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Allahabad High Court · body

2008 DIGILAW 2293 (ALL)

SAMSUDDIN v. STATE OF U. P.

2008-11-19

ARVIND K.TRIPATHI

body2008
JUDGMENT Hon’ble Arvind K. Tripathi, J.—This revision has been filed against the judgment and order dated 22.4.2008 passed by the Principal Judge, Family Court, Allahabad in Crl. Complaint No. 18 of 2004 (Badrunnisha v. Samsuddin) under Section 125, Cr.P.C. PS. Manda, Allahabad. 2. Heard learned counsel for the applicant, learned AGA and learned counsel for the opposite party No. 2. 3. On 6.6.2008 learned counsel for the applicant expressed that there was chance of settlement in between the parties, hence the matter might be referred to the Mediation & Reconciliation Centre, High Court, Allahabad. The notices were issued, the applicant was directed to deposit Rs. 5,000/- for expenses before the Registry of this Court within three weeks, out of which half was required to be paid to the opposite party No. 2 to meet out the expenses but the aforesaid amount has not been deposited, hence the present revision is being heard finally on merit on the consent of the parties. 4. Learned counsel for the applicant submitted that a divorce suit was filed and she has been divorced, hence she was entitled for maintenance under the provisions of Muslim Women (Protection of Right and Divorce) Act, 1986. The proceeding has already been initiated under the provisions of Muslim Women (Protection of Right and Divorce) Act. 5. From a perusal of the order of Courts below it is clear that since the divorce was not proved before the Family Court, hence at this stage it cannot be said that the application under Section 125, Cr.P.C. was not maintainable because after the divorce till the period of Iddat she will be entitled for maintenance. If divorce is proved then after period of Iddat the application under Section 125, Cr.P.C. would not be maintainable. 6. In view of the judgment of the Apex Court reported in 2007 (3) SCC (Cr) 258, Iqbal Bano v. State of U.P. and another the Muslim women can maintain the petition under Section 125, Cr.P.C. even after enactment of the Muslim Women (Protection of Right on Divorce) Act, 1986. The aforesaid Act applies only to divorced woman and not to those woman who is not divorced. It was further held by the Apex Court that a divorced muslim woman is entitled to a reasonable and fair provision for maintenance at the time of divorce. The aforesaid Act applies only to divorced woman and not to those woman who is not divorced. It was further held by the Apex Court that a divorced muslim woman is entitled to a reasonable and fair provision for maintenance at the time of divorce. The muslim husband is required to contemplate the future needs and make proprietary arrangement in advance for allowing those needs sufficient for livelihood after the divorce. It was held that a mere plea taken in the written statement of the divorce having been pronounced sometime in the past cannot at all be treated as effectuating Talaq on the date of delivery of the copy of the written statement to the applicant. The husband ought to have adduced the evidence and prove the pronouncement of the Talaq and if he fails in proving the plea raised, the plea ought to have been treated as failed. A plea for previous divorce taken into written statement cannot at all be treated the pronouncement of the Talaq by the husband on the date of filing of the written statement by the husband in the Court followed by a delivery of copy. 7. In view of the aforesaid discussion and fact of the present case since the divorce was not proved by the applicant husband hence the application for maintenance was rightly entertained and allowed by the Judge, Family Court, Allahabad. 8. So far as the income of the applicant is concerned it has been considered by the Family Court. Admittedly the opposite party No. 2 is wife of the applicant and even if he is labourer working in the cloth mill Rs.1000/- as maintenance allowance to opposite party No. 2 is not excessive. 9. However, the impugned order is modified to the extent that the applicant will be entitled for maintenance under the provisions of Section 125, Cr.P.C. even after the divorce till Iddat period after that she will be entitled for maintenance under the provisions of Muslim Women (Protection of Right on Divorce) Act, 1986. 10. Accordingly with the aforesaid observation the present revision is rejected. No order as to cost. ————