Shaukat Ibrahim Qureshi vs Faridabanu Hasambhai Qureshi and Another

A.L. Dave, J.—The Petitioner in this petition filed under Article 227 of the Constitution of India challenges the order passed by the Sessions Court, Valsad at Navsari, in Criminal Revision Application No. 71 of 1993, dated 2-8-1995, whereby the Sessions Court set aside the order passed by the Chief Judicial Magistrate, Valsad at Navsari, below Exh. 9 in Misc. Criminal Application No. 126 of 1992 and directed the Chief Judicial Magistrate to hear the application of Respondent No. 1 herein filed u/s 125 of the Code of Criminal Procedure. The Chief Judicial Magistrate by order below Exh. 9 dated 21-7-1993 had dismissed the application of Respondent No. 1 herein filed u/s 125 of the Code of Criminal Procedure on the ground that Respondent No. 1 herein is a divorced Muslim woman and she can claim maintenance only under the Muslim Women (Protection of Rights on Divorce) Act, 1986 and not u/s 125 of Code of Criminal Procedure.

Heard the learned Advocate Mr. Sunil Patel for the Petitioner, learned Advocate Mr. Zubin Bharda for Respondent No. 1 and learned A.P.P. Mr. Parikh for Respondent No. 2-State.

Learned Advocate Mr. Patel has tried to impress upon this Court that when a special Act is enacted, general provisions contained in Section 125 of Code of Criminal Procedure would not apply, particularly when there is a special provision under the said Act.

However, this Court does not find any error to have been committed by the Sessions Court in directing the Chief Judicial Magistrate to hear and decide the application of Respondent No. 1 herein u/s 125 of Code of Criminal Procedure in light of the decision of the Apex Court in the case of Iqbal Bano Vs. State of U.P. and Another, where, in a similar situation, a view is taken by the Apex Court that if a divorced Muslim woman applies u/s 125 of Code of Criminal Procedure, it is open to the Court to treat it as an application under the Muslim Women (Protection of Rights on Divorce) Act, 1986. In Shabana Bano v. Imran Khan 2010 (1) GLR 223 (SC), the Apex Court has taken a view that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry, and this being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim woman. The Apex Court also crystallized the right of divorced Muslim woman by observing that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband u/s 125 of the Code of Criminal Procedure after the expiry of period of iddat also, as long as she does not remarry. The Sessions Court, was therefore, justified in setting aside the order of the Chief Judicial Magistrate and directing the Chief Judicial Magistrate to decide the application on merits.

The petition has to fail and stands dismissed. Rule discharged. Interim relief, if any, shall stand vacated. R. and P., if called for, shall be sent back to the Court below.