RASHID Vs. RAFIA

JUDGEMENT

(1.) Mst. Rafia filed a petition against of her husband Rashid for grant of maintenance under section 125 Cr. P.C. wherein she made averments that she was married to Rashid on 7-1-1986 according to Mohammedan Law and out of this wed-lock a son was born, who was 2 years 9 months old. Rashid had neglected her for the last 1-1/2 years and she was residing with her parents. She had no source of income, while her husband who was running a barbers shop in Ludhiana earned Rs. 2,000/- per month. She also filed an application for grant of interim maintenance. The application was contested by Rashid on the ground that Rafia was able to maintain herself as she knew tailoring. He admitted his marriage with Rafia which according to him took place in the month of March, 1987 but contended that he had already divorced her in the month of November 1987. At the time of divorce he paid her Mahar and delivered her all her belongings.

(2.) After hearing the counsel for the parties Shri Darshan Singh, Judicial Magistrate 1st Class, Kurukshetra vide his order dated 18-4-1991 granted a sum of Rs. 150/- per month to Rafia respondent by way of interim maintenance from the date of application i.e. 29-11-1990. Aggrieved by this order Rashid filed a revision petition which was dismissed by Shri P.C. Gupta Additional Sessions Judge, Kurukshetra vide his judgment dated 17-8-1991. The present petition has been filed by Rashid under Section 482 of the Code of Criminal Procedure for quashing the proceedings under section 125 Cr. P.C. Annexure P/I; application for grant of interim maintenance Annexure PT 2; order dated 18-4-1991 passed by Judicial Magistrate 1st Class, Kurukshetra Annexure P/3 and judgment dated 17-8-1991 rendered by Additional Sessions Judge, Kurukshetra Annexure P/4. The averments made in the petition are that the parties belong to Muslim community and after the commencement of Muslim Women (protection of rights on Divorce) Act, 1986, the rights of divorced Muslim Women to claim maintenance from her former husband were governed only by the provisions of the Act of 1986 and the provisions of Code of Criminal Procedure were no longer applicable. The petitioner had already divorced the respondent as per Muslim law much before the filing of the petition for maintenance and the respondent was living with her parents as mentioned in the petition. She was a divorced wife and proceedings under section 125 C.L.P.C. amounted to abuse of the process of court.

(3.) 1 have heard the counsel for the parties.