1996 passed by II Additional Sessions Judge, Khargone in Criminal Revision No. 128/1994 whereby the Additional Sessions Judge allowed the revision filed by the non-applicant and set aside the order for maintenance passed by the Magistrate under Section 125, Cr. P.C. in favour of the applicant.

(2.) Briefly stated, that facts of the case are that applicant Hamida Bi filed the application in the Court of Chief Judicial Magistrate Khargone under Section 125, Cr. P.C. for grant of maintenance allowance. The said application was opposed on behalf of the non-applicant. The Chief Judicial Magistrate allowed the petition filed by the applicant and awarded maintenance at the rate of 250/- per month from the date of the order e.g., 24-6-1994 against the non-applicant. Aggrieved by the said order the Chief Judicial Magistrate, Khargone the applicant and the non-applicant have filed separate revision in the Court of II Additional Sessions Judge, Khargone. The applicant prayed for enhancement of the maintenance allowance whereas the, non-applicant prayed for setting aside the order of maintenance passed by the Chief Judicial Magistrate. The Additional Sessions Judge by a common order dismissed the revision filed by the applicant for enhancement but allowed the revision of the non-applicant and set aside the order of the Chief Judicial Magistrate awarding the maintenance in favour of the applicant Aggrieved the applicant has filed this petition for quashing the order of the Additional Sessions Judge passed in Revision No. 128/1994 setting the order of the maintenance passed in favour of the applicant.

(3.) I have heard Mr. Mev for the applicant and Mr. T.N. Singh for the non-applicant. The Counsel for the applicant pointed out that revision filed by the non-applicant was allowed and the order of maintenance was set aside only on the ground that the applicant without any reasonable cause deserted the, husband and started living separately. The Sessions Judge held that as the parties are Muslims the applicant is not entitled to live separately on the ground that the non-applicant, her husband contracted second marriage, as the Mohammedan permits second marriage. The contention of the Counsel for the applicant is that irrespective of the personal law applicable to the parties, the wife is entitled to live separately and claim maintenance under Section 125, Cr. P.C. if the husband contracts second marriage or keeps a mistress. The order of the Sessions Judge setting-aside the maintenance causing hardship and an interference of this Court to prevent abuse of process of court and to secure ends of justice, appears necessary. The Counsel relied on the decision of the. Apex Court in case of Begum Subanu Saira Banu & Another v. A.M. Abdul Gafoor. The contention of the Counsel for the applicant is that from the evidence it is clear that initially without any reasonable cause, the applicant deserted her husband and started living separately and on making efforts did not return to her matrimonial home. In the circumstances, he was forced for the second marriage. The Counsel supported the order of the Revisional Court setting aside the order of maintenance passed in favour of the applicant.