IMPORTANT POINT
Monthly maintenance – Under Section 3(2) of Muslim Act, 1986, a divorcee can file application before Magistrate if her former husband has not paid to her a reasonable and fair provision and maintenance or Mehr due to her.

JUDGMENT

Heard Sri Prakhar Saran Srivastava, learned counsel for the applicant/appellant and Sri Arvind Srivastava, learned counsel for the defendant/respondent.

2. This appeal under Section 19 of the Family Courts Act, 1984 has been filed praying to set aside the judgment and order dated 15.09.2022 passed by the Principal Judge, Family Court, Ghazipur in Criminal Misc. Case No. 2366 of 2014 (CNR No. UPGH 020019432014) under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Muslim Act, 1986) and to pass suitable order awarding monthly maintenance in favour of the applicant/appellant alongwith direction for return of the properties to her as narrated in the application.

3. On 24.11.2022 both the learned counsel for the parties have stated that there is no need to file paper book as entire relevant papers have been filed alongwith memorandum of appeal. Lower court record has been received and notified on 24.11.2022. In these circumstances, this Court had passed the order dated 24.11.2022, as under:—

“Learned counsel for the plaintiff - appellant states that entire relevant papers have been filed alongwith appeal and, therefore, the appellant does not wish to file paper book.

Lower court record has been received and notified on 24.11.2022.

Sri Arvind Srivastava, learned counsel for the defendant - respondent prays for a little time to look into the original record and to file paper book, if required.

As jointly prayed by learned counsels for the parties, put up as a fresh case on 01.12.2022 for further hearing.”

4. Again on 01.12.2022, learned counsel for the defendant/respondent prayed for final hearing of the case and, therefore, this Court passed the order dated 01.12.2022 as under:—

“Sri Arvind Srivastava, learned Counsel for defendant-respondent state that paper book is not ready in this case and entire relevant papers have been filed along-with appeal. He prays that the case may be listed after three days for final hearing.

As prayed by learned Counsel for the respondent; put up, as fresh case on 07.12.2022.”

5. In view of the aforesaid orders, this appeal is being heard finally.

Brief facts of the case:—

6. The applicant/appellant was married with the opposite party/respondent on 21.05.1989 as per Muslim Rites and Ritual. Her father was working as Sargent in the Air Force. At the time of marriage, the opposite party/respondent was not employed. He came in service of Postal Department subsequently and joined as Postal Assistant. Subsequent to joining of service, the opposite party/respondent gave divorce to the applicant/appellant on 28.06.2000 and thereafter he married with another Muslim woman some time in the year 2002. However, he neither paid Mahr nor any maintenance amount nor returned the articles belonging to the applicant/appellant, therefore, the applicant/appellant filed on 10.09.2002 Criminal Misc. Case No. 488 of 2002 (Zahida Khatoon Vs. Nurul Haque Khan), under Section 3 of the Muslim Act, 1986 in the court of Vth Additional Civil Judge, Junior Division/Judicial Magistrate, Ghazipur. Subsequently, the aforesaid case was registered as Criminal Misc. Case No. 1573 of 2004 in the court of Judicial Magistrate, Ghazipur and was converted into Criminal Misc. Case No. 2366 of 2014. Thereafter, the aforesaid case was transferred by the District Judge, Ghazipur on 21.12.2013 in the court of Family Judge/F.T.C.-II, Ghazipur and was converted into Criminal Misc. Case No. 2366 of 2014.

7. The applicant/appellant had also filed an application being Criminal Misc. Case No. 79 of 2007 (Zahida Khatoon Vs. Nurul Haque Khan), under Section 125 Cr.P.C. in the court of Judicial Magistrate, Court No. 10, Ghazipur, which was decided by order dated 29.08.2007 granting Rs. 1500/- per month for the pre divorce period. Against the said order, the applicant/appellant filed Criminal Revision No. 12 of 2008 in the court of Additional Sessions Judge, Court No. 2, Ghazipur, whi