R.S.CHAUHAN,J. - (1.) AGGRIEVED by the order dated 18.6.2011 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 CrPC for maintenance on 7.4.2010. 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 an interim maintenance. Hence, his prayer that the proceedings under Section 125 be set aside. However, vide order dated 18.6.2011, the learned Magistrate has dismissed the said application. Hence, this petition before this Court. Mr. Intzar Ali, the learned counsel for the petitioner, has vehemently contended that with Section 125 CrPC is the general law with regard to the maintenance, Section 3 of The Muslim Women (Protection of Rights on Divorce) Act, 1986 is the specific law. Relying on the case of Mst. Biikis Begum @ Jahanara v. Majid Ali Gazi & Anr.1 the learned counsel has contended that once a Muslim woman is divorced, her application under Section 125 CrPC, is not maintainable. Therefore, the learned Magistrate should have dismissed the application filed under Section 125 CrPC. 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 CrPC (sic). However, no such application has been 1. 2002(2)WLC (SC) 104: JT2002 (Suppl. 1) SC 115. moved by the non- petitioner No.1 and the petitioner. Heard the learned counsel and perused the impugned order. Admittedly, non-petitioner No.1 filed an application under Section 125 CrPC on 7.4.2010. Admittedly, she was not divorced on the said date. According to the petitioner, he allegedly divorced her or 18.12.2010. Thus, at least, from 7.4.2010 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 A bare perusal of the order dated 18.6.2011 clearly reveals that the learned Magistrate has rejected the application on the ground that the plea raised by the petitioner that he has divorced non-petitioner No. 1 needs to be proven during the course of trial. Since the issue with regard to the grant or non-grant of divorce needs to be thrashed out, this Court is of the opinion that the learned Magistrate was justified in dismissing the application The case of Mst. Biikis Begum @ Jahanara (supra) is distinguishable on the factual matrix itself. In the said case, initially the application had been filed under Section 125 CrPC. Subsequently, the appellant was granted divorce by her husband. She moved an application under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. However, her application was dismissed on the ground that it had to be moved by both the parties i.e., by the husband and the wife and it could not be moved unilaterally by the wife. The appellant therein challenged the order of the Magistrate before the High Court. However, even the High Court dismissed the revision petition filed by her and confirmed the order of the Magistrate. The issue before the Apex Court was, after a Muslim woman has been divorced by her husband, whether she could maintain the application under Section 125 CrPC claiming maintenance for herself and for her children or not? The Apex Court opined that as far as the children are concerned, the application under Section 125 CrPC was certainly maintainable. However, the divorced Muslim woman is entitled to receive her dues according to the Muslim Women (Protection of Rights on Divorce) Act, 1986. In case, she has not taken recourse, she is free to do so. In the present case, non-petitioner No.1 has never filed an application under Section 5 of the Act. Therefore, the issue is whether she can maintain the application under Section 125 in case she was divorced during the pendency of the said application or not? In the case of Shabana Bano v. Imran Khan2 the Hon'ble Supreme Court is of the opinion that in case the person is divorced during the pendency of the application under Section 125 CrPC the said application is maintainable as long as the wife does not remarry. Since in the present case, there is no application made by the petitioner that non-petitioner No.1 has remarried, her application under Section 125 CrPC is certainly maintainable. Moreover, till the factum of divorce is proven through cogent evidence, the application under Section 125 CrPC would be maintainable. In case the petitioner succeeds in proving the fact that he had legally divorced non-petitioner No.1 on 18.12.2010, then it is for the learned Magistrate to decide whether non-petitioner No.1 is still entitled for maintenance under Section 125 CrPC from the date of filing of the application i.e., 7.4.2010 till 18.12.2010 or not.
(3.) FOR the reasons stated above, this court 2. 2010(1) Apex Court Judgments 092 (SC):2010(1) WLC(SC) Cri. 148: 2010 Cr LR (SC) 50. does not find any illegality or perversity in the impugned order. Hence, this petition is devoid of any merit; it is, hereby, dismissed Petition dismissed.;