JAHEED ALLI Vs. CHARGUDA FEROZ

JUDGEMENT

(1.) In this Misc. Case, the petitioner -husband, a Mohammedan in religion invokes the inherent power of this Court Under Section 482 of the Code of Criminal Procedure to set aside the order of maintenance. Trie opposite party -wife was awarded a monthly maintenance of Rs. 250/ - for herself and Rs. 100/ -for her minor daughter. The Magistrate's order was confirmed by the Additional Sessions Judge, Sambalpur

(2.) THE opposite party -wife came forward with a case that both of them are Muslims and had married long since. The sons, and three daughters were born out of the wedlock. Sometime in the year 1980, while the petitioner -husband was staying at Btajarajnagar and working as a loader in the Orient Colliery at Budhijam, took a. second wife and thereafter neglected and refused to maintain the opposite party -wife and so she filed a case before the Magistrate Under Section 125 of the Code. The petitioner -husband filed a show -cause. His case was that, no doubt both of them were married and he begot children through opp. party. But while he was staying at Budhijam, the opp. party -wife was staying at Parsamir in U. P., his native place. 'Sometime in the year 1975 -76, the petitioner suspected the illicit relationship of the opp. party -wife with somebody else at Parsamir. When he found the opp. party -wife to have been developed sexual relationship with a stranger and was carrying, he divorced her on 4 -4 -1976 in presence of the members of the Muslim committee at Parsamir and sine then he kept no relationship with her as husband. He took the plea that the opp. party -wife after the above divorce married to one Zalim in the year 1930 -81 and since then they are living as husband and wife.

(3.) NONE appears for the opposite party -wife. Heard Mr. A. K. Mishra on behalf of Mr. P. K. Mishra, learned counsel for the petitioner. Mr. Mishra strertuously urged that the Magistrate who tried the case Under Section 125 Cr. P. C. committed gross error in appreciating the case of the petitioner -husband inasmuch as the teamed Magistrate, according to Mr. Mishra, solely based his reasoning by analysing the evidence of the witnesses of the opposite party -wife but did not effectively discuss the evidence of the witnesses of the petitioner -husband. According to Mr. Mishra, the petitioner having been able to prove satisfactorily the fact of divorce in the year 1976, the petition for maintenance should be disallowed. Mr. Mishra referring to the decisions reported in 71(1991) CLT 547 : (1991) 4 OCR 267 Sirujur Raheman v. Nasim Banoo and Anr. and 67(1989) CLT 353 : (1988) 1 OCR 703 Riswana Begum v. Mly. Motiullah submits that the petition Under Section 125 Cr. P. C. is not maintainable.