ALIMUDDIN KHAN Vs. NASIRAN BIBI

JUDGEMENT

(1.) The petitioner has invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code') with a prayer to quash the order of maintenance passed by the S.D.J.M., Cuttack against him under Section 125 of the Code vide order dated 12-12-1989 in Criminal Misc. Case No. 94 of 1988 which was confirmed by the First Addl. Sessions Judge, Cuttack in Criminal Revision No. 7 of 1990 vide order dated 19-3-1993.

(2.) Opposite party No. 1 herself and for her minor sons opposite parties 2 and 3 claimed maintenance from the petitioner who is her husband and father of opposite party Nos. 2 and 3 on the ground of negligence, cruelty and desertion. In his written statement petitioner admitted the relationship but denied the allegations of negligence, cruelty and desertion. At the stage of tendring evidence the petitioner made a statement that he had divorced the opposite party No. 1 learned S.D.J.M. recorded a finding that the plea of divorce was not proved and that opposite party No. 1 proved the factum of negligence, cruelty and desertion. Accordingly, he awarded monthly maintenance of Rs. 200/- to the opposite party No. 1 and Rs. 100/- to each of opposite parties 2 and 3 from the date of application i.e. 5-4-1988. In Criminal Revision No. 7 of 1990 learned First Addl. Sessions Judge, Cuttack on assessment of the evidence confirmed the findings of the S. D. J. M. and dismissed the revision.

(3.) In the petition under Section 482 of the Code though the orders of the lower Courts are challenged both in respect of the decision on the issue of divorce as well as on the issue of negligence, cruelty and desertion and the grant of maintenance thereof, yet at the time of arguments Mr. S. K. Aziz, learned Counsel for the petitioner confined his argument only with respect to the issue on divorce. Hence, the other grounds raised in the petition are treated as not pressed. Mr. Aziz argued that the parties are Muslim and are governed by their personal law. In a proceeding under Section 125 of the Code the petitioner (opposite party herein) has to comply with mandatory provisions under Muslim Women (Protection of Rights and Divorce) Act, 1986 (in short, 'the Act'). He further argued that keeping in view the settled legal position the courts below should have accepted that the plea of divorce has been substantiated at least from the date of evidence if not from the date on which the divorce took place in 1988. He thus prayed to quash the order by exercise of inherent power under Section 482 of the Code.