KOUSHER ALI LASKAR Vs. MOSLEMA BIBI

JUDGEMENT

(1.) The instant criminal revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure is at the instance of Shri Kousher Ali @ Kousher Ali Laskar, the petitioner, who happened to be the husband of opposite party No. 1-Moslema Bibi and this is directed against the order dated 14.9.1998 passed by the learned Additional Sessions Judge, 1st Court, Howrah in Criminal Motion No. 1 of 1998.

(2.) The case of the petitioner was in brief that his wife being opposite party No. 1-Moslema Bibi filed an application under Section 125 of the Code of Criminal Procedure before the learned Judicial Magistrate, Uluberia, Howrah, claiming maintenance for herself. The said misc. case being Misc. Case No. 101/95 was disposed of by the learned Magistrate concerned on 12.7.1996 with a direction that the petitioner should pay maintenance at the rate of Rs. 750/ - per month to opposite party No. 1-wife from the date of order, viz. 12.7.1996. Since the petitioner had been suffering from Tuberculosis and was unable to perform his normal duties, he could not pay the maintenance to his wife in the midst of his untold misery and sufferings. Nonetheless the petitioner tried his level best to bring back opposite party No. 1-wife, who, however, deliberately refused to come back to the matrimonial home. In such circumstances the petitioner had no other alternative but to pronounce 'Talak' on 10.8.1996 according to Muslim Rites and Customs in the presence of witnesses. The said 'Talaknama' was reduced into writing by Moulana Mufte Abdul Hamid Muzahari, Chief Imam of Uluberia Jamma Masjid, Howrah and the factum of Talak was duly communicated to the opposite party-wife. Thereafter, the petitioner-husband filed an application under Section 127 of the Code before the Court of learned Judicial Magistrate, Uluberia and made a prayer for quashing the order of maintenance as passed against him on the ground that opposite party No. 1-wife was not entitled to get maintenance from the petitioner-husband as per provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 having been divorced by the petitioner vide 'Talaknama' dated 10.8.1996. Such a petition of the petitioner-husband under Section 127 of the Code was disposed of by the learned Magistrate concerned on 23.9.1997 passed in Misc. Petition No. 3/96 holding inter alia that the opposite party No. 1, being a divorcee shall be entitled to get maintenance at the rate of Rs. 750/- per month for the period beginning from the date of order, viz, from 12.7.1996 till the date when opposite party-wife came to know about the Talak, viz. 29.4.1997. Being aggrieved by such an order, the opposite party No. 1-wife filed a Criminal Motion being No. 1/98 before the learned Additional Sessions Judge, 1st Court, Howrah praying for quashing the impugned order passed by the learned Judicial Magistrate on 23.9.1997 in Misc. Petition No. 3/96. The said criminal motion was disposed of by learned Additional Sessions Judge, 1st Court, Howrah on 14.9.1998 holding inter alia that the learned Magistrate concerned committed error by allowing the application of the petitioner-husband under Section 127 of the Code. According to the learned Additional Sessions Judge, 1st Court, Howrah, the factum of Talak allegedly given by the petitioner-husband has not been proved and so the petition filed by the petitioner-husband has not been proved and so the petition filed by the petitioner-husband under Section 127 of the Code for modification/ change/ alteration of the earlier order of maintenance dated 12.7.1996 was liable to be dismissed. Being aggrieved by such a finding, the petitioner-husband has filed the instant revisional application for quashing the said order of the learned 1st Additional Sessions Judge passed in Criminal Motion No. 1 of 1998 on -14.9.1998.

(3.) I have had the opportunity of hearing learned Counsel for both the parties at length in the matter.