Shakeel Ali vs Baby Farida on 30 November, 2017

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR

Criminal Revision No.2430/2015

Shakeel Ali.

Vs.

Baby Farida.

Present : Hon’ble Ms. Vandana Kasrekar, J.

Mr. Harishchand Kohli, learned counsel for the
applicant.

Mr. Ankit Saxena, learned counsel for the respondent.

O R D E R

(30.11.2017)

The applicant has filed this criminal revision

challenging the order dated 27.07.2015 passed by Family

Court, Bhopal in M.J.C. No.42/2014.

2. The respondent is a divorced wife of the

applicant. The divorce between the parties took place on

13.02.1999 as per Muslim Law before two witnesses. The

respondent voluntarily accepted the Talak and had taken

dowry and accepted the Meher money and Iddat

expenses. The respondent has also filed an application

under Section 125 of the Code of Criminal Procedure
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(hereinafter in short referred to as “the Code”) and

claimed maintenance for herself as well as on behalf

of son Saif Ali. In the aforesaid case, the compromise

has arrived at between the parties and has foregone

her claim without future maintenance and agreed for

maintenance at the rate of Rs.5,00/- per month for

her son. Accordingly, the compromise order was

passed on 17.05.1999 on the basis of mutual

compromise and the applicant has paid Rs.20,786/-

towards Meher money and Rs.2400/- for Iddat period

and she has foregone future maintenance for her. The

applicant in the meanwhile entered into second

marriage and has continued to pay Rs.500/- towards

maintenance to his son.

3. The respondent again in the year 2003 filed

an application under Section 3 of the Muslim Women

(Protection of Rights on Divorce) Act, 1986 (in short

referred to as “the Act, 1986”). The said application

was dismissed by the Judicial Magistrate First Class,

Bhopal by the order dated 21.07.2003 on the ground

that the earlier compromise has arrived at between
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the parties on 17.05.1999 and no appeal or revision

was filed against the said order. After couple of years,

the respondent has filed an application under Section

127 of the Code for enhancement of maintenance for

her son. The trial Court vide order dated 05.02.2013

has allowed the application and has granted

maintenance of Rs.5,000/- per month to the son. The

respondent thereafter again filed an application under

Section 3 of the Act, 1986. The same was disposed of

vide order dated 17.01.2014. Although the applications

filed by the respondent under Section 125 of the Code

and Section 3 of the Act, 1986 has become final, the

respondent again filed an application under Section

125 of the Code against the applicant for grant of

maintenance. In the said application, she has

suppressed the fact that she is working as teacher in

school and earning Rs.1,000/- per month. The

applicant has filed the reply to the said application

and submits that the respondent is working as a

teacher and she is able to maintain herself.

Respondent is living in her own house with her

brothers. The applicant has also raised legal issue
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Cr.R.R. No.2430/2015

regarding maintainability of application under Section

125 of the Code. The family Court without appreciating

the evidence and law, by the impugned order dated

27.07.2015 was pleased to allow the application filed

by the respondent and directed to pay maintenance of

Rs.3,000/- to the respondent. Being aggrieved by that

order, the applicant has filed the present revision.

4. Learned counsel for the applicant submits

that the order passed by the Family Court is illegal and

arbitrary. It is submitted that the family Court while

allowing the application filed by the respondent has

failed to consider that earlier application has been

filed by the respondent under Section 125 of the Code

as well as under Section 3 of the Act, 1986 and in

that cases compromise has been arrived at between

the parties and in the light of the said compromise,

the respondent has received an amount of Meher as

well as expenses for Iddat period. Therefore, once the

matter has been compromised between the parties,

the respondent is not entitled to get maintenance. It

is further submitted that the Family Court while
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Cr.R.R. No.2430/2015

passing the said order has not considered the

judgment passed by this Court in the case of

Shabana Bano (Smt.) Vs. Imran Khan , 2009 (1)

JL J 106. In the light of the said decision, it is

submitted that as per the Muslim Law, the respondent

is not entitled to get maintenance after Iddat period.

It is further submitted that the family Court has failed

to consider that the respondent is working woman and

she is working as a teacher and is also earning, which

is sufficient to maintain herself.

