SK ABDUL RAJAK Vs. GULBAN BIBI

JUDGEMENT

(1.) THIS is the second journey to this Court by the petitioner with respect to the dispute between the parties on the claim of maintenance under Section 125, Cr.P.C. by the opposite party on the ground asserted by her that she is the legally married wife of the petitioner.

(2.) OPPOSITE party filed Cri. Misc. Case No. 97 of 1993, claiming for maintenance from the petitioner under Section 125, Cr.P.C. on the ground of cruelty and desertion and her destitute condition. While that application was pending in the Court of S.D.J.M., Puri, petitioner filed an application challenging maintainability of the proceeding Under/Section 125, Cr.P.C. on the ground of not taking his consent Under/Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (in short, 'the Act'), so as to continue the proceeding Under/Section 125.Cr.P.C. He also pleaded, interalia, about a divorce between the parties. That application being rejected by learned S.D.J.M., petitioner unsuccessfully challenged that order in the Court of Sessions, and learned First Addl. Sessions Judge, Puri dismissed that revision on merit. As against that, petitioner filed Criminal Misc. Case No. 4558 of 1998 under Section 482, Cr.P.C. and that was rejected by this Court on the ground of the bar provided under Section 397(3), Cr.P.C. so also on the ground that the plea of divorce advanced by the petitioner being a disputed fact that issue should not be decided as a preliminary issue. Notwithstanding rejection of the application Under/Section 482, Cr.P.C. in that manner, this Court observed that : 'However the factum of divorce and consequence thereof may be considered by the learned Magistrate on proper assessment of evidence and the personal law of the parties.' It was also observed to afford opportunity of hearing directing the parties to participate in the proceeding in the Court below. After such order the case was transferred to the Court of J.M.F.C., Pipili on jurisdictional ground. At the stage of hearing of the application under Section 125, Cr.P.C. petitioner did not appear and contest. Therefore, on 1.5.2000 the impugned ex parte judgment was passed granting monthly maintenance @ Rs. 500/ - (five hundred) in favour of the opposite party.

(3.) IT is noted in the impugned order that while the opposite party has proved her case regarding death of her first husband and a valid registered marriage as per Ext. 1 and subsistence of the same, the petitioner has not been able to prove any of the grounds advanced by him. Learned Magistrate also believed the unchallenged statement of the opposite party regarding the ill -treatment, cruelty and desertion and the capacity of the petitioner to maintain the opposite party. So far as the legal plea raised by the petitioner in his written statement is concerned, learned Magistrate recorded that since the marriage was performed and registered under the Special Marriage Act, dissolution of the marriage as pleaded under the Mohammadan Law is not maintainable. Accordingly, he found the application Under/Section 125, Cr.P.C. maintainable and granted the monthly maintenance in the manner already indicated.