1 WP-1702-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL WRIT PETITION NO. 1702 OF 2009 Shri Umarpharaq Mustafa Khan, ) Aged: 40 years, Occ: Service, ) R/o Raj Medical & General Stores, ) Sant Tukaram Nagar, Vallabhnagar, ) Near City Boy Tailors, Pimpri, Pune. ).. Petitioner (Orig.Respondent/Applicant) Versus 1. Smt. Farjana Umarpharaq Khan ) @ Farjana Jalaluddin Kazi, ) Aged Adult, Occ: Household, ) R/o Shirwal, Tal Khandala, ) Dist. Satara. ) 2. The State of Maharashtra ).. Respondents (Resp.No.1 - orig.Applicant) Mr. S.P.Salvi, Advocate, for the petitioner. Mr. Dilip Bodake, Advocate for the respondent No.1. Smt. A.A.Mane, APP, for the respondent No.2. CORAM: J.H.BHATIA,J. DATE : 27th July, 2010. JUDGMENT : 1. Rule. Rule returnable forthwith. Heard learned Counsel for the parties. 2 WP-1702-09.sxw 2. The respondent filed Criminal Misc. Application No.52/2006 under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 claiming amount of Rs.1,02,600/- on different counts. The petitioner had appeared with his counsel and had taken an adjournment. It appears that he and his Advocate did not turn up thereafter nor he filed any reply. On 13.3,2008, the learned J.M.F.C. Khandala, District Satara, passed the order and allowed the claim of the respondent. That order was challenged by the petitioner with a prayer that the said order be set aside and the matter be remanded back. However, the learned Session Court refused to remand the matter and passed the impugned judgment and order dated 7.5.2009 in Revision Application No.153/2008 reducing the amount to be paid to the respondent No.1 to Rs.51,000/-. 3. The record reveals that the respondent No.1 was given divorce on or about 25.12.1996 and the application under Section 3 of the Act was filed in 2006 i.e. almost 10 years after divorce. Under Section 3 of the Act, the woman is entitled to claim reasonable and fair provision and maintenance to be paid to her within the Iddat period, maintenance for the children for period of two years from the date of births of the children and an amount equal to Mahr or dower and all the articles which were given to her before, at the time of or after the marriage either by her relatives and friends or by husband or his relatives and friends. 3 WP-1702-09.sxw However, it appears that the total claim of Rs.1,02,600/- included amount of Rs. 8000/- being the value of the Godrej Cupboard and utensils given to her at the time of marriage and an amount of Rs.2100/- towards Mahr and maintenance during the iddat period. The remaining amount does not pertain to any articles given to her a the time of marriage by either side. Most of the amounts are pertaining the expenses related to marriage, for example, expenditure at the time of engagement, expenditure on decoration, expenditure on food and entertainment of the guests at the time of marriage, expenditure on Band and horse and transport charges of the Barat. Not only this, the amount also includes amount of Rs.20,000/- towards her medical expenses. One item is about 2-1/2 Tola gold in the form of chain and ring given to the bridegroom and amount of Rs.1,000/- given to him for scooter. In fact, prima facie, these items also do not appear to be pertaining to the articles given to her. It appears that the Courts below did not consider her claim in the light of the provisions of sec. 3 of the Act while passing the impugned orders. 4. It is true that the petitioner had appeared with Advocate and had not filed any reply. It is contended in para 4 of the petition that the Advocate, who was engaged by the present petitioner to defend the matter before the trial Court found to be maternal uncle of the respondent and possibly because of that reason, 4 WP-1702-09.sxw he did not file reply and allowed the application to be disposed of without contest. Taking into consideration these circumstances, in my considered opinion, it will be in the interest of justice to remand the matter to the trial Court. 5. For the aforesaid reasons, - (a) Subject to payment of costs of Rs.2,000/- by the petitioner to the respondent, the petition is allowed and the impugned orders passed by the both the Courts below are hereby set aside and the Criminal Application No.52/2006 is hereby remanded back to the Court of J.M.F.C., Khandala, District Satara, for hearing and disposal of the same afresh after giving an opportunity to the present petitioner/opponent in the said proceedings, to file a say/written statement. The parties shall also be given reasonable opportunity of leading evidence. (b) The parties shall appear before the trial Court on 23.8.2010 and the trial Court shall hear and dispose of the matter, preferably within three months thereafter. Rule made absolute accordingly. 5 WP-1702-09.sxw 6. Parties shall act upon authenticated copy of this Order. (J.H.BHATIA,J.)