In a writ petition filed by a husband registering a grievance over the dismissal of his revision application due to delay, the Full Bench of this court observed that the delay was not explained and noted the settled legal position regarding maintenance claims.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 W 1854.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.1854 OF 2010
Soheb Abdul Reheman Khatri versus
Afrin Soheb Khatri & Anr.
..Petitioner
..Respondents
Mr.V.S.Mali for the Petitioner. Mr.S.A.Shaikh APP for State.
CORAM : V.M.KANADE, J.
DATED : JULY 26, 2010.
P.C. :
Heard learned counsel for the petitioner and learned APP for the
State.
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was urged that the petitioner has given divorce to the respondent-wife and, therefore, the said application under section 125 of CrPC was not maintainable. Learned counsel for the petitioner has relied on the judgment of the learned Single Judge of this court in Shaikh Mohamed s/o Shaikh Vajir Patil Vs. Naseembegum w/o SK.Mohamed and Anr. and also the judgment of another learned Single Judge in the case of Syed Younus s/o Dadamiya Vs. Jabeem w/o Syed Younus reported in 2006 (5) Maharashtra Law Journal Page 339 and 2009 (2) Maharashtra Law Journal Page 402 respectively wherein it has been held that an application filed by the Muslim divorced women under section 125 of the Code of Crimical Procedure without following the due procedure as contemplated under section 5 of the Muslim Women Act itself would not be maintainable. The learned APP for the State, on the other hand, submitted that it was duty of the husband to prove that he has given lawful divorce to his wife and mere averment in the written statement was not sufficient for dismissing the application under section 125. He invited my attention to the judgment of the Full Bench of this court in Dagdu Chotu Pathan Vs. Rahimbi Dagdu Pathan and Others 2002(3) Maharashtra Law Journal Page 603.
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allowed, in view of clear, legal and settled position that the husband has to prove that he has given proper legal divorce to his wife in the proceedings under section 125. The petitioner - husband, therefore, otherwise would not have succeeded in the said criminal revision application filed by him challenging issuance of process by the learned Magistrate on the application filed by the respondent-wife under section 125 of the Code of Criminal Procedure. The reliance placed on the judgment by the petitioner, in my view, will not apply in view of ratio of the judgment given in the Full Bench in case of Dagdu Chotu Pathan. Hence the writ petition is dismissed.
maintainability of the maintenance application filed by the respondent-wife are kept open.
(V.M.KANADE, J.)
2 issues framed by the court
Whether the revision application filed by the petitioner should be set aside despite unexplained delay.
Whether the husband is required to prove lawful divorce for the dismissal of a section 125 CrPC maintenance application against him.
Colour shows how this judgement treated each authority
Shaikh Mohamed s/o Shaikh Vajir Patil Vs. Naseembegum w/o SK.Mohamed and Anr.Referred¶16
Syed Younus s/o Dadamiya Vs. Jabeem w/o Syed Younus, 2006 (5) Maharashtra Law Journal Page 339Referred¶16
Syed Younus s/o Dadamiya Vs. Jabeem w/o Syed Younus, 2009 (2) Maharashtra Law Journal Page 402Referred¶16
Dagdu Chotu Pathan Vs. Rahimbi Dagdu Pathan and Others, 2002(3) Maharashtra Law Journal Page 603Distinguished¶17
3 provisions across 2 enactments
Soheb Abdul Reheman Khatri
Afrin Soheb Khatri
V.M. Kanade
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
