Point of Law: Divorced Muslim women shall be entitled to claim maintenance from her husband under Section 125 Cr.P.C. even after expiry of period of iddat as long as she does not remarry.

JUDGMENT :

KARUNESH SINGH PAWAR, J.

C.M. Application No. 83077 of 2008

1. The application seeks condonation of delay in filing the criminal revision.

2. Heard learned counsel for the revisionist and learned A.G.A. for the State.

3. None appears for respondent no. 2.

4. Since cause shown in the affidavit filed in support of application for condonation of delay in filing the instant revision is satisfactory, the application for condonation is allowed and delay in filing the instant revision is hereby condoned.

(Order on the memo of Revision)

1. Heard Shri Avinash Srivastava holding brief of Shri Ashok Kumar Srivastava, learned counsel for the revisionist and learned A.G.A. for the State as well as perused the record.

2. None appears for respondent no. 2. However, learned counsel for the revisionist submits that the present revision is pending since 2008 and even objections have not been filed by respondent no. 2 and the matter has never been argued by respondent no. 2.

3. The present revision has been filed against the judgment and order dated 11.4.2008 passed by learned Additional Sessions Judge, Court No. 5, Pratapgarh passed in Criminal Revision No. 54 of 2007, whereby the order of trial Court dated 23.1.2007 has been modified. The maintenance allowance of Rs. 1000/- awarded in favour of the revisionist no. 1 has been canceled or set aside and maintenance allowance in favour of revisionist nos. 2 and 3 has been reduced to Rs. 250/- per month from Rs. 500/- per month each.

4. Learned counsel for the revisionist submits that learned trial Court vide judgment and order dated 23.1.2007 has allowed the application under Section 125 Cr.P.C. filed by the revisionist after adjudicating five issues. All those issues have been decided in favour of the revisionist. Aggrieved by the order passed by the trial Court, respondent no. 2 filed the revision before the revisional court, wherein the impugned order dated 11.4.2008 has been passed.

5. Submission of learned counsel for the revisionist is that the revisional Court has wrongly relied and misinterpreted the judgment of Danial Latifi and Another vs. Union of India, AIR 2001 SC 3958 by allowing the revision. He submits that revision has been allowed only on the ground that since the revisionist no. 1 has been divorced by respondent no. 2 both are governed by The Muslim Women (Protection of Rights on Divorce) Act 1986 and therefore in view of judgment of Hon'ble Supreme Court in the case of Danial Latifi (supra), after enforcement of this Act, the divorced Muslim women is entitled to get maintenance under Section 3 and Section 4 of the aforesaid Act even after the stage of iddat and therefore she is not entitled to receive maintenance under Section 125 Cr.P.C. In support of his arguments, he has relied on the judgment of Hon'ble Supreme Court in the case of Shabana Bano vs. Imran Khan passed in Criminal Appeal No. 2309 of 2009.

6. Learned counsel for the revisionist submits that till date not a single penny has been given by respondent no. 2 to the revisionist.

7. On due consideration and perusal of the record as well as the impugned judgment passed by the trial court, it is not in dispute that respondent no. 2 is a person of having sufficient means to maintain his divorced wife and minor children. Issue no. 1 has been decided by learned trial Court in favour of the revisionist. Likewise he has neglected to maintain his wife and minor children. The revisionist is destitute and have no source of income and revisionist is entitled to get the maintenance allowance from respondent no. 2 and consequently issue nos. 2 to 5 have been decided in favour of the claimant revisionist.

8. It appears that revisional court has modified the order passed by the learned trial court and maintenance allowance granted under Section 125 Cr.P.C. in favour of respondent no. 1 has been set aside and the allowance granted in favour of respondent nos. 2 and 3 have been reduced to Rs. 250/- from Rs. 500/- per month.

9. From perusal