1 Cri.Revn.Appln.No.411/05 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.411 OF 2005. with CRIMINAL APPLICATION NO.2795/2008. Shaikhinabee Sayyad Wali Shaikh Age: 48 Yrs., occu. Household, R/o Penur, Tq. Loha District Nanded. - PETITIONER VERSUS Sayed Wali s/o Katusab Shaikh Age; 51 Yrs., occu. Business, R/o Penur, Tq. Loha, District Nanded. - RESPONDENT ***** Mr.Anil M.Gaikwad, Advocate for Petitioner; Mr.H.I.Pathan, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 16th MARCH, 2011. ORAL JUDGMENT: 1) Heard both the learned Counsel extensively. 2 Cri.Revn.Appln.No.411/05 2) Rule was issued on 18th April, 2006. The Award of maintenance was stayed. 3) The admitted position between the parties is, petitioner – Shaikhinabee was married to respondent – Sayyed Wali s/o Katusab Shaikh 30 years prior to filing of the proceedings under Section 125 Cr.P.C. The couple is blessed with two female children, who are married. An irony in the life of petitioner-wife is multiplied on the accusations from her husband of developing illicit relations with one Uttam. On 11.6.2002, since the wife was deserted without sufficient cause, she filed the maintenance proceedings. On 25th September, 2002, the matter was posted for appearance. On 25th October, 2002, the respondent/husband filed his response/written statement. For the first time, he apprised the Court that he has already, on 20th October, 2002, divorced his wife by proclaiming the same three times in presence of witnesses and also causing a paper publication, also communicating the same to the wife under a letter. 4) The learned Judicial Magistrate First Class, Loha by his order dated 27.2.2004 did not agree that there was a valid divorce to the wife and consequently, based on the available evidence, assessed the claim for maintenance to 3 Cri.Revn.Appln.No.411/05 the wife @ Rs.400/- per month from 1.6.2002. For arriving at such conclusions, the learned Judge placed reliance to the judgment of the Apex Court in the matter of Shamim Aara Vs. State of U.P. And Anr. - 2003 (2) B.CR.R. 660. The observations of the Apex Court are quoted, which are reproduced as under : “ The correct law of talaq as ordained by the Holy Quran is that (i)talaq must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters one from the wife's family and the other from the husband's family; if the attempts fail, talaq may be effected. So also it has held that, - "a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. The husband ought to have adduced evidence and proved the pronouncement of talaq and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed." 5) This legal position was considered by the learned JMFC in tune with the Judgment of Gowhati High Court and also Patna High Court in 4 Cri.Revn.Appln.No.411/05 the matter of Abdul Manna Vs. Saiara Khatoon and Ors. - 2000(4) Crimes 438. 6) The alleged date of divorce, as could be seen, was after filing of the application under Section 125 Cr.P.C. On the date of application, accordingly the wife/petitioner cannot be said to be a divorcee. The legal position in the matter of Shamim Ara is not adhered to by the respondent at the time of extending so-called divorce, as is permissible, under the Muslim Law. In an identically placed matter of Dagadu Chotu Pathan Vs. Rahimbi Dagdu Pathan & Ors., reported in 2003 Bom.CR (Cri) 251, the Full Bench of this Court, having considered the provisions of Section 125 of Cr.P.C. and also the provisions of Muslim Women (Protection of Rights from Divorce) Act, 1986, observed about eligibility and entitlement of the wife to claim maintenance. The document of Talaq in isolation has no sanctity in respect of a valid Talaq. The full Bench has also observed, mere existence of the document does not make the Talaq valid or legal. The factum of Talaq and the stages, it has preceded by are required to be proved before the Court, if disputed by the wife and mere intention of the husband while making such statement before the Court cannot be accepted to be a valid Talaq from the date of such statement was made before the 5 Cri.Revn.Appln.No.411/05 Court in any form. 7) The Hon’ble Apex Court in the matter of Shabana Bano Vs. Imran Khan - 2010 (1) SCC 666 : 2009 DGLS (Soft) 1281. reiterated the legal position in tune with Muslim Women (Protection of Rights on Divorce) Act, and in particular Sections 4 and 5 thereof. The Hon'ble Lordships in paragraphs 27, 29 and 30 has observed as under,- "27. The appellant's petition under Section 125 of the Cr.P.C. would be maintainable before the Family Court as long as appellant does not remarry. The amount of maintenance to be awarded under Section 125 of the Cr.P.C. cannot be restricted for the iddat period only. 29. Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi (supra) and Iqbal Bano (supra) 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. 30. 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 6 Cri.Revn.Appln.No.411/05 to claim maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry." 8) These vital aspects of the matter, coupled with the evidence, were not considered by the learned Sessions Judge. The learned Judge has gravely erred in allowing the husband’s revision virtually on mis-conception of law on the ground that after divorce of a Muslim wife, a petition under Section 125 Cr.P.C. would not be maintainable. The learned Sessions Judge again based his reliance to the Muslim Women (Protection of Rights on Divorce) Act, 1986, presumably held that there existed a divorce. The basic aspects of want of proof of Talaq and the sabotage to maintenance by husband, was overlooked. The object and scope of Section 125 Cr.P.C. is to ensure maintenance to those, who need such protective umbrella, from the person under an obligation. The wife is 48/50 years old, infirm, embattled. The husband by his whims of slap of few utterances need not be permitted to obliterate and tatter the duty to maintain his wife. 9) The order of rejection of maintenance in Revision is set aside. The order of grant of 7 Cri.Revn.Appln.No.411/05 maintenance recorded by the learned JMFC dated 24/27-2-2004 is confirmed. The revision is allowed to extent as above. Rule made absolute in the aforesaid terms. In view of disposal of the revision, Criminal Application No.2795/2008 for direction and fixing an early date of hearing is also disposed of. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/ Authenticated copy (BD VADNERE,PS)