Remanded

Mehajbin Mujammil Shaikh and Anr. v. Mujammil Rahim Shaikh and Anr.

Bombay HC14 Mar 2011REVN/659/2007

Case brief

AI extract

What is this about?

The High Court set aside the Family Court order that rejected the wife's maintenance application solely on the ground of divorce. The Court held the application was maintainable and directed the Family Court to decide the claim on merits, relying on the Supreme Court judgment in Shabana Bano vs. Imran Khan.

What did the court decide?

The order dated 11.9.2007 rejecting the maintenance application is set aside; the petition is restored to the Family Court for hearing and disposal on merits within four months.

Mehajbin Mujammil Shaikh and Anr. Vs Mujammil Rahim… — Maintenance and Alimony | Bombay HC (2011)

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USJ

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL REVISION APPLICATION NO.659 OF 2007

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Mrs. Mehajbin Mujammil Shaikh .. Applicants / & Anr. Petitioners

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v/s.

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Mr. Mujammil Rahim Shaikh & Anr. .. Respondents

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Mr. V.A. Shastry for the applicants None for the respondents

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CORAM : R.Y.GANOO, J. DATE : 14^th MARCH, 2011

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P.C. :

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This application was admitted by order dated 5^th December, 2008. Learned advocates Mr. A.B. Tidke and Mr. R.V. Newton have filed vakalatnama for respondent no.1. They are absent when called out.

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The petitioner no.1 claims to be the wife of respondent no.1. According to petitioner no.1, petitioner no.2 is the son born out of the wedlock between petitioner no.1 and respondent no.1. The petitioner no.1 claims to be the wife of respondent no.1 on the date of filing of

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Petition No.E-285 of 2004 in the Family Court at Pune by which petitioners had sought maintenance for themselves i.e. petitioner no.1 sought maintenance in her capacity as wife of respondent no.1 and petitioner no.2 sought maintenance in his capacity as son of respondent no.1.

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According to respondent no.1, respondent no.1 had divorced petitioner no.1 and that is why he was not liable to maintain petitioner no.1. The said Petition No.E-285 of 2004 was decided by the learned Judge of the Family Court finally by his order dated 11^th September, 2007. Learned Judge of the Family Court rejected the application of petitioner no.1 for maintenance under Section 125 of the Code of Criminal Procedure on the ground that a divorced woman is not entitled for maintenance. Learned Judge of the Family Court granted maintenance to petitioner no.2 @ Rs.1,000/- per month from the date of the application filed by petitioner no.2.

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The petitioner no.1 has challenged this order dated 11^th September, 2007 to the extent of rejecting the application for maintenance filed by petitioner no.1.

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I have considered the text of the petition. Learned Counsel Mr.

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Shastry appearing on behalf of the petitioners submitted that learned Judge of the Family Court failed to appreciate the point involved in the matter. Mr. Shastry submitted that even if the stand of respondent no.1 is accepted that petitioner no.1 has been divorced by respondent no.1, petitioner no.1 is entitled to apply for maintenance in view of Section 125 of the Code of Criminal Procedure before the Family Court and that Family Court shall have to decide the matter on merits and pass appropriate order. Learned Counsel Mr. Shastry appearing on behalf of the petitioners submitted that view taken by the learned Judge of the Family Court is not in consonance with Judgment delivered by the Supreme Court in the case of Shabana Bano Vs. Imran Khan reported in 2010(1), SCC 666. Learned Counsel Mr. Shastry submitted that the learned Judge of the Family Court has jurisdiction to try and entertain the application filed by a Muslim wife for maintenance even if the marriage between female Muslim and male Muslim is dissolved in accordance with the provisions of law. He pointed out that even if the stand of the husband that petitioner no.1 has been divorced by respondent no.1, still the learned Judge of the Family Court has to entertain the application and decide on merits.

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After having considered the submissions and the judgment cited across the bar as mentioned aforesaid, I am inclined to accept the

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submission advanced by learned Counsel Mr. Shastry. It was necessary for the learned Judge of the Family Court to hear the application on merits and pass the appropriate order. The view taken by the learned Judge of the Family Court that the application is not maintainable is not correct. It is for these reasons order dated 11^th September, 2007 passed against petitioner no.1 rejecting her application for maintenance is required to be set aside and the application is required to be restored to the file to see that the said application is decided in accordance with the provisions of law.

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For the reasons mentioned aforesaid, the application is disposed of by passing following order.

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ORDER

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(i) Rule is made absolute. Order dated 11^th September, 2007 passed by the learned Judge of the Family Court - II, Pune in Petition No.E-285 of 2004 rejecting the application for maintenance filed by petitioner no.1 for herself is set aside.

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(ii) The said Petition No.E-285 of 2004 is restored to the file of the said Court namely Family Court II, Pune, Learned Judge of the Family Court is directed to hear and decide the said Petition No.E-285 of 2004 as regards the claim of petitioner no.1 for

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maintenance against respondent no.1.

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(iii) Learned Judge of the Family Court shall hear and dispose of the Petition No.E-285 of 2004 within four months from the receipt of this order.

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(iv) Petitioner no.1 is permitted to place before the learned Judge of the Family Court authenticated copy of this order so that learned Judge can proceed to hear and dispose of the matter as mentioned above. There shall be no order as to costs.

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(v) Revision Application is disposed of in the above terms.

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(R.Y.GANOO, J.)

Mehajbin Mujammil Shaikh and Anr. v. Mujammil Rahim Shaikh and Anr.

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Mehajbin Mujammil Shaikh and Anr. v. Mujammil Rahim Shaikh and Anr.

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