7. In order to buttress his point, Mr. Kalita has relied upon a judgment of Hon’ble Bombay High Court that was delivered in Karim Abdul Rahman Shaikh v. Shehnaz Karim Shaikh, reported in 2000 0 Supreme (Bom) 845. The Hon’ble Bombay High Court had held that after the commencement of the Act of 1986, a Muslim divorced wife cannot apply for maintenance under the provisions of Section 125 of the CrPC. The divorced woman can file a petition under Section 125 of the CrPC if there is an agreement to that effect with her former husband.

8. I have considered the submissions made by the learned counsel of both sides.

9. In Mohd. Abdul Samad v. State of Telangana, (2025) 2 SCC 49, the Hon’ble Supreme Court has held as under –

“O C [Ed. : Signed by both Hon'ble Judges]

RDER OF THE OURT

115. What emerges from our separate but concurring judgments are the following conclusions:

115.1. Section 125 CrPC applies to all married women including Muslim married women.

115.2. Section 125 CrPC applies to all non-Muslim divorced women.

115.3. Insofar as divorced Muslim women are concerned, 115.3.1. Section 125 CrPC applies to all such Muslim women, married and divorced under the Special Marriage Act in addition to remedies available under the Special Marriage Act.

115.3.2. If Muslim women are married and divorced under Muslim law then Section 125CrPC as well as the provisions of the 1986 Act are applicable. Option lies with the Muslim divorced women to seek remedy under either of the two laws or both laws. This is because the 1986 Act is not in derogation of Section 125 CrPC but in addition to the said provision.

115.3.3. If Section 125 CrPC is also resorted to by a divorced Muslim woman, as per the definition under the 1986 Act, then any order passed under the provisions of the

1986 Act shall be taken into consideration under Section 127(3)(b) CrPC.

115.4. The 1986 Act could be resorted to by a divorced Muslim woman, as defined under the said Act, by filing an application thereunder which could be disposed of in accordance with the said enactment.

115.5. In case of an illegal divorce as per the provisions of the 2019 Act then, 115.5.1. Relief under Section 5 of the said Act could be availed for seeking subsistence allowance or, at the option of such a Muslim woman, remedy under Section 125 CrPC could also be availed.

115.5.2. If during the pendency of a petition filed under Section 125 CrPC, a Muslim woman is “divorced” then she can take recourse under Section 125 CrPC or file a petition under the 2019 Act.

115.5.3. The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 CrPC.”

10. So, the law is very clear. A divorced Muslim woman is entitled to seek maintenance from her former husband either under the provisions of Section 125 of the CrPC or under the provisions of Muslim Women (Protection of Rights on Divorce)

Act, 1986. It is her choice.

11. So far as the claim that the respondent had remarried, it is the duty of the petitioner to prove that fact. Her simple admission is of no consequences to that effect.

12. For the aforesaid premised reasons, this Court is of the opinion that there is no jurisdictional errors in the judgment dated 22.04.2022 passed by the learned Judicial Magistrate First Class, Lakhimpur, North Lakhimpur in Misc. Case No.61/2018.

13. This Criminal Revision Petition is found to be devoid of merit and stands dismissed and disposed of accordingly.

Send back the LCR.

JUDGE Comparing Assistant