5. Learned counsel for the respondents filed

the reply and it is submitted that the application under

Section 125 of the Code is maintainable in light of the

decision passed by the Apex Court in the case of

Danial Latifi Vs. Union of India , (2001) 7 SCC 740

and Iqbal Bano Vs. State of Uttar Pradesh ,

(2007) 6 SCC 785, wherein the Apex Court has held

that Muslim divorce woman is entitled to claim

maintenance from her husband unless she gets

remarry. Thus, as per the said judgment, the

respondent is entitled to get the maintenance. It is
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Cr.R.R. No.2430/2015

further submitted that the application filed by the

respondent under Section 125 of the Code has been

preferred in different circumstances and there is no

bar under the law for preferring the second

application. The applicant is working as an Electrician

at Rail Coach Factory and drawing a monthly salary of

Rs.35,000/- per month and therefore, he capable to

maintain the respondent.

6. Heard learned counsel for the parties as

well as perused the record. From perusal of the

record, it reveals that the respondent has filed an

application under Section 125 of the Code before the

family Court, Bhopal. During pendency of the said

application, compromise has been arrived at between

the parties, in which the respondent has undergone

her claim for future maintenance and agreed for

maintenance of Rs.5,00/- per month for her son.

Thereafter, again the respondent has filed an

application under Section 3 of the the Act, 1986. The

said case was also decided on 17.05.1999 on the basis

of mutual compromise. In the year 2003, the
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Cr.R.R. No.2430/2015

respondent has again filed an application under

Section 3 of the the Act, 1986, which was dismissed

by Judicial Magistrate First Class, Bhopal vide order

dated 21.07.2003 on the ground of Res-judicata .

Against the aforesaid order, no revision or appeal has

been filed and the same has attained finality.

Thereafter, the respondent has filed an application

under Section 127 of the Code for enhancement of

maintenance amount for her son. The family Court

vide order dated 05.02.2013 has enhanced the said

amount to Rs.5,000/- per month. Inspite of the

applications filed by the respondent under Section 125

of the Code and under Section 3 of the Act, 1986

have been dismissed by the Competent Court. The

respondent again filed an application under Section

125 of the Code, which is allowed and Rs.3,000/- is

granted to the respondents for her maintenance.

Against the said order, the applicant has filed the

present revision. Learned counsel for the applicant has

raised an objection with regard to maintainability of

the application under Section 125 of the Code. It is

submitted that after taking divorce, the respondent is
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Cr.R.R. No.2430/2015

not entitled to get maintenance. From perusal of the

order, it reveals that the objection regarding

maintainability of the application has already been

decided by the family Court vide order dated

06.03.2014 and the said order has not been

challenged by the applicant before any forum and thus

it has attained finality. Learned counsel for the

applicant has contended that being divorced woman,

the respondent is not entitled to get maintenance and

for the said purpose has relied on the judgment

passed by this Court in the case of Shabana Bano

( supra ). Learned counsel for the respondent

contended that the decision cited by learned counsel

for the applicant has been overruled by the Apex Court

between the parties. Paragraphs No.21 to 23 of the

aforesaid decision reads as under :

“21. The appellant’s petition under

Section 125 CrPC would be

maintainable before the Family Court

as long as the appellant does not

remarry. The amount of maintenance

to be awarded under Section 125 CrPC
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Cr.R.R. No.2430/2015

cannot be restricted for the iddat

period only.

22. The learned Single Judge

appeared to be little confused with

regard to different provisions of the

Muslim Act, the Family Act and CrPC

and thus was wholly unjustified in

rejecting the appellant’s revision.

23. Cumulative reading of the

relevant portions of the judgments of

this Court in Danial Latifi and Iqbal

Bano would make it crystal clear that

even a divorced Muslim woman would

be entitled to claim maintenance from

her divorced husband, as long as she

does not remarry. This being a

beneficial piece of legislation, the

benefit thereof must accrue to the

divorced Muslim women.”

Thus, in the light of the aforesaid decision

passed by the Apex Court, the application filed by the
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respondent under Section 125 of the Code is

maintainable. So far as amount of maintenance is

concerned, the applicant is working as an Electrician

at Rail Coach Factory and earning of Rs.35,000/- per

month from the Railway Department, this fact is not

disputed by the applicant. Thus, looking to the income

of the applicant, the amount of maintenance awarded

by the Family Court is just and proper. In view of

foregoing reasons, I do not find any reason to

interfere in the order passed by the family Court,

Bhopal. Accordingly, the revision is dismissed.

(Ms.Vandana Kasrekar)
Judge

RC

Digitally signed by RASHMI
CHIKANE
Date: 2017.12.01 11:23:31
+05’30’
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR

Criminal Revision No.2430/2015

Shakeel Ali.

Vs.

Baby Farida.

ORDER

Post it for : 30.11.2017

(Ms. Justice Vandana Kasrekar)
JUDGE
29.11.2017

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