SABERA BIBI Vs. SYED HABIBUR RAHEMAN

JUDGEMENT

(1.) The Criminal appeal filed by appellant wife Sabera Bibi from an order passed by the learned Judge, Family Court, Cuttack directing refund of an amount of Rs. 5450.00 being realised from the respondent by execution of a distress warrant and the Criminal Revision filed by the petitioner-husband Dr. Sayed Khalilur Rahman against an order of the S.D.J.M. Cuttack dismissing the application of the revisionist for exonerating him from paying the maintenance amount are assailed before us. These two cases have been heard together and this common order will govern both the cases.

(2.) Appellant Sabera Bibi has claimed to be the married wife of Dr. Sayed Khalilur Rahman, the revisionist, and out of their wedlock a female child was born. The wife-Sabera Bibi filed an application for maintenance under Section 125, Cr.P.C. which was registered as Criminal Misc. Case No. 127 of 1980 in the Court of S.D.J.M. Cuttack. In the said application the petitioner husband was directed to pay Rs. 200.00 per month for the purpose of maintenance of his wife and daughter. Petitioner husband challenged the said order in a revision before this Court which was dismissed on 27-9-1986. Thereupon the appellant Sabera Bibi filed an application for realisation of Rs. 6200.00 towards arrear maintenance by attachment of her husband's salary or by issuing distress warrant against him. The said application is still pending. As a matter of fact while executing the distress warrant the police realised Rs. 5450.00 from the son of the respondent, as a reason whereof, petitioner's son filed an application before the learned Judge, Family Court, Cuttack that he had no obligation to pay any maintenance to the appellant , thus the realisation of Rs. 5450.00 from him in execution of distress warrant should be refunded to him. The learned Judge, Family Court directed refund of the money to the son of the respondent-husband as a reason whereof the wife of the revisionist filed an appeal. The husband-petitioner filed an application before the learned S.D.J.M. Cuttack by stating that he is not liable to pay any maintenance inasmuch as there was already a 'Talaq' by the petitioner and thereafter the opposite party- wife is no longer entitled to the maintenance amount.

(3.) The case has suffered a chequered history inasmuch as it is pending since 1980. There has been no dispute as regards the relationship of the parties. The appellant Sabera Bibi is undisputedly the wife of Dr. Sayed Khalilur Rahman. The question now arises for consideration whether the husband would still be liable to pay maintenance even after, 'Talaq' alleged to have been granted by him beyond Iddat period. The wife has claimed that no Mehr was paid to her by the respondent-husband at the time of 'Talaq'. It has been further stated that mere uttering the word 'Talaq' the liability and responsibility of the husband to pay maintenance does not cease to exist as long as the appellant Sabera Bibi is not economically rehabilitated nor has gone for remarriage. Thus, the Judge, Family Court has palpably committed an error in rejecting appellant Sabera Bibi's prayer for maintenance.