MOTIAR RAHAMAN Vs. SABINA KHATUN

JUDGEMENT

(1.) By the instant Revisional Application under section 401 read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), the petitioner-husband (hereinafter referred to as husband) has prayed the Court for setting aside/quashing the orders dated 4.9.92 and 15.1.93 passed by the Judicial Magistrate, 7th Court at Alipore, in M. Case No. 81 of 1989 before him on the grounds set forth therein.

(2.) The opposite-party No. 1 wife (hereinafter referred to as wife) had filed an application before the learned Magistrate for maintenance against the husband under section 125 of the Code in 1989 registered as M. Case No. 81 of 1989, contending, inter alia, that the parties were married according to Muslim Rites and Customs on 3.4.1985, and the husband had been refusing and neglecting to maintain her, she being unable to maintain herself. The learned Magistrate, upon hearing the parties, had allowed the wife's application for maintenance by order dated 15.9.90 directing the husband to pay the sum of Rs. 200 only per month to her by way of maintenance. The husband contends that after the said order he had tried to bring her back, to be refused by her without any reasonable ground, for which he was compelled to divorce her according to Mohammedan Law on 15.10.1990. He had sworn an Affidavit to that effect and had sent a copy of the declaration to her. On 3.5.1992 he had filed an application before the learned Magistrate under section 3 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter shortened into Act) praying for dropping of the proceedings on the aforesaid facts stated therein. The learned Magistrate after due hearing of the aforesaid petition filed by the husband (on 3.5.1992) had rejected the said application by his impugned order dated 4.9.92, and had fixed the case for payment on 29.10.92. The husband had immediately thereafter applied for certified copy of the aforesaid impugned order dated 4.9.92, and had also filed an application before the learned Magistrate for supply of the certified copy on 14.1.93. But no certified copy of the said order was delivered to him. He had prayed for time on 15.1.93 before the learned Magistrate on the ground that he had not been able to move the Higher Court in the absence of the certified copy of the aforesaid impugned order. But the learned Magistrate had directed issue of warrant of arrest against him by his order dated 15.1.93. Hence the instant Revisional Application for setting aside/quashing the aforesaid impugned orders dated 4.9.92 and 15.1.93 on the grounds made out therein.

(3.) The point emerging for consideration in this proceedings before us is whether a Muslim wife who had already obtained an order of maintenance against the husband under section 125 of the Code from a competent court after coming into force of the aforesaid Act (Act 25 of 1986) would lose the benefit of that order if she is subsequently divorced by her husband.