Ainul Haque vs State of Jharkhand

Mr. Rongon Mukhopadhyay, J.—Heard Mr. Sanjay Prasad, learned counsel for the petitioner and Mr. Pratiush Lala, learned counsel appearing for the opposite party no. 2.

This application is directed against the order dated 22.09.2010 passed by the learned Principal Judge, Family Court, Dhanbad in M.P. Case No. 315 of 2007 by which the application preferred by the opposite party no. 2 u/s 125 Cr. P.C. has been allowed and the petitioner has been directed to make payment of monthly maintenance of Rs. 1000/- to the opposite party no. 2.

It has been submitted by the learned counsel for the petitioner that there is apparent error in the impugned order as the parties were never asked to produced an affidavit as to whether they would like to be governed under the Muslim Woman (Protection of Rights on Divorce) Act or u/s 125 Cr. P.C. Learned counsel further submits that the opposite party no. 2 is a divorced muslim woman and therefore she cannot be able to claim maintenance u/s 125 Cr. P.C.

At this Mr. Pratiush Lala, learned counsel for the opposite party no. 2 has relied on the judgment passed in the case of "Shabana Bano v. Imran Khan", reported in 2010 (1) Eastern Criminal Cases (SC) 61 and has stated that an application u/s 125 Cr. P.C. against the divorce woman is also maintainable. It has also been submitted that the petitioner has not been taken the plea which he has taken here in his showcause before the learned court below and in fact the petitioner did not produce any evidence and has left taking steps. It has been submitted that the amount of maintenance is so meager and considering the entire facts of the case, this application deserves to be rejected.

It appears that the opposite party no. 2 has been divorced by the petitioner and she claims maintenance u/s 125 of the Cr. P.C. The petitioner had although filed a show-cause but has not made any preliminary objection when the proceedings got underway. It further appears from the impugned order that neither the petitioner had produced any witness to contradict the statement of the opposite party no. 2 nor he had taken any proper step in the proceedings.

In the case of "Shabana Bano v. Imran Khan" (Supra) the Hon''ble Supreme Court while considering as to whether an application u/s 125 Cr. P.C. is maintainable to the divorced muslim woman or not was held as follows:-

"22. Thus, from the above mentioned provisions it is quite discernible that a Family Court established under the Family Act shall exclusively have jurisdiction to adjudicate upon the applications filed under Section 125 of Cr. P.C."

"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 Igbal 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 woman."

The circumstances enumerated above do suggest that the application which has been preferred by the opposite party no. 2 u/s 125 Cr. P.C. was maintainable and on proper assessment of the income of the petitioner a meager amount of Rs. 1000/- per month was awarded in favour of the opposite party no. 2. There being no cause to interfere in the impugned order dated 22.09.2010 passed by the learned Principal Judge, Family Court, Dhanbad in M.P. Case No. 315 of 2007, this application fails and the same is, accordingly, dismissed.