JAITUNBI MUBARAK SHAIKH Vs. MUBARAK FAKRUDDIN SHAIKH

JUDGEMENT

(1.) THIS Criminal Writ Petition is filed by a divorced Muslim woman. In view of the reference to a division Bench by T. K. Chandrashekhara Das, J. the following questions of law arise for our determination : -

(2.) THE petitioner-wife had filed Misc. Application No. 61 of 1980 under section 125 of the Code of Criminal procedure, 1973 (for short Code ) for maintenance against respondent No. 1 husband. By an order dated 26th June, 1981 the Magistrate fixed the amount of maintenance at Rs. 60/-p. m. On the 6th October, 1986 the wife initiated the present proceedings by filing Maintenance Application No. 297 of 1986 under section 127 of the Code for enhancement of maintenance claiming that she was entitled to Rs. 500/- per month. In the application for enhancement, the wife contended that she was ill-treated by her husband and was driven out of the matrimonial home, pursuant to which she had made an application for maintenance. However, having regard to the general inflationary tendencies; it was not possible for her to maintain herself in the meagre sum of rs. 60/- per month. She was unwell but was not able to afford the medicines needed by her. She alleged that her husband had improved his financial condition. He had secured a permanent job in the Fire Brigade of Baramati Municipal council and was earning Rs. 1000 to Rs. 1200/- per month. He was also trading in cattle in Baramati and Phaltan Markets and was earning Rs. 500 to Rs. 700 per month. The wife, therefore, claimed that the amount of Rs. 60/- should be enhanced to Rs. 500/- per month.

(3.) IN reply to this application dated 6-10-1986, the husband filed his written statement on the 1st November, 1987. He denied the allegations made by the wife. He contended that he had already given a talak to his wife on 29-10-1987 and he had informed her by a notice sent by registered post to that effect which was refused by her. He had sent an amount of Rs. 125/- towards Mahr and Rs. 150/-towards maintenance for the iddat period. However, since the wife had refused to accept the said amount, the husband had deposited the said amount in the Magistrate s Court. The husband specifically contended that in view of the provisions of the 1986 Act, the application was not maintainable in the Magistrate s Court. Reliance was placed on the provisions of sections 5 and 7 of the 1986 Act, to which we will make a reference later.