The dissolution of marriage at the instance of a Muslim wife can only be in terms of section 2 of Dissolution of Muslim Marriages Act, 1939. Consummation of marriage is relevant but not the sole criteria to determine the validity of marriage under the Hindu Marriage Act, 1955.

S.K. AWASTHI, J.

1. This criminal revision is directed against the order dated 11.07.2014 passed in Criminal MJC No. 62/2014 by Family Court, District Bhind (M.P.) whereby the application preferred by applicant under Section 125 of Cr.P.C. has been dismissed.

2. The facts as presented by the applicants are that the applicant No. 1 solemnized marriage with respondent in the month of April, 2008 by following Hindu rituals, consequently, the applicants started residing with the respondent, however, after some period the respondent developed hostility towards the applicants leading to material discord and also deliberate failure of respondent to maintain the present applicants. For the purpose of adjudication of present application, it is pertinent to highlight certain factual aspect of the matter which will have bearing on the outcome of the present case.

3. According to the applicant No. 1, she was married to one Hanif Khan for some period of time. Although the marriage ended on 22.05.2010, when Hanif Khan divorced the applicant. Subsequently, the applicant No. 1 solemnized marriage with the respondent. Although, the pleading with respect to divorce by Hanif Khan was modified and it was indicated that the applicant divorced Hanif Khan by pronouncing triple "Talak" directed to him. Therefore, the responsibility to maintain the applicants rests on respondent with whom marriage has been consummated.

4. The application under Section 125 of Cr.P.C. was preferred and the respondent was invited to file reply by the Family Court. The respondent moved an application for dismissal of entire proceedings drawn at the instance, on the ground that the applicant No. 1 is not his wife to have locus to move application under Section 125 of Cr.P.C. This application was accepted by the court below on the ground that the narration of fact made in the application are enough to conclude that the applicant has not validly dissolved her first marriage, accordingly, the subsequent marriage will be nullity and will render the application under section 125 as not maintainable. This finding is challenged in the present criminal revision.

5. Learned counsel for the applicant in sum and substance contended that the Family Court did not consider the factum of consummation of marriage which had already taken place between the applicant No. 1 and respondent and the dissolution of first marriage by the applicant No. 1 was in terms of muslim law and was validly done, therefore, the dismissal of application is improper. Apart from it, no other ground has been canvassed.

6. Learned counsel for the respondent supported the reasons given in the impugned order.

7. I have considered the rival contention of the parties and have perused the record.

8. The respondent has invited this court to examine broadly two prepositions. Firstly, whether a Muslim woman can divorce her husband by pronouncing triple Talak? Secondly, whether the consummation of marriage alone is declaring the marriage as valid?

9. Now this court will deal with the first preposition, however, before recording conclusion it will be appropriate to refer to the judicial pronouncement of Hon'ble Supreme Court in the case of Mst. Zohara Khatoon vs. Mohd. Ibrahim, 1981 (2) SCC 509, wherein the following has been observed:

21. After the Act of 1939, a wife thus had a statutory right to obtain divorce from the husband through the Court on proof of the grounds mentioned in the Act. The Act provided for the wife an independent remedy which could be resorted to by her without being subjected to a pronouncement of divorce by the husband. It is, therefore, in the background of this Act that the words has obtained a divorce from her husband in clause (b) of the Explanation have to be constructed. Thus the High Court in considering the effect of these words seems to have overlooked the dominant object of the statutory remedy that was made available to the wife under the Act of 1939 by which the wife could get a decree for