Permissibility of amendments to the application under Section 125 Cr.P.C. and the applicability of Sections 3, 4, and 5 of the Muslim Women's (Protection of Rights on Divorce) Act 1986.

D.G.R. Patnaik, J.

1. The petitioner in this application has prayed for quashing the order dated 15.9.2005 passed by the Principal Judge, Family Court, Bokaro, in Maintenance Case No. 39 of 2003 whereby prayer of the Opposite Party No. 2 for allowing certain amendments to be carried out in the application under Section 125 Cr.P.C. has been allowed.

2. The factual background of the case is that the opposite party No. 2 Claiming herself to be the wife of the petitioner has filed an application for maintenance under Section 125 Cr. P. C. along with Sections 3, 4, 5 of the Muslim Women's (Protection of Rights on Divorce) Act 1986, which is pending enquiry before the learned court below. While seeking to make amendment, the opposite party No. 2 has wanted to delete the words "And under Sections 3, 4, and 5 of the Muslim Women (Protection of Rights on Divorce) Act. 1986" appearing in the cause title after the name and address of the opposite party and after the words Cr.P.C. She has also wanted to insert a new paragraph as paragraph 1(a) containing the following statement:

That the petitioner was earlier married with one Md. Ali Sabbir Ansari on 24.11.1997 but the petitioner was divorced by her husband namely Ali Sabbir Ansari in presence of the members of the Islahul Muslemin committee on 11.10.1999 as per the Muslim rites and customs.

She has further wanted that after the word "that" in the first line of paragraph 2 of her petition, the word "thereafter" be added and the word "was" be substituted by words "has been" in the same line.

3. The petitioner appearing as opposite party No. 2 in the aforesaid proceeding had filed his objection. After hearing the parties and overruling the objection raised by the petitioner, learned court below allowed the prayer for amendment.

4. The main ground advanced by the petitioner in support of his prayer for quashing the impugned order of the learned court blow is that the prayer for amendment as made by the opposite party No. 2 is totally alien to the provisions of the Code of Criminal procedure, since the Code does not contain any provision allowing amendment to the petition and neither has any provision for amendment of the petition been incorporated or described or permitted in the Family Courts Act, 1984.

5. Learned Counsel for the petitioner explains that though the opposite party No. 2 has claimed herself to be the legally married wife of the petitioner, but the same has been denied and disputed by him in his show cause reply filed before the trial court and on the contrary, he has pointed out that the opposite party No. 2 was married to another person namely, Md. Ali Sabbir Ansari, and the marriage was solemnized on 24.11.1997 and earlier the opposite party No. 2 had preferred a criminal proceeding under Section 498A IPC against her husband Md. Ali Sabbir Ansari by way of complaint registered as Complaint Case No. 19 of 1999 (T.R. No. 855 of 1999) which was dismissed on 8.12.1999. The petitioner had further pointed out that the marriage of the opposite party No. 2 with Md. Ali Sabbir Ansari was Still subsisting even on the date of the filing of the instant case and was never declared as divorced or nullified by any competent court of law. Learned Counsel adds further that by allowing the prayer for amendment, the learned court below has illegally allowed the opposite party No. 2 to change the nature of her case which would invariably cause prejudice to the petitioner. Learned Counsel explains that as per the provisions of 3, 4, and 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim wife cannot claim maintenance under Section 125 Cr.P.C. and the declaration on affidavit which was essentially needed to be given by the opposite party No. 2 under the provisions of Section 5 of the Act claiming her preference to be governed under Section 125 to 128 Cr.P.C. exclusively, having not been made, the very nature of the entire case would be changed since deleting th