Bombay High Court
Syed Akram Ali S/O Syed Sultan vs Rubinabegum D/O Shaikh Abdul ... on 31 August, 2016
Bench: N.W. Sambre
127.11crrev
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 127 OF 2011
Syed Akram Ali s/o Syed
Sultan Ali,
Age: 24 years, Occu: Labour,
HUDC, Aurangabad ..APPLICANT
VERSUS
Rubinabegum d/o Shaikh
Abdul Rasheed,
Age: 24 years, Occu: Household,
Resident of c/o Shaikh Rasheed
s/o Shaikh Hameed, Plot No. B-1,
SBH Colony, Himayatbagh,
Aurangabad ..RESPONDENT
Ms. A. N. Ansari, Advocate for applicant;
Mrs S. G. Chincholkar, Advocate h/f Mr G. N.
Chincholkar, Advocate for respondent
CORAM : N.W. SAMBRE, J.
DATE : 31st August, 2016
ORAL JUDGMENT :
Heard learned respective Counsel.
2. Present revision is questioning the
judgment and order delivered by the learned Family
court, Aurangabad, in Petition No. E-98 of 2008
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preferred by the respondent-wife claiming
maintenance. Learned Judge, Family Court,
Aurangabad, awarded maintenance of Rs. 1,200/- p.m.
to the respondent-wife w.e.f. 26th March, 2008 i.e.
from the date of application.
3. The facts as are necessary for deciding
the present revision application are as under :
4. The applicant claimed to have married with
respondent on 6th May, 2007, which fact is not in
dispute. It is then claimed that the petition
No. E-98 of 2008 came to be moved by respondent-
wife and Petition No. A-310 of 2009 filed by
respondent-wife for dissolution of marriage under
Section 2(2) of Dissolution of Muslim Marriage Act,
1939.
5. It is the case of applicant that on 26 th
May, 2008, a compromise was entered into between
the parties vide compromise pursis dated 26th May,
2008. It is alleged that the proceedings for
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restitution of conjugal rights were initiated
pursuant to the notice dated 12th March, 2008
issued by the applicant.
6. It is also claimed that 'Khulanama' was
executed between the applicant and respondent on
25th August, 2008 and as such, the petition for
dissolution of marriage being Petition No. A-310 of
2009 does not survive.
7. The learned Family Court awarded
maintenance to the present respondent-wife vide its
judgment which is impugned herein, after
considering the relationship of the applicant and
respondent as that of husband and wife, source of
the income of the husband, neglect to maintain
attitude on the part of the applicant.
8. The above referred judgment is questioned
in the present proceedings by the husband on the
ground that once it is held that in view of
'Khulanama' dated 25th August, 2008, the relations
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between the applicant and respondent as husband and
wife are severed legally, no right could be
conferred on the respondent-wife to claim the
maintenance under Section 125 of the Code of
Criminal Procedure. Learned Counsel then would
urge that, in absence of any matrimonial
relationship being divorced wife, the remedy under
the provisions of Muslim Women (Protection of
Rights on Divorce) Act, 1986 are available and not
under the provisions of Code of Criminal Procedure.
She would then submit that the present application
as such, needs to be allowed.
9. Mrs. Chincholkar, learned Counsel for the
respondent would support the order and submits that
the issue is no more res integra as regards the
claim of entitlement for maintenance of muslim wife
after divorce. She would invite my attention to the
judgment of the Apex Court in the matter of
Shabana Bano vs. Imran Khan reported in 2010(1)
Mh.L.J. (Cri.) 250, particularly paragraph Nos. 20
to 22 thereof.
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"20. Section 20 of the Family courts Act
appearing in Chapter VI deals with
overriding effect of the provisions of the
Act. The said section reads as under :
"20. Act to have overriding
effect. - The provisions of this Act
shall have effect notwithstanding
anything inconsistent therewith
contained in any other law for the time
being in force or in any instrument
having effect by virtue of any law
other than this Act."
21. Bare perusal of section 20 of the
Family Courts Act makes it crystal clear
that the provisions of this Act shall have
overriding effect on all other enactments
in force dealing with this issue.
22. Thus, from the abovementioned
provisions it is quite discernible that a
Family Court established under the Family
Act shall exclusively have jurisdiction to
adjudicate upon the applications filed
under section 125 of Criminal Procedure
Code."
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10. Having bestowed my thoughts to the
submissions made, it is required to be noted that
there is no 'khulanama' as is claimed to have been
executed between the parties, was formed to be
basis for rejection of the proceedings initiated
vide Petition No. A-310 of 2009 for dissolution of
the muslim marriage. The said proceedings were
initiated by respondent-wife.
11. It is then to be noted that learned Family
Court, while dealing with the claim brought before
it, has framed the issues at Exhibit-9 and after
considering the evidence of respective parties, has
ordered payment of maintenance. In support of the
claim, the respondent-wife has examined herself and
her father, whereas the applicant-husband has
examined himself. DW-2 Qazi Jamil Ahmed was also
examined in support of the claim for 'khulanama'.
12. In view of the contents of 'khulanama'
dated 25th August, 2008, which is consent divorce
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deed, the respondent could be treated as divorced
wife of the present applicant. Once it is brought
on record that she is divorced wife, the fact
remains that the applicant has not provided any
maintenance to her and rather neglected to
maintain. In view thereof, her entitlement for
maintenance could be easily inferred by
relationship of husband and wife. The entitlement
of divorced muslim woman for maintenance from her
husband could be rightly inferred from the judgment
of Shabana Bano (supra).
13. Learned Family Court has taken into
account the income of the applicant and has ordered
the payment of maintenance. In view thereof, in my
opinion, no case for interference, in revisional
jurisdiction, is made out. As such, criminal
revision application fails and stands rejected.
(N.W. SAMBRE, J.)
Tupe
