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HIGH COURT OF BOMBAY
Vinay Joshi, J
Sau. Noorjahan w/o Salim Geegani – Appellant
Versus
Mohd. Salim Haji Shakur, Geegani – Respondent
CRIMINAL WRIT PETITION NO. 87/2012
For the Appellants/Petitioners: Mr. Sibghatullah Jagirdar
For the Respondents: None
Divorced Muslim women are entitled to maintenance from the date of application under Section 125, despite earlier dismissals.
Headnote:{ Statute Analysis: The case involves the interpretation of Section 125 of the Code of Criminal Procedure regarding maintenance rights of a divorced Muslim woman. Facts of the Case: The appellant, after being divorced, sought maintenance which was limitedly awarded from a later date, leading to this challenge.
Findings of Court:
The court found merit in the appeal and recognized the need for maintenance from the date of application.
Issues: The court framed the issue around the timing of maintenance under Section 125 of the Code.
Ratio Decidendi: The court reasoned that a divorced Muslim woman is entitled to maintenance regardless of prior dismissals, referencing established Supreme Court rulings.
Result: The petition is allowed and the impugned order is modified to grant maintenance from the date of application. }
| Table of Content |
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| 1. absence of respondent affects proceedings. (Para 1 , 2) |
| 2. legal basis for maintenance in divorced muslim marriages. (Para 3 , 4 , 5) |
| 3. entitlement to maintenance affirmed by precedent. (Para 6 , 7) |
| 4. modification of prior order to reflect rightful maintenance. (Para 8) |
1.Despite appearing in the proceeding, respondent/husband chooses to remain absent. The matter was adjourned time to time with a hope that respondent/husband would appear and contest the matter, but he failed.
2. Heard learned counsel for the petitioner/wife and gone through the record and proceeding. The petitioner/wife has raised a limited challenge to the order dated 30.11.2011 in Criminal Revision No. 118/2011, by which the maintenance was awarded from 17.03.2011 i.e. when fresh notice after remand, was served on husband. In other words, it is petitioner’s grievance that maintenance has not been awarded from the date of application, which is the limited challenge
3. The litigation has checkered history. The couple married on 09.05.1983, whilst petitioner/wife was divorced by the respondent/husband on 22.08.1983. Since the petitioner/lady was neglected and refused by her husband, she filed maintenance application No. 94/1986 in terms of Section 125 of the Code of Criminal Procedure (‘Code’) which was dismissed. The revision against said order was equally dismissed, but this Court held that the application was maintenable as regards to the rights of children.
4. Though in first round of litigation, the maintenance was refused to the wife, however she has again filed maintenance application No. 47/2000 claiming change in legal position. Perhaps, she has applied afresh in view of the decisions of the Supreme Court in various cases holding that divorced Muslim woman is entitled for maintenance under Section 125 of the Code as long as she does not remarry. In said application, reliance was placed on the decision of the Supreme Court in case of Shabanabano Vs. Imrankhan , 2010 (1) Bom. C. R. (Cri) 57. The said application was dismissed, however the Revisional Court vide order dated 29.09.2010 remanded matter back for fresh consideration. Latter on, the Magistrate after considering the settled legal position vide judgment and order dated 08.08.2011 has awarded maintenance @ Rs. 1500/- from the date of application i.e. from 22.03.2000. Aggrieved by said order, respondent/husband filed Criminal Revision No. 118/2011, in which the quantum of maintenance was not disturbed, but it was directed to be paid from 17.03.2011 which is impugned herein.
5. In-short, in second round, maintenance application was filed on 22.03.2000 and it was awarded from the date of application. The Revisional Court has observed that since maintenance application was earlier dismissed, then remanded and therefore, it is quite harsh to direct respondent/husband to pay maintenance from the date of application. With such analogy, the Revisional Court held that after remand, a fresh notice was served on 17.03.2011 and therefore, awarded maintenance from that date.
6. It reveals from the record that earlier dismissal was not on merits. During pendency, husband had moved an application Exh. 33 for dismissal on account of divorce and the plea of res judicata was raised, that is why the Revisional Court interfered by holding that divorced Muslim woman is entitled for maintenance. Thus, apparently, there was no mistake on the part of the petitioner/lady in the dismissal of application.
7. Learned counsel appearing for petitioner relied on the decisions of Supreme Court in cases of Shabana Bano Vs. Imran Khan , 2009 LawSuit (SC) 1524 and Danial Latifi and another Vs. Union of India , (2001) 7 SCC 740 , wherein the Supreme Court has crystallized the law in the field reiterating the position that divorced Muslim woman is entitled for maintenance with reference to the Muslim Women (Protection of Rights on Divorce) Act, 1986 and rights of Muslim women were recognized. Thus, there
