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2017 DIGILAW 1186 (GAU)

Taimur Rahman v. Arjuara Begum

2017-08-28

HITESH KUMAR SARMA

body2017
JUDGMENT : 1. This is a criminal revision petition, filed under section 401 of the Cr. PC, challenging the legality and propriety of the judgment and order dated 23.4.2007, passed by the learned Sub-Divisional Judicial Magistrates, Barpeta, in Case No. 173M/2006, directing the present petitioner to pay maintenance allowance to the present sole respondent @ Rs. 3,500 per month w.e.f. 27.4.2006, i.e., the date of filing of the petition together with the cost of the proceeding being Rs. 1,500. 2. I have perused the petition, filed under section 125 of the Cr. PC, before the learned trial court and also the written statement submitted by the present petitioner as opposite party before the learned trial court. I have perused the impugned judgment as well as the materials placed before this court. 3. I have heard Mr. M.H. Choudhury, learned counsel for the petitioner as well as Mr. M. Hussain, learned counsel appearing for the opposite party. 4. The case of the opposite party, before the learned trial court, was that she got married to the petitioner herein on 17.8.2003 as per muslim law and she was driven out of his house by her husband/present petitioner after subjecting her to cruelty due to failure on her part to meet the demand for money. 5. The present petitioner, as opposite party, in the aforesaid proceeding under section 125 of the Cr.PC, while admitting the marriage, denied his liability to pay maintenance allowance to the present respondent on the ground that he had given talaq to the respondent herein in the office of the Kazi at Sorbhog. On specific questions, before the learned trial court, it came out that only written talaq was given through the Kazi although no oral talaq was given, which according to the finding of the learned trial court was necessary. So, the learned trial court held the talaq to be invalid and, therefore, granted maintenance to the present respondent, who was the first party in the aforesaid proceeding under section 125 of the Cr.PC. 6. The proceeding before the learned trial court was a proceeding under section 125 of the Cr. PC and it appears from the judgment of the learned trial court that it dealt with the muslim law of talaq and also about the validity of talaq, and thereafter, decided to grant maintenance, finding the talaq to be invalid. 6. The proceeding before the learned trial court was a proceeding under section 125 of the Cr. PC and it appears from the judgment of the learned trial court that it dealt with the muslim law of talaq and also about the validity of talaq, and thereafter, decided to grant maintenance, finding the talaq to be invalid. But, in fact, in a proceeding under section 125 of the Cr. PC, a divorcee is also entitled to maintenance. It is not found anywhere in the record that there is a challenge made against the proceeding claiming maintenance by the present respondent under section 125 of the Cr. PC. 7. As per Explanation (b) of section 125 of the Cr. PC, a divorced woman is entitled to maintenance. This is the claim of the present petitioner in the proceeding that the respondent was divorced by him. 8. Therefore, it appears that the present respondent, who was the first party before the learned trial court in the aforesaid proceeding under section 125 of the Cr. PC is entitled to maintenance even if the plea of the present petitioner as opposite party in the proceeding is accepted to be correct that he had divorced the 1st party, i.e., the respondent herein. 9. In view of the above, the judgment and order dated 23.4.2007, passed by the learned Sub-Divisional Judicial Magistrates, Barpeta, in Case No. 173M/2006 is found to have suffered from no illegality and impropriety. 10. Accordingly, the present petitioner is bound to pay the maintenance allowance as awarded by the learned trial court, vide the impugned judgment. However, considering the date of the judgment passed by the learned trial court and the judgment passed by this court today in this Criminal Revision Petition, the learned trial court will ensure whether the present respondent has remarried or not before disbursing the maintenance allowance to her in view of the submission made by the learned counsel for the respondent that the respondent might have remarried by this time. 11. Accordingly, the judgment and order of the learned trial court is upheld and this revision petition stands dismissed. 12. Send down the LCR along with the copy of this judgment.