The judgment establishes the principles of dissolution of marriage under personal laws, communication of divorce plea through written statement, and entitlement to maintenance till the 'Iddat' period.

JUDGMENT :

P.K.Tripathy, J. - This is the second journey to this Court by the petitioner with respect to the dispute between the parties on the claim of maintenance u/s 125, Cr.P.C. by the opposite party on the ground asserted by her that she is the legally married wife of the petitioner.

2. Opposite party filed Cri. Misc. Case No. 97 of 1993, claiming for maintenance from the petitioner u/s 125, Cr.P.C. on the ground of cruelty and desertion and her destitute condition. While that application was pending in the Court of S.D.J.M., Puri, petitioner filed an application challenging maintainability of the proceeding Under/Section 125, Cr.P.C. on the ground of not taking his consent Under/Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (in short, 'the Act'), so as to continue the proceeding Under/Section 125. Cr.P.C. He also pleaded, interalia, about a divorce between the parties. That application being rejected by learned S.D.J.M., petitioner unsuccessfully challenged that order in the Court of Sessions, and learned First Addl. Sessions Judge, Puri dismissed that revision on merit. As against that, petitioner filed Criminal Misc. Case No. 4558 of 1998 u/s 482, Cr.P.C. and that was rejected by this Court on the ground of the bar provided u/s 397(3), Cr.P.C. so also on the ground that the plea of divorce advanced by the petitioner being a disputed fact that issue should not be decided as a preliminary issue. Notwithstanding rejection of the application Under/Section 482, Cr.P.C. in that manner, this Court observed that :

"However the factum of divorce and consequence thereof may be considered by the learned Magistrate on proper assessment of evidence and the personal law of the parties."

It was also observed to afford opportunity of hearing directing the parties to participate in the proceeding in the Court below. After such order the case was transferred to the Court of J.M.F.C., Pipili on jurisdictional ground. At the stage of hearing of the application u/s 125, Cr.P.C. petitioner did not appear and contest. Therefore, on 1.5.2000 the impugned ex parte judgment was passed granting monthly maintenance @ Rs. 500/- (five hundred) in favour of the opposite party.

3. In the Court below opposite party pleaded about a lawful marriage which was being registered on 1.12.1980 at Kharagpur. She also pleaded about ill-treatment and cruelty by the petitioner at the instance of his first wife and children. She averred about no source of income for her whereas the petitioner having sufficient income has neglected to maintain her. Petitioner had filed a written statement denying to the allegation besides stating that opposite party is the wife of one Nashar Ali and during subsistence of that marriage her claim of marriage in the alleged manner with the petitioner is void. He also pleaded about a divorce being given by him to the opposite party on 18.1.1991 on the ground of cruelty on him. Besides that he pleaded about absence of sufficient income to maintain the opposite party. On all such grounds besides the legal ground Under/Section 5 of the Act, 1986 he claimed for dismissal of the application for maintenance.

4. It is noted in the impugned order that while the opposite party has proved her case regarding death of her first husband and a valid registered marriage as per Ext. 1 and subsistence of the same, the petitioner has not been able to prove any of the grounds advanced by him. Learned Magistrate also believed the unchallenged statement of the opposite party regarding the ill-treatment, cruelty and desertion and the capacity of the petitioner to maintain the opposite party. So far as the legal plea raised by the petitioner in his written statement is concerned, learned Magistrate recorded that since the marriage was performed and registered under the Special Marriage Act, dissolution of the marriage as pleaded under the Mohammadan Law is not maintainable. Accordingly, he found the application Under/Section 125, Cr.P.