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2014 DIGILAW 270 (ALL)

SYED MOHD. FAZLE HAIDER ZAIDI v. STATE OF U. P.

2014-01-22

MANOJ MISRA

body2014
JUDGMENT Hon’ble Manoj Misra, J.—Heard learned counsel for the applicant and the learned A.G.A. for the State. By the present application, the applicant has challenged the order dated 17.12.2012 passed by the Special Magistrate-II, Jaunpur in Criminal Case No. 285 of 2012 by which the preliminary objection of the applicant with regards to the maintainability of the application, under Section 125 CrPC, filed by the opposite party No. 2, who is a divorced wife of the applicant, has been rejected. 2. Brief facts of the case are that the opposite party No. 2 for self and for her minor daughter, filed an application, purportedly under Section 125 CrPC, against the applicant in the Court of CJM, Jaunpur for maintenance alleging that on account of certain disputes, there was a divorce between her and her husband and since 1997 she has been living with her minor daughter separately and has not remarried. It has been alleged that her husband had promised to regularly pay maintenance to her, but that was not paid at all though, she, somehow, managed to make both ends meet by selling her jewellery, etc., whereas now, she is in complete destitution and is unable to meet the expenses, particularly that of her daughter, who is a student in need of funds for pursuing her studies. On this application, the applicant herein filed a preliminary objection to the effect that at the time of divorce there had been a settlement under which the opposite party No. 2 was paid Dower and maintenance for the Iddat period and, therefore, the application under Section 125 CrPC was barred not only by the provisions of The Muslim Women (Protection of Rights on Divorce) Act, 1986, but also by laches and limitation. By the impugned order the learned Magistrate rejected the preliminary objection and fixed a date for parties to lead evidence. 3. The submission of the learned counsel for the applicant is that the applicant and the opposite party No. 2 are both Muslim by religion and that the opposite party No. 2 was married to the applicant in accordance with Muslim Law and, subsequently, in accordance with Muslim Law there was a divorce. 3. The submission of the learned counsel for the applicant is that the applicant and the opposite party No. 2 are both Muslim by religion and that the opposite party No. 2 was married to the applicant in accordance with Muslim Law and, subsequently, in accordance with Muslim Law there was a divorce. It has been submitted that at the time of divorce the applicant had not only made the payment of maintenance for the Iddat period but had also paid the agreed Dower amount and there was a settlement where under nothing further remained to be paid, therefore, the application, under Section 125 Cr.P.C., was not maintainable in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. 4. A perusal of the record reveals that the learned Magistrate while rejecting the preliminary objection of the applicant took the view that as the opposite party No. 2 (claimant) had denied the settlement agreement between the parties with regards to the payment of maintenance, and as it has been held by the Apex Court in the case of Shabana Bano v. Imran Khan, (2010) 1 SCC 666 , that an application, under Section 125 Cr.P.C., is maintainable at the instance of a divorced Muslim women, therefore, the preliminary objection raised by the applicant is unsustainable. 5. The submission of the learned counsel for the applicant is that in the case of Iqbal Bano v. State of U.P. and another, (2007) 6 SCC 785 , the Apex Court took the view that the proper course for a divorced Muslim women is to take recourse to the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. It has thus been submitted that the application, under Section 125 Cr.P.C., is not maintainable. It has also been submitted that the application for maintenance has been made with inordinate delay of nearly 15 years, inasmuch as, the divorce was obtained in the year 1997 whereas the application was filed in the year 2012, therefore, the application per se was not maintainable. 6. It has also been submitted that the application for maintenance has been made with inordinate delay of nearly 15 years, inasmuch as, the divorce was obtained in the year 1997 whereas the application was filed in the year 2012, therefore, the application per se was not maintainable. 6. Having given a thoughtful consideration to the submission of the learned counsel for the applicant, this Court is of the view that in the instant case maintenance has been demanded by the opposite party No. 2 not only for herself, but also for the minor daughter, who, admittedly, is born out of the wedlock with the applicant, as is clear from the agreement filed by the applicant at page 19, therefore, in any case the maintenance application cannot be dismissed at the threshold. Further, in case of Iqbal Bano v. State of U.P. and another (Supra) the Apex Court observed that an application, under Section 125 Cr.P.C., by a divorced Muslim women, even if it is not maintainable, the same can be treated as an application under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986. Moreover, in the case of Shabana Bano v. Imran Khan (Supra) the Apex Court had taken a view that the application, even by a divorced Muslim women, would be maintainable, under Section 125 Cr.P.C. 7. So far as the question of delay is concerned, the right to maintenance is a recurring right. On ground of mere delay, the jurisdiction of the Court to entertain the application, under Section 125 Cr.P.C., does not cease. No doubt, it may become a ground to draw adverse inference with regards to the alleged destitution of the claimant. But on that ground, at the threshold, without permitting the parties to lead evidence, the application cannot be thrown out. As admittedly, the parties are yet to lead their evidence and the Court below has fixed a date for that purpose, it is not a fit case for this Court to quash the proceedings at the threshold. But on that ground, at the threshold, without permitting the parties to lead evidence, the application cannot be thrown out. As admittedly, the parties are yet to lead their evidence and the Court below has fixed a date for that purpose, it is not a fit case for this Court to quash the proceedings at the threshold. Even otherwise, whether the opposite party No. 2 is entitled to any maintenance, in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, would depend on the evidence as to whether at the time of divorce the applicant had provided for maintenance or not in accordance with law laid down by the Apex Court in the case of Daniel Latifi v. Union of India, (2001) 7 SCC 740 (see paras 28, 29 and 36 of the report). As this would be a matter which has to be thrashed out after leading of evidence by the parties, the preliminary objection is not sustainable at this stage. In view of the discussion made above, the application is dismissed. It is left open to the applicant to contest theýÿ proceedings on merit by raising all possible grounds. It goes without saying that the Court concerned will endeavour to dispose of the maintenance application, expeditiously.