- (1.) This revisional application is directed against the order dated 11.7.1993 passed by the learned Judicial Magistrate, 5th Court, Howrah in Misc. Case No. 176/2000 and thereby dismissing the application filed by the present petitioner as husband opposite party in the Court below alleging that the petition under section 125 of Cr. PC is not maintainable.
(2.) Learned Advocate for the petitioner contended that the opposite party No. 2 was married with the petitioner in 1989 according to their Muslim rituals and customs and they are Muslim by faith. At the time of marriage of petitioner with opposite party No. 2, she was a divorcee. The opposite party No. 2 used to spend most of the time in her parent's house and finally taking away gold ornaments and other articles she went away to her father's house. The opposite party No. 2 tried to create pressure upon him in different ways to obtain property and money. Finding no other alternative to save his life and property, he divorced opposite party No. 2 wife on 28.3.95 under the provisions of Mahommedan law before Marriage Registrar and Kazi and factum of divorce i.e. talaq was duly communicated to the opposite party. On 26.7.2002 the petitioner received a notice along with copy of application under section 125 of Cr. PC filed by opposite party No. 2 claiming maintenance for herself from him. Receiving the notice the petitioner appeared before the learned Judicial Magistrate, 5th Court, Howrah and on 31.5.03 he filed the petition alleging that applicantion under section 125 of Cr. PC is not maintainable. He also annexed the talaqnama as well as letter of communication of talaqnama to opposite party No. 2 with his application. But the learned Magistrate by the impugned order rejected the application.
(3.) Learned Advocate for the petitioner further contended that section 125 of Cr. PC is not applicable in case of a divorced Muslim wife. She can claim maintenance in view of provisions of Muslim Women (Protection of Rights on Divorce) Act (hereinafter called the Act). In view of the provisions of the said Act, sections 125 to 128 of Cr, PC are not applicable in the instant case unless the parties in terms of section 5 of the Act exercises option for provisions of section 125 of Cr. PC. He contended that the learned Magistrate erred in law by dismissing his application filed before the learned Magistrate contending that section 125 Cr. PC application is not maintainable. Accordingly, the impugned order should be set aside and the instant proceeding should be dropped or quashed. In support of his contention he cited the decisions reported in 2002 C Cr LR (SO 1 and 2002 C Cr LR (Cal) 39.;