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2007 DIGILAW 156 (CAL)

SK. SAHABUDDIN v. NAZIMA BIBI

2007-03-08

SADHAN KUMAR GUPTA

body2007
( 1 ) THE judgment of the Court was as follows this revisional application has been preferred under Section 401 read with Section 482 of the Cr. P. C. against the judgment dated 30/11/2006 passed by the learned Additional Chief Judicial Magistrate, Diamond harbour in Case No. M-155 of 2006. ( 2 ) CASE of the petitioner is that the opposite party filed a petition under Section 125 Cr. P. C. before the learned Magistrate and in the said application she stated that she was married with the petitioner long before and was staying in the matrimonial house with the petitioner as his wife and out of the said wedlock she gave birth to three sons. Ultimately, she was driven out from the said matrimonial house. Before filing of the present case, the petitioner field an application under Section 3 of the Muslim women (Protection of Rights) and Divorce Act (hereinafter referred to as the said Act) and in the said proceeding direction was given upon the petitioner to pay Denmohar and maintenance for the Iddat period and for provisions of future maintenance. Out of the said amount, the wife/petitioner constructed a house and she had now no money with her. Under such circumstances, the wife filed the petition under Section 125 Cr. P. C. praying for maintenance against the husband. It was claimed therein that the husband is earning a monthly salary of Rs. 18,000/- being an employee of Haldia Port Trust. The petitioner prayed for maintenance Rs. @ 3000/- per month. ( 3 ) THE husband contested the said case by filing show-cause wherein he denied the allegations of the wife on the material points. According to the husband, he earns about Rs. 7,000/- per month. Moreover, it has been claimed by the husband that the wife has been earning from the interest of the amount she received from the husband in the earlier proceeding. As such, the petitioner/husband claimed that the maintenance application was not at all maintainable. But, the learned Magistrate, by his impugned order was pleased to allow the maintenance application and directed the husband to pay Rs. 1000/- per month in favour of the wife. Being aggrieved and dissatisfied with the said order of the learned Magistrate the husband has filed this revisional application. But, the learned Magistrate, by his impugned order was pleased to allow the maintenance application and directed the husband to pay Rs. 1000/- per month in favour of the wife. Being aggrieved and dissatisfied with the said order of the learned Magistrate the husband has filed this revisional application. According to the petitioner, the wife was not at all entitled to get any further maintenance from him since in an earlier proceeding, filed under Section 3 of the said Act, she has already received the maintenance in accordance with law. The husband has claimed that the learned Magistrate failed to appreciate this while awarding further maintenance in favour of the wife. As such, by filing this revisional application, the husband has prayed for setting aside the said judgment. ( 4 ) IT may be pointed out here that the notice in respect of the revisional application was sent to the wife by registered post with A/d. But although she received the notice by signing in the A/d Card, still none appeared to contest the revisional application. As such, the revisional application was taken up in absence of the opposite party/wife. ( 5 ) IT is the admitted position that the opposite party is a divorced wife of the petitioner. There is also no dispute that the opposite party/wife filed a petition under the provisions of the said Act and in that case direction was given on the husband to pay some amount in favour of the wife. It appears that more than one lakh was paid in favour of the wife in the said proceeding by the husband. Now after the said proceeding was over, the wife again has filed this petition under Section 125 of the Cr. P. C. According to the wife, the money which she received from the husband had been exhausted and as such she is entitled to get further maintenance from the husband, as provided under Section 125 of the Cr. P. C. The learned magistrate was also of the opinion that there is no conflict in between section 125 Cr. P. C. with the said Act and a divorced wife can also pray for further maintenance from the husband as per provisions of Section 125 of the Cr. P. C. The learned magistrate was also of the opinion that there is no conflict in between section 125 Cr. P. C. with the said Act and a divorced wife can also pray for further maintenance from the husband as per provisions of Section 125 of the Cr. P. C. But, the learned Magistrate failed to appreciate that for a Muslim divorced wife, a special statute has been created by the legislature and the lady already approached the said forum. Nowhere it has been stated in the said judgment, as relied upon by the learned magistrate, that even after getting the maintenance as per provisions of the said Act, the divorced wife can also pray for maintenance as provided under Section 125 Cr. P. C. If that is permitted then it will create unnecessary trouble for the husband. The intention of the legislature was not like that. Subsequent petition filed under Section 125 Cr. P. C. cannot be allowed only on the ground to prevent vagrancy, as observed by the learned Magistrate. If the wife is unable to maintain herself even after receiving the maintenance as per provisions of the said Act, then in the act itself provisions have been made in that respect. Without taking advantage of those provisions, the wife has filed the petition under Section 125 Cr. P. C. in order to get further maintenance from the husband. That apart, the wife has claimed that the money, which she received in the earlier proceeding, has already been exhausted in constructing a house. But nothing has produced before the learned Magistrate to substantiate this claim. Under such circumstances, it must be said that the wife has got no proof in support of her contention to that effect. As such, I have got no hesitation to hold that the learned Magistrate was not at all justified in allowing the prayer for maintenance, as made by the opposite party/wife in a subsequent proceeding under Section 125 Cr. P. C. The order, as passed by the learned Magistrate is clearly against the spirit of the legislation and I have got no hesitation to hold that the learned Magistrate acted beyond his jurisdiction in passing the impugned judgment in favour of the wife. ( 6 ) IN the result, the revisional application succeeds. The judgment and order dated 30. 11. ( 6 ) IN the result, the revisional application succeeds. The judgment and order dated 30. 11. 2006 passed by the learned Additional Chief Judicial magistrate Diamond Harbour in Case No. M-155/2006 is set aside. The proceeding being Case No. M-155 of 2006 under Section 125 Cr. P. C. , as pending in the Court below stands dismissed. Interim order of stay, if any stands vacated.