Maintenance entitlement under Section 125 Cr.P.C. extends beyond 'iddat' period irrespective of divorce acknowledgment.

JUDGMENT :

ANAND SHARMA, J.

S.B. Criminal Miscellaneous (Petition) No. 694/2010:-

1. This Criminal Miscellaneous Petition has been filed by the petitioners against the order dated 19.01.2010 passed by the Additional Sessions Judge (Fast Track) No.1, Dholpur, whereby criminal revision petition filed by the petitioners against the order dated 03.02.2007 passed by learned Additional Chief Judicial Magistrate, Bari on application under Section 125 Cr.P.C . has been dismissed qua petitioner No.1 and the meager amount towards maintenance was awarded in favour of petitioners No.2 and 3.

2. Learned counsel for the petitioners submits that both the courts below have committed serious error of law in holding that since divorce has taken place between the petitioner No.1 and the non-petitioner, therefore, the petitioner No.1 was not entitled for maintenance after expiry of iddat period.

3. Learned counsel for the petitioners submits that there was no legitimate evidence on record to establish that divorce has ever taken place between the petitioner No.1 and non-petitioner. It was submitted that revisional court while deciding the revision has although given one finding that no declaration given by the kazi has been produced in evidence, yet merely on the basis of oral evidence, it was assumed by the revisional court that divorce has taken place. It is submitted that even otherwise, declaration of divorce cannot be made by the criminal court and admittedly there was no declaration by the civil court in any civil suit declaring that the marriage between petitioner No.1 and non-petitioner was dissolved.

4. Learned counsel for the petitioners also submits in the alternative that even if it is assumed for the sake of argument that divorce has taken place between the petitioner No.1 and non- petitioner, even then the finding that maintenance cannot be granted by the Court under Section 125 Cr.P.C . after expiry of iddat period is without jurisdiction and against the judgment delivered by Hon'ble Supreme Court in the case of Shabana Bano Vs. Imran Khan reported in (2010) 1 SCC 666.

5. It is submitted that it would reveal by perusing the order passed by the revisional court that the non-petitioner himself admitted that at the relevant time, he was earning around Rs.10,000-15,000/- per month, even then earlier the trial court granted maintenance in respect of the daughters (petitioners No.2 and 3) @ Rs.500/- and Rs.400/- per month which was subsequently enhanced by the revisional court @ Rs.1000/- per month for each. It is submitted that the amount awarded by the court below is on lesser side as it was not sufficient for maintaining the meaningful life even for the daughters. Hence, a prayer has been made to enhance the maintenance awarded by the revisional court and a request for payment of arrears has been made till the date the daughters have attained majority.

6. Despite service, no one has put in appearance on behalf of the non-petitioner even in the second round.

7. Learned Public Prosecutor has supported the order passed by the trial court as well as revisional court and stated that this criminal miscellaneous petition is rather in the form of second revision, which is otherwise barred under Section 397 (3) Cr.P.C . and only in order to circumvent the statutory prohibition, this criminal miscellaneous petition has been filed.

8. Heard and considered.

9. This Court is mindful of the fact that jurisdiction under Section 482 Cr.P.C . can be exercised in narrow confines and only under the circumstances where it is apparent that miscarriage of justice has occasioned to the petitioner on account of orders passed by courts below or in any other criminal proceedings for which there is no alternative