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Madhya Pradesh High Court · body

2017 DIGILAW 149 (MP)

Sahid Khan v. Sayna

2017-01-31

S.K.AWASTHI

body2017
ORDER : S.K. Awasthi, J. The revision petition calls, in question, the order dated 12.12.2014 passed in criminal MJC No. 99/14 by the Principal Judge, Family Court, Morena by which the application under Section 125 of Cr.P.C. filed by the respondent has been partly allowed. 2. The facts, in short, are that the marriage between the applicant and the respondent was solemnized according to Muslim rituals on 06.05.2006 and at that time several gifts were given by the family of the respondent to the applicant. It is further alleged that in the year 2008, the relation between the parties became bad to worse promoting the respondent to leave her matrimonial house and residing with her family. The respondent lodged an FIR alleging the commission of offence punishable under Section 498-A of IPC against the applicant and also filed an application under Section 125 of Cr.P.C. for claiming maintenance amount. 3. Under the proceeding drawn by the respondent for maintenance, the Family Court allowed the application and directed to the applicant to pay maintenance of Rs. 4000/- per month till remarriage of the respondent. Further, an amount of Rs. 51,000/- was also directed to be given to the respondent as Mehar. 4. Learned counsel for the applicant primarily relied on Section 3 and Section 4 of Muslim Women (Protection of Rights on Divorce) Act 1986 (in short the Act of 1986) to put forth an argument that the application under Section 125 of Cr.P.C. is not maintainable as now right of the Muslim Women Act can be assailed in terms of Section 3 of the Act of 1986. In order to substantiate this contention, learned counsel has further relied on Section 5 and 7 of the Act of 1986, by which, according to him, no application under Section 125 of Cr.P.C. can be filed by a divorced Muslim woman and the exented period till which the maintenance can be claimed, is categorically provided under the Act of 1986. While canvassing this contention, the applicant, in alternative, has also challenged the quantum of maintenance fixed by the Family Court on the ground that he has limited source of income and has several responsibilities due to which such exorbitant amount cannot be borned by him. 5. While canvassing this contention, the applicant, in alternative, has also challenged the quantum of maintenance fixed by the Family Court on the ground that he has limited source of income and has several responsibilities due to which such exorbitant amount cannot be borned by him. 5. Per contra, learned counsel for the respondent submitted that the impugned order is a well considered order and all the contentions of the applicant have been examined by the Court below before pronouncing the impugned order. Thus, the revision application must fail. 6. The impugned order was earlier challenged by filing an appeal under Section 19 of Family Court Act which was numbered as F.A. No. 43/2015, although vide order dated 15.06.2015, the Division Bench by following the Full Bench decision of this Court in case of Rajesh Shukla v. Smt. Meena reported in 2005 (2) MPLJ 483 (FB) permitted the present applicant to withdraw the appeal with liberty to file revision. Consequently, the instant revision petition has been filed. 7. Having considered the submissions of both the parties and upon consideration of the documents filed on record, it is clear that the law relating to maintainability of proceedings under Section 125 of Cr.P.C. by a Muslim divorced woman in no longer unsettled. The reliance placed on Section 3 and 4 of the act of 1986 is to bring home the contention that the proceedings under Section 125 of Cr.P.C. are not maintainable whereas the Hon'ble Supreme Court in the case of Shabana Bano v. Imran Khan reported in (2010) 1 SCC 666 has held that :- "23. Cumulative reading of the relevant portions of the judgments of this Court in Danial Latifi and Iqbal Bano would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women. 24. In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance for her husband under Section 125 of Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry. 24. In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance for her husband under Section 125 of Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry. As a necessary consequence thereof, the matter is remanded to the Family court at Gwalior for its disposal on merits at an yearly date, in accordance with law. The respondent shall bear the costs of litigation of the appellant. Counsel's fee Rs. 5000." 8. Thus, the contention of learned counsel for the applicant about maintainability of Section 125 of Cr.P.C. and the period till such maintenance is to be paid cannot be acceded to in the teeth of the judgment of the Apex Court in the case of Shabana Bano (supra). Further, rest of the contention of the applicant has not been substantiated by any document or material. Thus, no opinion can be recorded in this respect by this Court. 9. Taking this view of the matter, the instant revision application is rejected and the order of the Court below is affirmed.