MUMTAZBEN JUSABBHAI SIPAHI Vs. MAHABUBKHAN USMANKHAN PATHAN
LAWS(GJH)-1989-9-17
HIGH COURT OF GUJARAT
Decided on September 11,1989

Mumtazben Jusabbhai Sipahi Appellant
VERSUS
Mahabubkhan Usmankhan Pathan Respondents


Referred Judgements :-

ARAB AHMEDBIN ABDULLA VS. ARAB BAIL MOHMUNA SAIYADBHAI [REFERRED TO]


JUDGEMENT

K.TRIVEDI,J. - (1.)HEARD Mr. B. P. Munshi learned Advocate for petitioner, Mr. D.M, Shah, learned Advoeate for respondent No, 1 and Ms, B.R, Gajjar, learned APP for respondent No, 2-State.
(2.)THE petitioner is a Mahomedan by religion and is the wil'e of respondent No, 1. The petitioner filed Cri. Misc. Appln. No. 1098/90 in the Court of learned CJM, Jamnagar u/s, 25 of Cr.P.C., 1973 (here-in-after referred to as "the Code") claiming maintenance from the respondent No. 1 on the ground that the respondent No. 1 has neglected her and has refused to main­tain her despite having sufficient means. That vide order, dated 16-3-93 the learned CJM, Jamnagar awarded amount of Rs. 350 p.m. to the petitioner by way of main­tenance payable by the respondent No, 1 w.e.f. 24-7-90. The Court has also awarded costs of Rs. 200 to be paid by the respon­dent No. 1 to the petitioner.
The respondent No. 1 carried the matter to the Sessions Court at Jamnagar by filing Cri. Revn. Appln. No. 46/93, That by order, dated 16-6-97 the learned Addl. Sessions Judge, Jamnagar allowed the revision application and set aside the above stated order of maintenance passed by the learned CJM, Jamnagar. Being ag­grieved and dissatisfied by the said order of the learned Addl. Sessions Judge, Jam­nagar the petitioner has filed the present revision application.

(3.)MR , Munshi, learned Advocate ap­pearing for the petitioner has taken me through the impugned judgment and ordors which are produced at running piigcs 1 to 22 of the file and bus urged that tte learned Addl, Sessions Judge, Jamnaaar has committed error of law by holding that respondent No, 1 having given "Taluq" to the petitioner, the petitioner is not eligible to claim maintenance under Sec­tion 125 of the Code. It is also submitted by Mr, Munshi that the learned Addl. Ses­sions Judge has disregarded the rule settied by this Court in the mailer of Arah AHemadia Abdulla v. Amb Bail Mohmnnti Saiyadbhai, AIR 1988 Guj 141, and has held that in the facts and circumstances of the case the petitioner-wife was not en­titled to claim maintenance under Section 125 of the Code, which is contrary to the settled proposition of law and thereby the impugned judgment and order deserves to be quashed and set aside and tbe orders of the learned CJM, Jamnagar, dated 16-3-1993 in the proceedings of Cri, Misc, Appln. No. 1098/90 is required 10 be res­tored. Mr, D,M. Shah, learned Advocate appearing for respondent No. 1 has placed reliance on the observations made by the learned Addl. Sessions Judge in para II of the impugned judgment to contend that no sooner there is a declaration of divorce before the Court, the Court has no juris­diction to grant maintenance under Section 125 of the Code. That the divorced wife would be entitled 10 only main­tenance and other benefits as provided under the provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as "the Muslim Women Act, 86"), Mr, Shah has attempted to support the im­pugned judgment by referring to the provisions of Muslim Women Act, 1986.


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