The main legal point established in the judgment is that a divorced wife's claim for maintenance under Section 125 of the Cr. P. C. is not tenable if she does not aver that she is unable to maintain herself. Additionally, the husband's compliance with the provisions of Section 127(3)(b) leads to the cancellation of the maintenance order.

G. N. SABHAHIT, J.

( 1 ) THIS petition is directed against the order dated 22-11-1976 passed by the learned Sessions judge, Belgaum, in Criminal Revn. Appln. No. 76 of 1975 on his file.

( 2 ) THE relevant facts necessary to decide the present petition are these: smt. Zubedabi instituted an application under Section 125 of the Cr. P. C. before the Court of the judicial Magistrate, First Class, J Court, Belgaum on 12-7-1974, She alleged that the respondent was her husband and that she was legally married to him on 25-1-1959 in Khanjar Galli, belgaum. The parties are Muslims. After the marriage, petitioner resided with her, husband in his house in Arlikatti Deshpande Galli, Belgaum. Marriage was consummated. A boy was conceived and he was subsequently born. He was aged more than 14 years at the time of petition. After the marriage of the petitioner with the respondent, the respondent developed illegitimate intimacy with one Shafiya Savanur and he subsequently married her. He was spending most of his time with her to the total neglect of the petitioner. Thereafter, the parents of the respondent told the petitioner to go and stay with her parents. The respondent executed an agreement as per exhibit P-1 on 10th July 1965 in favour of the petitioner, agreeing to pay her Rs. 40/- per month towards her maintenance. He failed to pay the same since 1973. The petitioner made representation to the Deputy Director of Public Instruction. Being enraged the respondent gave a public notice divorcing the petitioner in 'belgaum Samachar' on 30th of March 1974. Thus, the petitioner is a divorced wife of the respondent. Petitioner averred in the petition that she had not remarried after divorce. Hence, she claimed maintenance from her husband under Section 125 of the Cr. P. C. at the rate of Rs. 80/- per month. Her husband was a High School teacher and he had sufficient means to maintain the petitioner, but had neglected.

( 3 ) THE respondent in the petition on entering appearance resisted the claim of the petitioner. He averred that he had given 'tallak' three times to the petitioner in her presence on 18-7-1959 itself. An agreement as per Ex. P-1 was obtained from him through coercion. Since the petitioner was challenging the divorce given, he sent the 'tallaknama1 by registered letter to the petitioner and the same was refused. Subsequently, he got it published in "belgaum Samachar' on 30-3-1974. He further asserted that along with the 'tallaknama' he sent a cheque for Rs. 525/- to the petitioner and the maintenance amount for the Iddat period of three months totalling Rs. 120/ -. The same was refused. On this ground he contended that he was not liable to pay the maintenance to the petitioner,

( 4 ) THE petitioner examined herself as P. W. 1 before the learned Magistrate. She spoke to the petition averments. She examined, in addition, P. W. 2 the Assistant Manager of the Syndicate bank, Belgaum. He spoke to the fact that the respondent was issuing cheques to the petitioner earlier. P. W. 3 is Mohamadija A. Angolkar, the Head Master of Islamia High School, Belgaum, where respondent is working. He has spoken to the salary of the respondent and that he was sending cheques at the rate of Rs. 40/- per month to his wife - the petitioner, earlier. P. W. 4 is Mohadinsab. He has spoken about the agreement executed by the respondent in favour of the petitioner. As against this, the respondent examined himself as D. W. 1. He examined one mohammad Ali as D. W, 2. He is the Manager of the Muslim Co-operative Bank, Belgaum. He has spoken to the fact that the petitioner and her brother mortgaged some properties and raised a loan of Rs. 4,000/ -. In addition to the oral evidence Exhibits P-1 to P-4 were got marked by the petitioner and Exhibits D-1 to D-13 were got marked by the respondent. The learned Magistrate appreciating the evidence on record, by his order dated 20-10-1975 held that the petitioner was entitled for the maintenance and he awarded mainten

Click Here to Read the rest of this document