- (1.) HEARD learned counsel for the parties.
(2.) BRIEFLY stated the facts of the case are that respondent Safia Bano filed an application under Section 125 Cr.P.C. in the Court of Additional Chief Judicial Magistrate, Sawaimadhopur for grant of maintenance. Learned Additional Chief Judicial Magistrate, in view of judgment of this Court in Bunti Vs. State of Rajasthan, 2007(2) R.C.C., took a view that divorcee Muslim woman is not entitled to get maintenance under Section 125 Cr.P.C., but she is entitled to get maintenance only under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act of 1986'). Being aggrieved with the same, respondent preferred a revision petition before the Sessions Judge and the same was transferred for disposal to the Court of Additional Sessions Judge, Sawaimadhopur. Learned Additional Sessions Judge observed that application under Section 125 Cr.P.C. may be treated as an application under the provisions of the Act of 1986. Consequently, revision petition was allowed and impugned order passed by the Additional Chief Judicial Magistrate was set aside and the case was remitted back to the Court of Additional Chief Judicial Magistrate, Sawaimadhopur for deciding the case, afresh, in the light of judgment of Honourable Supreme Court, referred in its order. Being aggrieved with the same, husband-petitioner has preferred this revision petition. The main submission of the learned counsel for petitioner is that respondent had already filed an application under Section 3 of the Act of 1986 for grant of maintenance and the same was disposed off, therefore, present application under Section 125 Cr.P.C. could not have been converted into an application for maintenance under the provisions of the Act of 1986, otherwise, it will amount to second application, which is not permissible in law, therefore, the impugned order of remand passed by the learned Additional Sessions Judge may be set aside. Learned counsel for respondent submitted that first application of respondent under the provisions of the Act of 1986 was only in respect of 'Mehar' and dowry amount and the same was not for grant of maintenance, therefore, respondent is entitled to pursue her application for maintenance under the provisions of the Act of 1986. It was, therefore, submitted that there is no illegality in the impugned order of remand passed by the learned Additional Sessions Judge. I have considered the submissions of learned counsel for the parties and examined the impugned judgments passed by both the Courts below.
(3.) FROM the facts narrated above, it appears that application under Section 125 Cr.P.C. was filed by respondent Safia Bano for grant of maintenance, which was dismissed on the ground that divorcee Muslim woman is entitled for maintenance only under the provisions of the Act of 1986, therefore, application under Section 125 Cr.P.C. is not maintainable. Revisional Court while setting aside the order passed by the Additional Chief Judicial Magistrate, remanded the matter to the Additional Chief Judicial Magistrate, after observing that application under Section 125 Cr.P.C. may be treated as an application under the provisions of the Act of 1986 and matter be decided afresh. As per submission of the learned counsel for petitioner, present application under Section 125 Cr.P.C. could not have been treated as an application under the provisions of the Act of 1986 as respondent had already filed application under the provisions of the Act of 1986, whereas as per the submission of the learned counsel for respondent, earlier application was only in respect of 'Mehar' and dowry amount and not for maintenance. Be that as it may, the learned Revisional Court has only remanded the matter to the Court of Additional Chief Judicial Magistrate for deciding the matter, afresh, after treating the application under Section 125 Cr.P.C. as an application under the provisions of the Act of 1986, in accordance with law and as per observations of the Honourable Apex Court. ;