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2008 DIGILAW 675 (MP)

Jumana Bai v. Mushtaq Ali

2008-05-08

S.R.WAGHMARE

body2008
ORDER 1. This revision has been filed under section 397 read with section 401 of the Criminal Procedure Code by the petitioner Jumana Bai wife of Mushtaq Ali assailing the order dated 2.11.2007 passed by the Additional District Judge, Fast Track, Kukshi in Criminal Revision No.49/07 dismissing the order of maintenance passed by the trial Court. 2. Brief facts as alleged are that the petitioner Jumana Bai has filed an application under section 125 of the CrPC before the trial Court stating that she had married Mushtaq Ali in the year 1986 at Kukshi and that on 13.1.2001 Mushtaq Ali had left the petitioner wife at her parental home. The religious guru and parents of the wife had tried to pacify the respondent husband, however, he had abandoned the wife without any reason. Jumana Bai stating that her husband Mushtaq Ali had earning of Rs. 10,000/- per month claimed Rs. 3,000/- as monthly maintenance. 3. Considering the case on its merits and evidence the trial Court ordered Rs. 2,000/- as maintenance to be paid to Jumana Bai. Being aggrieved Mushtaq Ali filed a revision before the Additional District Judge, Kukshi who by impugned set aside the order of the trial Court stating that under the Mohammedan Law a Muslim lady is not entitled to maintenance and if at all she is aggrieved that she should seek recourse to Mohammedan Law for relief. The learned Court relied on 2000 (4) MPLJ 62 for above said reasons. 4. The sole reason for setting aside the order of the trial Court was that a Muslim woman under section 125 of the CrPC is not entitled for maintenance. I find that the learned Judge of the Revisional Court is highly misconceived in his notion that Muslim woman cannot file an application under section 125 of the CrPC for maintenance and I find support by placing reliance on (2007) 6 SCC 785 (Iqbal Bano v. State of U.P. and another) whereby the apex Court held thus: "The view expressed by the First Revisional Court that no Muslim woman can maintain a petition under section 125, CrPC is clearly unsustainable. The Muslim Women (Protection of Rights on Divorce) Act, 1986 only applies to divorced women and not to a woman who is not divorced. Furthermore, proceedings under section 125, CrPC are civil in nature. The Muslim Women (Protection of Rights on Divorce) Act, 1986 only applies to divorced women and not to a woman who is not divorced. Furthermore, proceedings under section 125, CrPC are civil in nature. Even if the Court noticed that there was a divorced Muslim who had made an application under section 125, CrPC, it was open to the Court to treat the same as a petition under the 1986 Act considering the beneficial nature of the legislation, especially since proceedings under section 125, CrPC and claims made under the Muslim Women Act are tried by the same Court." The apex Court after considering a Catina of cases, the Muslim personal law and the famous Shah Bano case thus summed up the conclusions thus: "(1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorce wife which obviously includes her maintenance as well. Such a reasonable and the provision extending beyond the iddat period must be made by the husband 'within the iddat period in terms of section 3 (1) (a) of the Act. (2) Liability of a Muslim husband to his divorced wife arising under section 3 (3) (a) of the Act to pay maintenance is not confined to the iddat period. (3) A divorce Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Waqf Board established under the Act to pay such maintenance." 5. Hence, the view expressed by the apex Court as well as supporting judgment of the trial Court render the submission by the counsel for the applicant that Muslim women cannot prefer application for maintenance under section 125 of the CrPC otiose and it is hereby demolished. 6. Thus, under the circumstances the judgment of the revisional Court is set aside and that the judgment of the trial Court is restored. The maintenance awarded by the trial Court amounting to Rs. 6. Thus, under the circumstances the judgment of the revisional Court is set aside and that the judgment of the trial Court is restored. The maintenance awarded by the trial Court amounting to Rs. 2,000/- per month to the petitioner wife is reaffirmed and shall be payable to the petitioner wife as directed by the trial Court by the husband Mushtaq Ali, the respondent. The arrears may positively be paid within two months. In case of default the petitioner is free to carry out the execution proceedings. With these directions, the petition is allowed.