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ALLAHABAD HIGH COURT
Arvind Kumar Tripathi (II), J.
Sardar Ali - Appellant
Versus
State of U.P. & Another - Respondent
Misc. Single No. - 7723 of 2013
Decided On : 25-11-2013
Maintenance - Divorced Muslim Wife - Interpretation of Section 125 Cr.P.C. and Muslims Women (Protection of Rights of Divorce) Act, 1986
Fact of the Case:
The petitioner filed a writ petition to quash the judgment allowing maintenance to the divorced Muslim wife under Section 125 Cr.P.C. despite the objection that it should be dealt with under the Muslims Women (Protection of Rights of Divorce) Act, 1986.
Finding of the Court:
The court, relying on a previous decision, held that the divorced wife is not entitled to maintenance under Section 125 Cr.P.C. but can claim maintenance under the Muslims Women (Protection of Rights of Divorce) Act, 1986. The court remanded the matter back to the Magistrate to decide the maintenance application in accordance with the provisions of the MWP Act.
Issues: Interpretation of provisions of Section 125 Cr.P.C. and Muslims Women (Protection of Rights of Divorce) Act, 1986, regarding maintenance for divorced Muslim wives.
Ratio Decidendi: The court's decision was influenced by the interpretation of the legal provisions, specifically distinguishing the entitlement to maintenance under Section 125 Cr.P.C. and the MWP Act for divorced Muslim wives.
Final Decision: The criminal revision was allowed, and the judgments granting maintenance to the divorced wife were set aside. The Magistrate was directed to re-register the case and decide the application for maintenance in accordance with the provisions of the MWP Act within six weeks.
Arvind Kumar Tripathi (II),J.
Heard learned counsel for the petitioner and learned AGA for the State.
2. This writ petition has been filed for quashing the judgment and order dated 10.10.2013 passed by Additional Sessions Judge, Court No.6 Sultanpur and also judgment and order dated 21.11.2012 passed by Judicial Magistrate Court No.23, Sultanpur in Crime No.59/12 by which an application moved under Section 125 Cr.P.C. was allowed despite the objection being taken that applicant is divorced Muslim Wife and the matter is to be dealt by under the Muslims Women (Protection of Rights of Divorce) Act, 1986, in short MWP Act.
3. This Court has in Writ petition No.4904(M/S)2008 Rafiquiddin Vs. Kishwar Jehan decided on 2.4.2013 has held that divorced wife is not entitled to get maintenance in terms of Section 125 Cr.P.C. but she can claim maintenance under the aforesaid Act.
4. In view of above decision of this Court, the matter is liable to be remanded back to the Magistrate concerned to decide the matter a fresh in the light of the provisions of MWP Act so far it relates to question of grant of maintenance to opposite party no.2 Rafatul Nisha.
5. In view of above, this criminal revision is allowed. Judgment and order dated 10.10.2013 and judgment and order dated 21.11.2012 are set aside to the extent of grant of maintenance of Rafatul Nisha. Learned Magistrate is directed to re-register the case and again hear to the parties concerned and to decide the application for maintenance in accordance with the provision contained in MWP Act within six weeks from the date of production of certified copy of this order.
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