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2013 DIGILAW 1590 (BOM)

Reshma Unnus Shaikh v. Unnus Ayub Shaikh

2013-08-13

T.V.NALAWADE

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JUDGMENT Rule. Rule made returnable forthwith. As both sides agreed, the matter is heard for final disposal. 2. The proceeding is filed to challenge the judgment and order of Criminal Revision No. 18/2009, which was pending in the Court of Additional Sessions Judge, Sangamner, District Ahmednagar. The revision was filed by present respondent/husband against the judgment and order of proceeding filed under section 125 of Criminal Procedure Code by the present applicant. The Judicial Magistrate, First Class had granted the maintenance at the rate of Rs. 800/- per month in favour of the present applicant. This decision is set aside by the Sessions Court. This Court was required to appoint a counsel for respondent No. 1 as he did not turn up after service of notice on him. 3. Before J.M.F.C. the respondent/husband had taken a stand that he had given notice on 19.12.1999 to the wife and he had informed that he had given Talaq to her. The J.M.F.C. held that the husband has failed to prove that husband had given Talaq to the present petitioner. The learned Additional Sessions Judge has taken support of the case reported as AIR 1961 Bombay 121 (V 48 C 29) (1) [Chandbi Ex. w/o. Badesha Mujawar Vs. Bandesha s/o. Balwant Mujawar]. In that case, the husband had given Talaq to the wife about 30 years of starting of the proceeding. The High Court had held that the declaration of divorce which can be found in written statement was sufficient and in view of such declaration, the maintenance in respect of only Iddat period can be given. In view of such observations, the learned Additional Sessions Judge held that Talaq was given by the husband and so, the proceeding under section 125 of Cr.P.C. was not tenable. The reasoning given by the learned Additional Sessions Judge shows that the law developed in this regard is not at all considered. 4. The learned counsel for wife placed reliance on some reported cases. In the case reported as (2002) 7 Supreme Court Cases 518 : [2003 ALL MR (Cri) 344 (S.C.)] [Shamim Ara Vs. State of U.P. and Anr.), the Apex Court has laid down that the pronouncement of the Talaq has to be proved by giving evidence in the Court. Mere taking a plea in a proceeding tiled for maintenance is not sufficient. State of U.P. and Anr.), the Apex Court has laid down that the pronouncement of the Talaq has to be proved by giving evidence in the Court. Mere taking a plea in a proceeding tiled for maintenance is not sufficient. It is laid down that such declaration is not sufficient to hold that Talaq was given by the husband. In the case reported as AIR 2010 SUPREME COURT 305 : [2010 ALL MR (Cri) 278 (S.C.)] [Shabana Bano Vs. Imran Khan], the Apex Court has laid down that even after giving Talaq, the husband is expected to make provision for maintenance of the wife and this provision needs to be made during Iddat period. It is laid down that the amount of maintenance to be awarded in such a case cannot be restricted for Iddat period and the maintenance to be fixed during Iddat period should be such that it is sufficient for livelihood of the wife even after the Iddat period or for the period till the applicant does not remarry. The interpretation of sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is made in the aforesaid case and also in the case reported as AIR 2001 SUPREME COURT 3958 (1) : [2001(4) ALL MR 829 (S.C.)] [Danial Latifi and another Vs. Union of India]. Full Bench of this Court has also given direction to treat the proceeding filed under section 125 of Cr.P.C. as one under the aforesaid Act if the husband shows that he has given Talaq to the applicant. This position of law is not at all considered by the learned Additional Sessions Judge. So, this Court holds that judgment and order delivered by learned Sessions Judge needs to be set aside. 5. In the result, the revision is allowed. The judgment and order in Criminal Revision No. 18/2009 delivered by the learned Additional Sessions Judge is hereby set aside. The judgment and order of Criminal Application No. 657/2006 delivered by the J.M.F.C., Sangamner is hereby restored. Fees of the learned counsel appointed through the legal aid for respondent No. 1 is quantified as Rs. 3,000/ - (Rupees three thousand). Revision allowed.