Bombay High Court
Mohammad Sajid S/O Baba Miyan Khan vs Gazala D/O Mujibur Rehman Siddiqui And ... on 10 January, 2019
Author: Z.A. Haq
Bench: Z.A. Haq
1 apl170.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO.170/2015
Mohammad Sajid S/o Baba Miyan Khan,
aged 29 Yrs., Occu. At present nil,
R/o Flat No.104, Taj Apartment, Rose
Colony, Jafar Nagar, Nagpur. ..Applicant.
..Vs..
1. Gazala D/o Mujibur Rehman Siddiqui,
aged 28 Yrs., Occu. Service, R/o 482/A/12,
"God Bless" behind Police Line Takli,
Mahesh Nagar, Nagpur -12.
2. State of Maharashtra,
through PSO Gittikhadan Police Station,
Nagpur. ..Non-applicant.
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Shri Gautam Chatterjee, Advocate for the applicant.
Shri M.S. Wakil, Advocate for non-applicant No.1.
Ms. Shamsi Haider, A.P.P. for non-applicant No.2.
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CORAM : Z.A. HAQ, J.
DATE : 10.1.2019.
ORAL JUDGMENT
1. Heard.
2. The non-applicant No.1 / wife has filed application under Section 3(1)(a) of the Muslim Women Protection of Rights on Divorce Act, 1986 (for short "the Act of 1986") seeking reliefs against the applicant / husband. This application is filed on 19th January, 2012. On 14th December 2012, the ::: Uploaded on - 04/02/2019 ::: Downloaded on - 25/03/2020 20:17:25 ::: 2 apl170.15 non-applicant No.2 / wife filed an application under Section 125 of the Code of Criminal Procedure against the applicant / husband praying that he be directed to pay Rs.5,000/- (Rs. Five Thousand) per month to her towards maintenance. After filing of the application under Section 125 of the Code of Criminal Procedure, the husband filed an application in the proceedings under Section 3(1)(a) of the Act of 1986 and alongwith application, declaration under Section 5 of the Act of 1986 was also filed to the effect that he desires to be governed by the provisions of Section 125 of the Code of Criminal Procedure. The husband submitted that as the wife had filed application under Section 125 of the Code of Criminal Procedure, she had also expressed her desire to be governed by the provisions of Section 125 to 128 of the Code of Criminal Procedure and treating that the application filed by her under Section 125 of the Code of Criminal Procedure which is supported by affidavit, as an affidavit / declaration under Section 5 of the Act of 1986, the application filed by the wife under Section 3(1)(a) of the Act of 1986 be disposed. The application filed by the husband praying that the application filed by wife under Section 3(1)(a) of the Act of 1986 be disposed, is dismissed by the impugned order.
3. It is undisputed that after the husband filed the application relying on the provisions of Section 5 of the Act of 1986, wife has withdrawn the application filed by her under Section 125 of the Code of Criminal Procedure. ::: Uploaded on - 04/02/2019 ::: Downloaded on - 25/03/2020 20:17:25 :::
3 apl170.15 In my view, as the application filed by the wife under Section 125 of the Code of Criminal Procedure is withdrawn and now only application under Section 3(1)(a) of the Act of 1986 is pending, the issue of maintainability does not require consideration. Consequently, the legality of the impugned order is also not required to be examined as the impugned order loses its efficacy in the facts recorded above.
4. In view of the above, following order is passed:
The application filed by the applicant / husband praying that the non-applicant No.2 / wife be directed to exercise her option as per Section 5 of the Act of 1986 and submit declaration / affidavit to that effect does not require consideration in view of the withdrawal of the application filed by the non-applicant No.2 / wife under Section 125 of the Code of Criminal Procedure. Consequently, the impugned order also does not survive as it has lost its efficacy. The criminal application is disposed accordingly.
JUDGE Tambaskar.
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