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Madhya Pradesh High Court · body

2017 DIGILAW 985 (MP)

Saiyana Bano v. Rashid Qureshi

2017-09-07

G.S.AHLUWALIA

body2017
ORDER 1. This revision under sections 397 and 401 of CrPC has been filed against the order dated 18.2.2011 passed by the Fourth Additional Sessions Judge, Bhind in Criminal Revision No.226/2010 setting aside the order dated 5.10.2010 passed by the CJM, Bhind in Criminal Case No.14/2006, by which the application filed by the applicant under section 125 of CrPC was allowed and the respondent was directed to pay maintenance at the rate of Rs.2,500/- per month to the applicant. 2. The necessary facts for the disposal of the present application in short are that the applicant filed an application under section 125 of CrPC before the Court of CJM, Bhind on the ground that she was married to the respondent, however, she was turned out of her matrimonial house after harassing her mentally and physically. The respondent is working in the Office of SDM, Mehgaon, District Bhind and his monthly salary is Rs.20,000/- per month and the applicant has no source of income and is unable to maintain herself. 3. The respondent filed a reply and denied the allegations. It was alleged that the respondent has divorced the applicant on 29.12.2005 and has paid the maintenance amount during the Iddat period and accordingly after the Iddat period, he is not liable to make payment of maintenance amount. 4. After recording the evidence of the parties, the trial Magistrate by order dated 5.10.2010 passed in Criminal Case No.14/2006 allowed the application filed under section 125 of CrPC and directed the respondent to pay Rs.2,500/- per month by way of maintenance. Being aggrieved by the order dated 5.10.2010, the respondent filed a criminal revision, which was registered as Criminal Revision No.226/2010 and the same has been allowed by order dated 18.2.2011 passed by the Fourth Additional Sessions Judge, Bhind on the ground that the applicant has been granted divorce by the respondent and, therefore, she is not entitled for maintenance after the Iddat period and set aside the order dated 5.10.2010 passed by the CJM, Bhind. 5. Challenging the order passed by the revisional Court, it is submitted by the counsel for the applicant that a Muslim divorced woman is also entitled to claim maintenance from her husband even after expiry of Iddat period so long as he does not remarry. 5. Challenging the order passed by the revisional Court, it is submitted by the counsel for the applicant that a Muslim divorced woman is also entitled to claim maintenance from her husband even after expiry of Iddat period so long as he does not remarry. To buttress his contention the counsel for the applicant relies upon the judgment passed by the Supreme Court in the case of Shamima Farooqui v. Shahid Khan, reported in (2015)5 SCC 705 , as well as in the case of Shabana Bano v. Imran Khan, reported in 2010(1) JLJ 250. 6. None appears for the respondent even in the second round. 7. Heard the learned counsel for the applicant. The Supreme Court in the case of Shamima Farooqui (supra), has held as under:- “9. First of all, we intend to deal with the applicability of section 125 CrPC to a Muslim woman who has been divorced. In Shamim Bano v. Asraf Khan [ (2014)12 SCC 636 ], this Court after referring to the Constitution Bench decisions in Danial Latifi v. Union of India [ (2001)7 SCC 740 ] and Khatoon Nisa v. State of U.P. [(2014)12 SCC 646] had opined as follows: (Shamim Bano case, SCC p. 644, paras 13-14). “13. The aforesaid principle clearly lays down that even after an application has been filed under the provisions of the Act, the Magistrate under the Act has the power to grant maintenance in favour of a divorced Muslim woman and the parameters and the considerations are the same as stipulated in section 125 of the Code. We may note that while taking note of the factual score to the effect that the plea of divorce was not accepted by the Magistrate which was upheld by the High Court, the Constitution Bench opined that as the Magistrate could exercise power under section 125 of the Code for grant of maintenance in favour of a divorced Muslim woman under the Act, the order did not warrant any interference. Thus, the emphasis was laid on the retention of the power by the Magistrate under section 125 of the Code and the effect of ultimate consequence. 14. Slightly recently, in Shabana Bano v. Imran Khan [2010(1) JLJ 250= (2010)1 SCC 666 ], a two-Judge Bench, placing reliance on Danial Latifi, has ruled that: (Shabana Bano case, SCC p. 672, para 21). ‘21. 14. Slightly recently, in Shabana Bano v. Imran Khan [2010(1) JLJ 250= (2010)1 SCC 666 ], a two-Judge Bench, placing reliance on Danial Latifi, has ruled that: (Shabana Bano case, SCC p. 672, para 21). ‘21. The appellant’s petition under section 125 CrPC would be maintainable before the Family Court as long as the appellant does not remarry. The amount of maintenance to be awarded under section 125 CrPC cannot be restricted for the Iddat period only.’ Though the aforesaid decision was rendered interpreting section 7 of the Family Courts Act, 1984, yet the principle stated therein would be applicable, for the same is in consonance with the principle stated by the Constitution Bench in Khatoon Nisa.” In view of the aforesaid dictum, there can be no shadow of doubt that section 125 CrPC has been rightly held to be applicable by the learned Family Judge.” 8. In the light of the judgments passed by the Supreme Court in the cases of Shamima Farooqui (supra), and Shabana Bano (supra), this Court is of the view that the revisional Court committed material illegality by setting aside the order of the CJM, Bhind on the ground that a Muslim divorced woman is not entitled for maintenance under section 125 of CrPC after the period of Iddat. Accordingly, the order dated 18.2.2011 passed by the revisional Court in Criminal Revision No.226/2010 is hereby set aside. The order dated 5.10.2010 passed by the trial Court in Criminal Case No.14/2006 is restored. Accordingly, this revision succeeds and is hereby allowed.