Dismissed

Mohd. Mustafa v. Kulsum Nisha @ Kusum Nisha

Allahabad HC18 Sept 2024CRLR/1140/2024

Case brief

AI extract

What is this about?

The High Court dismissed the revision against the Family Court's rejection of a maintenance application. The Court held that an arbitration agreement cannot annul a marriage; since no formal court order dissolved the marriage, the Family Court should decide the maintenance claim based on the true status of the parties' separation.

What did the court decide?

Revision dismissed; Family Court directed to consider arbitration and talaq aspects while deciding Section 125 Cr.P.C. application.

Mohd. Mustafa vs Kulsum Nisha @ Kusum Nisha — Maintenance and Alimony | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:64189

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Court No. - 11

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Case :- CRIMINAL REVISION No. - 1140 of 2024

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Revisionist :- Mohd. Mustafa Opposite Party :- Kulsum Nisha @ Kusum Nisha Counsel for Revisionist :- Pal Singh Yadav,Ashish Kumar Singh,Prathama Singh

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Hon'ble Abdul Moin,J.

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Heard learned counsel for the revisionist and Shri Sheikh Mohammad Ali, Advocate who files his vakalatnama on behalf of the respondent, which is taken on record.

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2 . Under challenge is the order dated 20.08.2024 passed by the learned Family Court in Case No.943 of 2019 In re Kusum Nisha vs Mohd Mustafa whereby the application No.C-11 filed by the revisionist has been rejected.

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3 . Contention of the learned counsel for the revisionist is that the revisionist-husband had divorced (Talaq) his wife i.e. the respondent on 11.03.1995. The parties had appeared for arbitration and the learned Arbitrator vide order dated 10.03.1996 had also recognized the said divorce.

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4. Subsequent thereto, an application for maintenance was filed by the respondent under Section 125 Cr.P.C. Considering the divorce between the parties and the respondent living separately, an application No.C-11 was filed by the revisionist for rejection of the application under Section 125 Cr.P.C. filed by the respondent No.2 as the respondent is living separately on account of mutual agreement.

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5 . It is contended that the learned court has rejected the application without considering the aforesaid aspect of the matter, hence the instant revision.

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6 . Aforesaid argument of the learned counsel for the

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revisionist is found to be patently misconceived. The reason is that it is settled proposition of law that by means of an arbitration a marriage cannot be annulled. Thus, once the marriage itself has not been annulled consequently there was no occasion for the learned Family Court to have considered the application filed by the revisionist of divorce having taken place on 11.03.1995 and the said divorce having been recognized by the Arbitrator.

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7 . In this regard, the Court may refer to the Division Bench judgment of this Court in the case of Smt Pinki vs Pushpendra Kumar passed in First Appeal No.155 of 2011, decided on 06.09.2024 wherein though this Court was considering the proceedings under the provisions of Hindu Marriage Act, 1955 yet the Court specifically held that the marriage is not to be dissolved or terminated as a contract. The aforesaid proposition of law would also be applicable in the case in hand inasmuch admittedly, there is no formal order of any Court dissolving the marriage between the parties and thus the said agreement cannot be said to have dissolved the marriage.

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8 . Considering the aforesaid no case for interference is made out. The revision is dismissed . However, it would be open for the learned Family Court to consider the aforesaid aspect of the matter while finally deciding the application under Section 125 Cr.P.C.

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Order Date :- 18.9.2024 prateek

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Digitally signed by :- PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Mustafa v. Kulsum Nisha @ Kusum Nisha

Case brief

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Mohd. Mustafa v. Kulsum Nisha @ Kusum Nisha

Case brief

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