RAFIQUE MOHAMMED Vs. ANISA

JUDGEMENT

(1.) The petitioner is aggrieved by the order dated 27.10.2007 passed by the Judicial Magistrate, First Class, Khandar, District Sawai Madhopur whereby the learned Magistrate has directed the petitioner to pay a monthly maintenance of Rs.700/- each (total Rs.2100/-) to his former wife, Anisa, and to his two children Raja and Sonu. The petitioner is also aggrieved by the order passed by the Additional Sessions Judge (Fast Track), Sawai Madhopur, dated 27.8.2009, whereby the learned Judge has dismissed the revision petition filed by the petitioner.

(2.) Mr. Amir Aziz, the learned counsel for the petitioner, has contended that the respondent-wife, Mst. Anisa, had hidden certain material facts from the learned Magistrate while filing her application under Section 125 Cr.P.C in 2005. According to him, on 12.6.1998, Mst. Anisa had filed an application under Section 125 Cr.P.C. against the petitioner. The said application was decided by the Civil Judge (Junior Division) & Judicial Magistrate, Khandar by order dated 11.5.1999. Since the petitioner was aggrieved by the order dated 11.5.1999, he had filed a revision petition before the Special Judge, Sawai Madhopur. While partly allowing the revision petition by order dated 16.1.2001, the Special Judge had clearly noted the fact that Mst. Anisa was divorced by the petitioner on 15.9.1998. The divorce became effective from 14.1.1999, the day when the petitioner had filed his reply to the application filed by Anisa under Section 125 Cr.P.C. Therefore, the learned Special Judge had modified the order dated 11.5.1999 passed by the learned Magistrate: he had limited the maintenance to be paid to Anisa only for the Iddat period of 90 days from 14.1.1999. The fact that she had filed an application under Section 125 Cr.P.C. was not revealed to the learned Magistrate when Anisa again filed her application on 26.4.2005. Moreover, even in her testimony and in the testimony of her witnesses, the fact about the earlier application filed under Section 125 Cr.P.C., and the fact that the Special Judge had already granted her a maintenance for the Iddat period, were not revealed to the learned Magistrate. Since the order dated 27.10.2007 had been passed ex-parte, the learned Magistrate has been misled by the respondent-wife and by her witnesses.

(3.) On the other hand, Mr. Kuldeep Verma, the learned counsel for the respondent-wife, has contended that in the case of Shabana Bano Vs. Imran Khan, 2010 1 WLC(SC)Cri 148, the Hon'ble Supreme Court has clearly held that maintenance cannot be restricted only to the Iddat period. Therefore, according to him, the learned Magistrate was certainly justified in granting maintenance to the respondent-wife. Secondly, that the petitioner had not brought it to the notice of the revisional court that Raja was staying with him. Therefore, a new plea cannot be raised before this court at this juncture. Therefore, he has supported both the impugned orders.