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2003 DIGILAW 1165 (BOM)

Banobee Babbu Garve v. Babbu Hiru Garve

2003-11-12

K.J.ROHEE

body2003
JUDGMENT - ROHEE K.J., J.:-This is an application under section 482 of the Cri.P.C. The marriage between the applicant and the non-applicant had taken place on 7-4-1996, the applicant moved an application for grant of maintenance under section 125 of the Code of Criminal Procedure before Judicial Magistrate, First Class, Karanja on the ground of ill-treatment and negligence. The non-applicant raised plea in his written statement that he had executed Talaqnama (Exh. 22) on 3-9-96 i.e. prior to the filling of the application by the applicant under section 125 of Cri. P.C. On the same day the Talaqnama was sent to her by post, but she refused to accept the same. According to the non-application the applicant is no more his wife and that the application for maintenance was not tenable. 2. By order dated 6-7-1998 J.M.F.C. Karanja rejected the application of the applicant mainly on the ground that she was divorced prior to the filling of the application and hence she was not entitled to claim maintenance under section 125 of the Cri.P.C. The applicant preferred revision against the said order. By order dated 15-12-1998 the Additional Sessions Judge, Washim dismissed the revision application and confirmed the findings recorded by learned J.M.F.C. Karanja. The applicant has challenged both these orders by the present application. 3. The learned Counsel for the applicant submitted that the so called Talaqnama dated 3-9-96 was neither properly executed nor proved during the maintenance proceedings. He therefore, urged that in the absence of proof of Talaqnama, the applicant continues to be the wife of the non-applicant and as such her application for maintenance under section 125 Cri.P.C. was perfectly tenable. Both the courts below were not justified in rejecting her claim on the ground of the so called talaq. Thus she has moved the application to secure the ends of justice. 4. The learned Counsel for the non-applicant on the other hand urged that the formality of pronouncing the Talaq in the absence of the wife is not to be followed. The plea taken by the non-applicant in his written statement that his wife was divorced on 3-9-96 was enough to dislodge her claim for maintenance. He justified the findings recorded by both the courts. In support of his submission, he relied on (Naseemunisa Begum v. Shaikh Abdul)1, 2002(Cri. Supp.) Bom.C.R. (A.B.)706. The plea taken by the non-applicant in his written statement that his wife was divorced on 3-9-96 was enough to dislodge her claim for maintenance. He justified the findings recorded by both the courts. In support of his submission, he relied on (Naseemunisa Begum v. Shaikh Abdul)1, 2002(Cri. Supp.) Bom.C.R. (A.B.)706. The Division Bench of this Court observed in para 20(6) that so far as Muslim woman is considered, there is only a neglected wife who can claim maintenance as per the provisions of section 125 of the Code of Criminal Procedure; but, if she happened to be divorced during the pendency of such proceedings, then her right to maintenance is limited till the period of Iddat expires and for the post-iddat period, she will have to proceed as per the provisions of Muslim Womens (Protection of Rights on Divorce) Act, 1986. In view of these findings, the reasoning given by both the courts below for rejecting the application of the applicant for maintenance under section 125 Cri.P.C. is quite correct and no interference is called for under the inherent powers of this Court. In this view of the matter, the application deserves to be rejected. Hence the following order: The application is dismissed. The parties are directed to bear their own costs. Application dismissed. ------