GAMA NISHA AND MUNNA ANSARI Vs. CHOTTU MIAN

JUDGEMENT

(1.) THIS revision application arises against the order of the Principal Judge, Family Court, Dhanbad on 17/07/1998, in Cr. Misc. No. 4 of 1997, whereby the Principal Judge, Family Court, allowed the application filed by the Opposite Party Chottu Mian, i.e. the husband of petitioner No. 1 and father of petitioner No. 2 Munna Ansari under Section 127 Cr. P.C.

(2.) THE facts in short are that the petitioner, who is the wife of the opposite party Chottu Mian (herein after referred to as the wife for the sake of convenience), filed an application before the Principal Judge, Family Court, Dhanbad, under Section 125 Cr.P.C. against her husband Chottu Mian for grant of maintenance for herself and for her minor son Munna Ansari, which was registered as M.P. Case No. 1/1995. The Principal Judge, Family Court by his order dated 18/05/1995 allowed the said application of the wife and directed the husband to pay maintenance @ Rs. 400/ - P.M. for the wife and @ Rs. 300/ - P.M. for the minor son till he attains the age of majority. Since the husband had not appeared and, therefore, the said order was passed exparte.

(3.) FROM the impugned order of the Principal Judge, Family Court, it appears that he held that in a proceeding under Section 125 Cr.P.C. between a Muslim husband and his wife for maintenance, if the husband states and makes out a case in his pleadings that he has already divorced his wife and even if the court comes to the finding that the plea of divorce was not proved, even then such a statement/plea taken in the pleading by the husband would itself operate as an expression or declaration of divorce by 'Talaq' and divorce would be held to take effect; from the date on which such pleading was filed by the husband. He also referred the decision of Patna High Court reported in 1990 B.B.C.J. 505 in this regard. The Principal Judge, accordingly, held that the petitioner husband had already divorced his wife Gama Nisha, which became effective w.e.f. 21/03/1996, i.e. the date on which he filed application under Section 127 Cr.P.C. in which it was stated that he has already divorced his wife. Consequently, the Principal Judge, allowed the application filed by the husband and set aside the order dated 18/05/1995 allowing maintenance in favour of the wife and the son.