N. K. Mehrotra, J. - (1.) HEARD Sri Dharmendra Singh, advocate for the revisionist and Sri Mohd. Sayeed, advocate for the opposite party on admission and final hearing.
(2.) THIS is a criminal revision under Section 397 of the Code of Criminal Procedure against the judgment and order dated 6.11.1999, passed by the IInd Additional Sessions Judge, Unnao in Revision No. 28 of 1999, Ateeque Khan v. Smt. Farhana and another. After hearing the learned counsel for the parties and perusal of the record, it appears that the revisionist No. 1 Smt. Farhana moved a petition under Section 125 of the Code of Criminal Procedure alleging therein that she is married wife of the opposite party and the revisionist No. 2 Km. Azara is the daughter of both, the revisionist No. 1 and the opposite party. It was alleged that the revisionist No. 1 was cruelly treated on non-fulfilment of the demand of dowry and she was left in her matrimonial house and she is unable to maintain herself. It was also alleged that the opposite party is able to maintain her. Objections were filed by the opposite party-husband mainly on the ground that the divorce has taken place according to the Muslim Personal Law and, therefore, the revisionist No. 1-wife is not entitled to the maintenance under Section 125 of the Code of Criminal Procedure. The revisionist No. 1 moved an application on 16.9.1998 and the opposite party filed an objection to this application. In this application, the revisionist No. 1 wife requested the trial court that the opposite party be directed to provide particulars about the date, month and year of the divorce and the place where the divorce was given and the names of the witnesses in whose presence the divorce was pronounced. The learned Magistrate after hearing the parties and after taking into consideration the application of the revisionist No. 1 wife and the objection of the opposite party held that no evidence to prove the alleged divorce has been filed and there is no bar in entertaining the petition filed on behalf of the Km. Azara, the daughter of the opposite party because it is admitted that Km. Azara, is the daughter of the opposite party. So far as the petition on behalf of the revisionist No. 1 is concerned, the trial court has held that since upto that stage no evidence in support of the alleged divorce was filed, the petition under Section 125 of the Code of Criminal Procedure filed by the revisionist No. 1 could be entertained. After recording these findings, the learned trial court disposed of the application of the revisionist and the objection of the opposite parties and fixed a date for recording evidence of the revisionist.
(3.) THE aforesaid order of the learned Magistrate was challenged in Criminal Revision No. 28 of 1999. The revisional court held that Smt. Farhana, the revisionist had filed a Civil Suit No. 108 of 1998 for permanent prohibitory injunction restraining the opposite party from remarrying and in that case the opposite party has proved the date of divorce and has filed the deed of divorce. Therefore, the revisional court held that the petition under Section 125 of the Code of Criminal Procedure for the divorced-wife cannot be entertained. The revisional court set aside the order dated 20.1.1991 passed by the learned Magistrate. It is against this order passed in revision ; the instant revision has been filed in this Court by the revisionists. It has been contended by the revisionist before this Court that the learned Sessions Judge has illegally set aside the entire order dated 20.1.1999, because the petition under Section 125 of the Code of Criminal Procedure on behalf of the revisionist No. 2 cannot be rejected on the ground that the revisionist No. 1 was a divorced wife. The revisionist No. 1 has further contended that the divorce was not proved and the divorce was disputed and it was challenged in Civil Suit No. 108 of 1998 by the revisionist and the revisional court without recording the finding that the divorce was valid in law has set aside the order of the learned Magistrate by which the revisionists were directed to adduce evidence in support of the petition under Section 125 of the Code of Criminal Procedure.;