Sau. Noorjahan W/O Salim Geegani vs Mohd. Salim Haji Shakur Geegani
2022 Latest Caselaw 6957 Bom

                                  1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR.

                 CRIMINAL WRIT PETITION NO. 87/2012


          Sau. Noorjahan w/o Salim Geegani,
          aged about 42 years, Occ. Household,
          R/o. Mehkar, Tq. Mehkar, Dist. Buldana.

                                                    ... PETITIONER

                               VERSUS

          Mohd. Salim Haji Shakur,
          Geegani, aged about 52 years,
          Occ. Legal Practitioner & Trade,
          Tq. & Dist. Nanded.
                                                    ... RESPONDENT
_____________________________________________________________
       Mr. Sibghatullah Jagirdar, Advocate for petitioner.
       None for respondent - sole.
______________________________________________________________

                    CORAM                    : VINAY JOSHI, J.

                    DATE OF JUDGMENT         : 20.07.2022.

ORAL JUDGMENT :

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 would be no justification

for denial of maintenance from the date of application which is normal

course. There is no resistance to the position as canvased by the

petitioner/lady nor respondent has shown that he has paid the

maintenance during the pendency.

8. Having regard to the above facts, a case of interference is

made out. In view of that, petition is allowed. The impugned order

dated 30.11.2011 passed in criminal revision No. 118/2011 is modified

to the extent of grant of maintenance as awarded therein from the date

of application i.e. from 22.03.2000. Petition stands disposed

accordingly.

(VINAY JOSHI, J.) Gohane Digitally signed by JITENDRA JITENDRA BHARAT GOHANE BHARAT Date:

GOHANE     2022.07.21
           16:15:39
           +0530