Rajasthan High Court - Jodhpur
Smt.Khursida vs Mohd.Salim on 1 September, 2021
Equivalent citations: AIRONLINE 2021 RAJ 1217
Bench: Sandeep Mehta, Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D. B. Criminal Revision Petition No. 829/2008
Smt. Khursida w/o Shri Salim Mohammed D/o Abdul Kareem, by
caste Musalman, R/o Khempura, Rajunagar, Udaipur
----Petitioner
Versus
Mohd. Salim s/o Basir Mohammed, by caste Musalman, R/o
Behind C.I.D. Jail, Azad Nagar, Indore (M.P.)
----Respondent
For Petitioner(s) : Mr. Abhinav Jain
For Respondent(s) : Mr. Ranjeet Joshi
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE RAMESHWAR VYAS Order 01/09/2021 The matter comes on an application (Inward No. 01/2021) filed by the petitioner seeking early hearing of the revision petition.
For the reasons mentioned in the application, the same is allowed.
With the consent of learned counsel for the parties, the matter is taken up for hearing today itself.
Heard learned counsel for the parties on the main revision petition and perused the order impugned.
The present revision petition has been preferred by the petitioner under Section 19 of the Family Courts Act, 1984 against the Order dated 11.06.2008 passed by the Judge, Family Court, Udaipur in Criminal Case No. 431/2004 whereby while allowing the application under Section 127 Cr.P.C. filed by the respondent- (Downloaded on 03/09/2021 at 08:21:21 PM)
(2 of 5) [CRLR-829/2008] husband, the Order dated 06.08.1999 awarding monthly
allowance of maintenance in favour of the petitioner-wife under Section 125 Cr.P.C. was modified holding that she would not be entitled for any maintenance from the respondent-husband from the date of passing of the Order dated 11.06.2008, whereas, the application seeking enhancement of maintenance under Section 127 Cr.P.C. filed by the petitioner-wife was dismissed.
Brief facts of the case are that the petitioner-wife moved an application under Section 125 Cr.P.C. claiming monthly allowance of maintenance from the respondent-husband, which was allowed by the Judge, Family Court, Udaipur vide Order dated 06.08.1999 awarding a sum of Rs. 400/- per month as maintenance in favour of the petitioner-wife from the respondent-husband. Thereafter, the respondent-husband moved an application under Section 127 Cr.P.C. before the learned Family Court on 30.04.2004 stating that he had given divorce to the petitioner-wife on 11.01.2000 by a written document in the presence of two witnesses. It was averred in the aplication that in view of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (afterwards referred to as "the Act of 1986"), after divorce, the petitioner-wife was not entitled for any maintenance and prayed that the Order dated 06.08.1999 awarding maintenance in favour of the petitioner-wife may be set aside while allowing the application filed by him.
The petitioner-wife filed reply to the above application. She also moved an application under Section 127 Cr.P.C. inter alia stating that the respondent-husband was not paying regular maintenance awarded in her favour by the learned Family Court and during these years, the income of the respondent-husband had also increased to the extent of Rs. 15,000/- per month and (Downloaded on 03/09/2021 at 08:21:21 PM) (3 of 5) [CRLR-829/2008] therefore, she prayed for enhancement of monthly allowance of maintenance @ Rs. 3,000/- per month.
Reply to the said application was filed by the respondent- husband.
After recording the evidence of both the parties, learned Family Court vide Order dated 11.06.2008 while allowing the application under Section 127 Cr.P.C. filed by the respondent- husband, modified the Order dated 06.08.1999 awarding monthly allowance of maintenance in favour of the petitioner-wife under Section 125 Cr.P.C. and ordered that since the petitioner-wife was divorced by the respondent-husband, therefore, she would not be entitled for any maintenance from the date of passing the Order dated 11.06.2008. Consequently, the application under Section 127 Cr.P.C. filed by the petitioner-wife seeking enhacement of monthly allowance of maintenance was dismissed.
We have heard learned counsel for the parties and perused the record of the case.
Learned counsel for the petitioner relying on the judgment of the Hon'ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan reported in (2015) 5 Supreme Court Cases 705 contended that it is now a well established legal proposition that even a divorced Muslim wife is entitled for maintenance under Section 125 Cr.P.C. after the period of Iddat if she is unable to maintain herself. Therefore, he prays that the impugned order passed by the learned Family Court is against the settled legal proposition and therefore, liable to be set aside to the extent it is not in conformity with the law laid down by the Hon'ble Apex Court.
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(4 of 5) [CRLR-829/2008] On the other hand, learned counsel for the respondent submitted that in view of Sections 3, 4 & 5 of the Act of 1986, the petitioner should seek remedy under the above Act. He further submitted that the learned Family Court was right in allowing the application under Section 127 Cr.P.C. filed by the respondent since the petitioner was divorced by her husband i.e. respondent herein as per the Muslim Law.
After considering the law laid down by the Hon'ble Supreme Court in the case of Shamima Farooqui (supra) which has referred the judgments rendered in the cases of Shamim Bano Vs. Asraf Khan reported in (2014) 12 SCC 636 and Shabana Bano Vs. Imran Khan reported in (2009) 1 SCC 666, we are of the firm opinion that a Muslim divorced woman is unquestionably entitled to get maintenance under Section 125 Cr.P.C. after the Iddat period as long as she does not remarry and if she is otherwise so entitled. Thus, the learned Family Court has committed a grave error in law while modifying the Order dated 06.08.1999 awarding maintenance in favour of the petitioner-wife under Section 125 Cr.P.C. in Criminal Misc. Case No. 183/91.
Accordingly, the present revision petition is allowed. The impugned Order dated 11.06.2008 passed by the learned Judge, Family Court, Udaipur is quashed and set aside. The matter is remanded back for consideration of the application filed by the petitioner-wife under Section 127 Cr.P.C. seeking enhancement of monthly allowance of maintenance as per law expeditiously. The learned Judge, Family Court, Udaipur is directed to ensure the recovery of outstanding amount of maintenance awarded under Section 125 Cr.P.C. in favour of the petitioner-wife in Criminal (Downloaded on 03/09/2021 at 08:21:21 PM) (5 of 5) [CRLR-829/2008] Misc. Case No. 183/1991. The parties are directed to remain present before the Family Court, Udaipur on 27.09.2021 positively.
(RAMESHWAR VYAS),J (SANDEEP MEHTA),J
16-Inder/-
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