1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.08.2011 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Revision Case (MD).No.461 of 2011 & M.P.(MD).No.1 of 2011 Mohaideen Abdul Rahman .. Petitioner Vs. Seyed Ali Fathima .. Respondent Prayer:- Criminal Revision Petition is filed to revise the order of the learned Chief Judicial Magistrate, Tirunelveli, dated 29.03.2011 made in M.P.No.1483 of 2010 in M.C.No.46 of 2008 having been filed to drop all further proceedings in relation to above respondent. For Petitioner : Mr.S.Palanivelayutham For Respondent : Mr.S.P.Maharajan ORDER This Criminal Revision has been filed to revise the order of the learned Chief Judicial Magistrate, Tirunelveli, dated 29.03.2011 made in M.P.No.1483 of 2010 in M.C.No.46 of 2008 having been filed to drop all further proceedings in relation to above respondent. 2. The respondent is the wife of the petitioner. Their marriage was celebrated on 29.12.2004. Due to love lost between them, the respondent filed M.C.No.46 of 2008, on the file of the Chief Judicial Magistrate Court, Tirunelveli. Enquiry was taken up and the evidence regarding process is also over. In this stage, the petitioner filed an application praying the Court to drop all further proceedings in M.C.No.46 of 2008 by stating that on 03.03.2010, he expressed Talaq thrice to divorce his wife as per the Muslim Law and the marriage between the parties got dissolved, that the fact was intimated to the respondent by registered post but, she refused to receive the same knowing about the said fact, that an intimation from the Jamath was also refused by her, that the respondent would claim maintenance only upto the stage when she was holding the status of wife of the petitioner and that the respondent should have taken steps under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. 3. In the counter filed by the respondent, it is alleged that after the examination of this respondent only this petitioner filed the present application to prolong the proceedings, that this respondent has not been divorced by the petitioner by saying Talaq and that he has created false documents as if Talaq took place. 4. The trial Court Judge has dismissed the application by stating that only on appreciation of evidence on record the Court can decide whether the divorce took place as per the contention of the petitioner and that the Court has also ascertained the period for which the respondent is entitled for maintenance, in case she was divorced. This is the order challenged before this Court. https://hcservices.ecourts.gov.in/hcservices/ 2 5. The Maintenance case was filed on 05.11.2008 and after major portion of the evidence was recorded, on 03.03.2010, the petitioner filed this application. It is incumbent upon him to establish before the Court that he divorced his wife by Talaq. The learned counsel appearing for the petitioner would submit that this stand has not been raised so far by the petitioner before the Court below and in the absence of the determination as to the divorce, he will be put to much hardships. The duty is cast upon the Trial Court to ascertain the entitlement of the claimants to claim maintenance. For this, it has to go through the defence raised by this petitioner. It is stated that in the counter, this aspect was not raised because Talaq occasioned at an later point of time, much later, after the filing of the counter. 6. In the considered opinion of this Court, enquiry has to be taken up on this application again, affording ample opportunities to the parties to adduce evidence both oral and documentary. The Court below has to decide the matter on merits in accordance with law. This Court does not record any finding which may prejudice the view of the Court below while it appreciates the oral evidence and other materials on record at the final disposal stage. Suffice it to set aside the order and to remit the matter back to the Court below for hearing again along with the Maintenance Case. In the result, the Criminal Revision Case is disposed of with the above said observations. The learned Judicial Magistrate, Tirunelveli, is directed to dispose of the maintenance case within a period of six weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (AE) /True copy/ Sub Assistant Registrar(C.S) To The Chief Judicial Magistrate, Tirunelveli. +1. CC to Mr.S.P.Maharajan, Advocate, SR.No. 27345 Copy to : The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai. (to send records if any) srm Crl.R.C.(MD).No.461 of 2011 11.08.2011 TR : 24.08.2011: 2p/4c https://hcservices.ecourts.gov.in/hcservices/