SHAIKH MOHD. ISHTYAQ Vs. JAMILA

JUDGEMENT

(1.) This petition filed under Sec. 482, Cr.PC has been directed against the order dated 2.3.1993 passed by the learned Chief Judicial Magistrate, Baran, whereby he dismissed the petitioners application filed under Sec. 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, (in short, "the Act, 1986") read with Sec. 127(3) Cr.PC with costs amounting to Rs. 250.00.

(2.) Briefly, the admitted facts are that petitioner Shaikh Mohd. Ishtyaq was married to Jamila (non-petitioner) on 2.12.1977 and a son was also born out of their wedlocks. The relations between the husband and wife did not remain cordial and they stared living separately. Jamila alongwith her minor son started living with her parents. On 9.4.1983, Jamila filed application under Sec. 125, Cr.PC in the Court of Additional Chief Judicial Magistrate, Baran for grant of maintenance allowance for herself and her minor son on the ground that she has no source of income. The petitioner in his reply dated 2.9.1986 resisted that application and asserted that he has divorced the non-petitioner. After recording the evidence, the learned Magistrate vide his order dated 13.12.1985 allowed that application and granted maintenance to the non-petitioner @ Rs. 125.00 per month and Rs. 75.00 per month to the minor son. Aggrieved by the said order, the petitioner as well as the non-petitioner preferred their revision petitions. Smt. Jamila prayed for enhancement of the quantum of maintenance allowance while the petitioner retreated that he was not liable to maintain Smt. Jamila after his divorce beyond the Iddat period, in view of the provisions of Sec. 4 of the Act, 1986. The Additional Sessions Judge, Baran by his judgment dated 9.3.1987 dismissing both the revision petitions of the husband and wife, held that the quantum of maintenance allowance granted to Jamila and her minor son was just, proper and adequate. The learned Additional Sessions Judge also held that since Jamilas application under Sec. 125, Cr.PC was allowed on 13.12.1985 i.e. before the Act, 1986 came into force and since the said Act was not retrospective in effect the provisions of Sec. 7 thereof were not applicable and as such, the husband-petitioner was not entitled to any immunity.

(3.) Jamila moved an application under Sec. 127, Cr. PC for enhancement of the maintenance on the ground of change in the circumstances before the learned Chief Judicial Magistrate, Baran. It appears that the petitioner despite service did not appear and as such, exparte proceedings were drawn against him Later on, the petitioner alleged that no proper and sufficient service was effected on him. His application dated 7.12.1991 for setting aside the order proceedings ex-parte against him was dismissed. The learned Chief Judicial Magistrate by his order dated 28.8.1991 enhanced the maintenance allowance from Rs. 125.00 to Rs. 250.00 per month in favour of Jamila and from Rs. 75.00 to Rs. 150.00 per month in favour of minor son. On 23.4.1992, the petitioner filed another application for setting aside the said order of enhancement and a separate application dated 5.12.1992 under Sec. 127 Cr.PC read with Sec. 4 of the Act, 1986, which was rejected by the learned Chief Judicial Magistrate vide his order dated 2.3.1993. Hence this misc. petition.