HASEENABI D/O WASAL BAIG Vs. KADIR BAIG S/O RASUL BAIG

JUDGEMENT

(1.) This order shall also govern disposal of Cr. R. No. 1147/06 filed by the same petitioner against the same respondent against the order passed by Additional Sessions Judge, Shujalpur in Criminal Revision No. 256/2005. A copy of this order be retained in the record of aforesaid Criminal Revision also.

(2.) Invoking extraordinary inherent jurisdiction of this Court available under Section 482 of Cr.P.C., petitioner has filed this petition for quashment of the order passed by Additional Sessions Judge, Shujalpur, Distt. Shajapur in Criminal Revision No. 227/05 and Criminal Revision No. 256/2005 on 5th October, 2006, whereby the revision petition filed by the petitioner was dismissed and that of the husband/respondent was allowed by that Court.

(3.) Short facts of the case are that the petitioner and respondent got married in the year 1985 and from their wedlock a girl was born, who is about 15 years of age. In the year 1993 an application under Section 125 of Cr.P.C. was filed by the present petitioner seeking maintenance for herself and her child. The application was allowed by the Court of Magistrate vide order dated 05.01.2000. This order was challenged by the husband/respondent by way of criminal revision, which was allowed by the Court of Sessions and the matter was remanded back to the Court of Magistrate for giving opportunity to the respondent/husband to adduce evidence. After remand order evidence was recorded and then again the application was decided on 12.9.2003 with a finding that the plea of divorce as raised by the husband was not proved and the petitioner was found entitled for maintenance @ Rs. 800/- per month for herself and @ Rs. 500/- per month for her daughter. This order was again challenged by way of another revision before Court of Sessions. That revision petition was dismissed, then the husband/respondent approached this Court by filing petitioner under Section 482 of Cr.P.C., which was also dismissed. Thus the order of maintenance passed in favour of the petitioner on dated 12.9.2003 became absolute. After the first round of litigation against on 24.7.2004 an application under Section 127 of Cr.P.C. was filed by the husband/respondent, on the ground that since oral divorce had already been effected from 11.5.1997 and vide Ex. P-1 a notarized "Talaqnama" was also executed on dated 23.3.2000 and its intimation was given to wife/petitioner and the "Talaqnama" was also certified by "Shehar Kazi", therefore, divorce had been effected and the respondent/husband is not liable to pay any amount towards the maintenance to the petitioner after the divorce. No amount was payable to the daughter also because she had already attained the age of majority. In reply to the application, present petitioner contended that vide order dated 12.9.2003 it was already held by the Court that no divorce had taken place and daughter had also not attained the age of majority, therefore, they are entitled for maintenance as per order dated 12.9.2003. It has also been averred in the reply that since after passing the above order there was no change in circumstance, therefore, the previous order could not be modified under Section 127 of Cr.P.C., which is prerequisite for the order passed under the above section. After hearing both the parties trial Court partly allowed the application filed under Section 127 of Cr.P.C. and held that present petitioner is entitled to get maintenance till the date of order i.e. 10.9.2005 and not afterwards. Then revision petitions were filed by both the parties before Court of Sessions. The order of Sessions Court is impugned in this petition, wherein it was held that the petitioner received intimation of "Talak" on 24.11.2004, therefore, she is entitled for maintenance till that date only and thereafter till the period of eighty seven days i.e. "Iddat" period.