NARUL HODA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) I have heard the learned Advocates at a great length. The petitioner before the learned Magistrate filed an application under Section 125 of the cr. P. C. praying for maintenance.

(2.) THE present petitioner husband took the plea that the petitioner before the Magistrate has been a Talaqi wife in an appropriate proceeding under Section 3/4 Muslim Women (Protection of Rights on Divorce) Act, 1986, and the relief which the Talaqi wife was entitled to had already been granted, as such an application under Section 125, Cr. P. C. by a Talaqi wife was not maintainable. A further plea was taken that the said application under Section 125, Cr. P. C. was a second application, the first one under that section having been dismissed earlier. The learned Magistrate observed that the first application under Section 125, Cr. P. C. was not disposed of on merit and there was no question of invocation of the doctrine of res judicata. I do not find any reason to disagree with the learned Magistrate on this point.

(3.) IN the order impugned dated 30th September, 2008, the learned magistrate granted interim maintenance upon an application of the wife under section 125, Cr. P. C. and the main application is yet to be disposed of on merit. Mr. Mukherjee, the learned Advocate raised two-fold points, namely, without application for Section 5 of the Act, 1986, there cannot be filing unilaterally a proceeding under Section 125, Cr. P. C. by a Talaqi wife and since both the parties did not agree to be guided by a proceeding under Section 125, cr. P. C. , the erstwhile wife was not legally competent to take out an application under section 125, Cr. P. C. The second Ground is that since the relief available to a Talaqi wife has already been granted in a proceeding by a competent court, no subsequent proceeding under Section 125, Cr. P. C. for. maintenance is maintainable.