CHAUHAN, J. - (1.) AGGRIEVED by the order dated 18.06.2011 passed by the Chief Judicial Magistrate, Jhunjhunu, whereby the learned Magistrate has rejected the petitioner's application for setting aside the proceedings, the petitioner has approached this court.
(2.) THE brief facts of the case are that the petitioner and respondent No.1, Sajida, were married on 18.12.2004 according to the Muslim law, rituals and rites. During their wedlock, two children were born, namely Mohammed Kaif, respondent No.2, and Kumari Sana, respondent No.3. However, as differences arose between the husband and wife, Sajida had no other option but to leave the matrimonial home. Since she was unable to maintain herself and the children, she filed an application under Section 125 Cr.P.C, for maintenance on 07.04.2010. The petitioner, as the respondent in the said case, submitted his reply. Subsequently, he also filed an application as a reply to the interim prayer made by Sajida. In this reply, he clearly pointed out that he had divorced Sajida on 18.12.2010. He further claimed that the information with regard to the divorce was sent to Sajida by registered A.D. However, she refused to accept the same. He further claimed that the information with regard to the divorce was also sent to the concerned Qazi. Therefore, according to the petitioner, Sajida was not even entitled to any maintenance. Hence, his prayer that the proceeding under Section 125 Cr.P.C, be set aside. However, vide order dated 18.06.2011, the learned Magistrate has dismissed the said application. Hence, this petition before this Court. Intzar Ali, the learned counsel for the petitioner, has vehemently contended that while Section 125 Cr.P.C is the general law with regard to the maintenance, Section Of The Muslim Women (Protection Of Rights on Divorce) Act, 1986 is the specific law. Relying on the case Of Mst. Bilkis Begum @ Jahanara vs. Majid Ali Gazi & Anr. (JT 2002 (Suppl.1) SC 115), the learned counsel has contended that once a muslim woman is divorced, her application under Section 125 Cr.P.C, is not maintainable. Therefore, the learned Magistrate should have dismissed the application filed under Section 125 Cr.P.C. Moreover, according to Section 5 Of Muslim Women (Protection Of Rights on Divorce) Act, 1986, once divorce has been given to a muslim woman, she and her husband are free to move an application that they shall be governed by Section 125 Cr.P.C. However, no such application has been moved by the non-petitioner No.1 and the petitioner. 3. Heard the learned counsel and perused the impugned order.
(3.) ADMITTEDLY , non-petitioner No.1 filed an application under Section 125 Cr.P.C. on 07.04.2010. Admittedly, she was not divorced on the said date. According to the petitioner, he allegedly divorced her on 18.12.2010. Thus, at least, from 07.04.2010 till 18.12.2010, non-petitioner No.1 continued to be a married muslim woman. Although the petitioner claims that he has divorced non-petitioner No.1 on 18.12.2010, it is a fact which needs to be established by him by submitting cogent evidence before the learned Magistrate during the course of trial. This plea cannot be accepted as a gospel truth till the cogent evidence is produced on this point. Moreover, the issue whether a valid divorce has been granted or not, is an issue that needs to be decided by the learned trial Court.;