Validity of Talaq under Muslim Law and its impact on entitlement to maintenance under Section 125 of the Code of Criminal Procedure

The order of maintenance passed by the learned Chief Judicial Magistrate, Villupuram in M.C.No.10 of 2004 granting maintenance for the respondents herein under Section 125 of Code of Criminal Procedure, is challenged in this criminal revision case.

2. The brief facts leading to the filing of the present revision case can be stated thus:

i) The revision petitioner is the husband of the first respondent and father of respondents 2 and 3 herein. The first respondent-wife was Hindu by birth. There developed an intimacy between the first respondent herein and the revision petitioner who had already married another Muslim woman. Pursuant to the said intimacy, the first respondent converted to Islam and then the revision petitioner married her in accordance with the law applicable to Muslims. Out of the said wedlock, respondents 2 and 3 were born to them.

(ii) Contending that the revision petitioner failed and neglected to maintain the respondents and that the respondents did not have means to maintain themselves, the first respondent herein filed a petition under Section 125 of Code of Criminal Procedure in M.C.No.10 of 2004 on the file of the learned Chief Judicial Magistrate, Villupuram, praying for an order, directing the revision petitioner herein to pay maintenance at the rate of Rs.3000/- per month to each one of the respondents herein. It was also contended in the said petition that the revision petitioner as an Engine Driver employed in Southern Railway, was earning a gross salary of Rs.25,000/-per month and the net salary, after deduction was Rs.9000/-per month. It was further contended that he was having a further income of Rs.20,000/- per month from his money lending business.

(iii) The claim was resisted by the revision petitioner by filing a counter statement contending that the first respondent was not entitled to claim maintenance under Section 125 of Code of Criminal Procedure as the marriage had been validly terminated by the revision petitioner by pronouncing Talag. The further contention raised in the counter-statement was that the first respondent developed intimacy with another Hindu by name Rajendran and reverted back to her original Hindu practice and idol worship; that in view of the same her marriage with the revision petitioner became automatically nullified and that hence she was dis-entitled to be the mother of the children, the respondents 2 and 3. It was also contended that the allegations made in the maintenance case regarding the income of the revision petitioner were also denied as false. Based on the said averments found in the counter-statement, the revision petitioner had prayed for the dismissal of the maintenance petition.

(iv) Two witnesses examined and 13 documents were marked on the side of the respondents/claimants in the maintenance case. The revision petitioner as respondent in the maintenance case figured as sole witness and marked three documents on his side. At the conclusion of enquiry, the learned Chief Judicial Magistrate, Villupuram accepted the case of the respondents herein and passed an order awarding maintenance to the first respondent herein at the rate of Rs.2000/- per month and for the minor respondents 2 and 3 at the rate of Rs.1500/-per month, from the date of filing of the claim petition. The correctness and legality of the said order is put in issue in this criminal revision case.

3. This Court heard the submissions made by Mr.Md.Ashfag Rafi, learned counsel appearing on behalf of the revision petitioner/respondent in the maintenance petition and Mr.S.Srinath, learned counsel appearing for the respondents/petitioners in the maintenance petition. The materials available on records were also perused.

4. Aggrieved against the order dated 13.03.2006 made in M.C.No.10 of 2004, passed by the learned Chief Judicial Magistrate, Villupuram directing payment of maintenance to his wife and minor children, the revision petitioner has come forward with this criminal revi