BIBI MUKBARI KHATOON Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner; learned APP for the State and learned counsel for the opposite party no. 2.

(2.) The petitioner, who is the divorced wife of opposite party no. 2, has moved the Court under Section 19(4) of the Family Courts Act, 1984 against the order dated 31.03.2018 passed by the Principal Judge, Family Court, Munger in Maintenance Case No. 60 of 2017, by which her application under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') seeking maintenance has been disposed off holding that as a divorcee, she is not entitled to maintenance under the Mohammedan Law.

(3.) Learned counsel for the petitioner submitted that the order is absolutely perverse and unsustainable in the eyes of law. It was submitted that even if the petitioner being a Muslim woman, is a divorcee, but still she would be entitled to maintenance under Section 125 of the Code independently of her status as Muslim woman. It was submitted that the fact of divorce is contested, inasmuch as, neither anything was brought on record to substantiate that she was divorcee nor the Court has held any enquiry to record a finding that she was divorced by the opposite party no. 2. It was submitted that the entire order sheet, even of the reconciliation proceeding, does not disclose the fact that the petitioner had admitted that she had been divorced by the opposite party no. 2. Learned counsel categorically took the stand that the Principal Judge, Family Court, Munger has given an erroneous finding on fact that in the course of hearing in the reconciliation proceeding, the petitioner had admitted that she is a divorcee. Learned counsel relied upon a decision of the Hon'ble Supreme Court in Shabana Bano v. Imran Khan, 2010 AIR(SC) 305, at paragraphs no. 29 and 30, where it has been held that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry, under Section 125 of the Code and the same would continue after expiry of even the iddat period.