Mehbub Ali Vs Hasina Begum

For the Petitioner : Mr. P.K. Kalita, Senior Advocate. For the Respondent: Mr. D.K. Medhi, Advocate. Date of Hearing : 03.04.2025. Date of Judgment : 04.06.2025.

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JUDGMENT AND ORDER (CAV)

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Heard Mr. P.K. Kalita, the learned senior counsel appearing for the petitioner. Also heard Mr. D.K. Medhi, the learned counsel representing the sole respondent.

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2. This is an application under Section 397 of the Criminal Procedure Code read with Section 401 of the said Code challenging the judgment dated 22.04.2022 passed by the learned Judicial Magistrate First Class, Lakhimpur, North Lakhimpur in Misc. Case No.61/2018.

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3. The petitioner and the respondent were married on 10.10.2011. They were blessed with a son on 03.09.2013.

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4. The petitioner pronounced first talak on 25.08.2014. The second talak was pronounced on 26.09.2014 and the third talak was pronounced on 28.11.2014.

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5. Thereafter, the respondent filed an application under Section 125 of the CrPC claiming maintenance of ₹10,000/- for herself and another ₹10,000/- for her son. During her cross-examination, the respondent admitted that she got married to another person called Mustaf Ahmed. Finally, the trial court directed the petitioner to pay maintenance of ₹7,000/- per month to the respondent and another amount of ₹5,000/- for his son.

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6. The present revision petition has been filed on the ground that the proceeding under Section 125 of the CrPC was not maintainable because after enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986 a divorce woman and her husband must have an agreement to subject themselves to the jurisdiction of the Magistrate under Section 125 of the CrPC and must agree to be governed by the said provision. According to the petitioner, the respondent should have filed petition under Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The petitioner claimed that the respondent, on her own, is not entitled to invoke the provisions under Section 125 of the CrPC.

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7. In order to buttress his point, Mr. Kalita has relied upon a judgment of Hon’ble Bombay High Court that was delivered in Karim Abdul Rahman Shaikh v. Shehnaz Karim Shaikh, reported in 2000 0 Supreme (Bom) 845. The Hon’ble Bombay High Court had held that after the commencement of the Act of 1986, a Muslim divorced wife cannot apply for maintenance under the provisions of Section 125 of the CrPC. The divorced woman can file a petition under Section 125 of the CrPC if there is an agreement to that effect with her former husband.

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8. I have considered the submissions made by the learned counsel of both sides.

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9. In Mohd. Abdul Samad v. State of Telangana, (2025) 2 SCC 49, the Hon’ble Supreme Court has held as under –

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“ORDER OF THE COURT [Ed. : Signed by both Hon'ble Judges]

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What emerges from our separate but concurring judgments are the following conclusions:

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115.1. Section 125 CrPC applies to all married women including Muslim married women.

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115.2. Section 125 CrPC applies to all non-Muslim divorced women.

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115.3. Insofar as divorced Muslim women are concerned,

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115.3.1. Section 125 CrPC applies to all such Muslim women, married and divorced under the Special Marriage Act in addition to remedies available under the Special Marriage Act.

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115.3.2. If Muslim women are married and divorced under Muslim law then Section 125CrPC as well as the provisions of the 1986 Act are applicable. Option lies with the Muslim divorced women to seek remedy under either of the two laws or both laws. This is because the 1986 Act is not in derogation of Section 125 CrPC but in addition to the said provision.

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115.3.3. If Section 125 CrPC is also resorted to by a divorced Muslim woman, as per the definition under the 1986 Act, then any order passed under the provisions of the 1986 Act shall be taken into consideration under Section 127(3)(b) CrPC.

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115.4. The 1986 Act could be resorted to by a divorced Muslim woman, as defined under the said Act, by filing an application thereunder which could be disposed of in accordance with the said enactment.

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115.5. In case of an illegal divorce as per the provisions of the 2019 Act then,

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115.5.1. Relief under Section 5 of the said Act could be availed for seeking subsistence allowance or, at the option of such a Muslim woman, remedy under Section 125 CrPC could also be availed.

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115.5.2. If during the pendency of a petition filed under Section 125 CrPC, a Muslim woman is “divorced” then she can take recourse under Section 125 CrPC or file a

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petition under the 2019 Act.

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115.5.3. The provisions of the 2019 Act provide remedy in addition to and not in derogation of Section 125 CrPC.”

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10. So, the law is very clear. A divorced Muslim woman is entitled to seek maintenance from her former husband either under the provisions of Section 125 of the CrPC or under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986. It is her choice.

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11. So far as the claim that the respondent had remarried, it is the duty of the petitioner to prove that fact. Her simple admission is of no consequences to that effect.

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12. For the aforesaid premised reasons, this Court is of the opinion that there is no jurisdictional errors in the judgment dated 22.04.2022 passed by the learned Judicial Magistrate First Class, Lakhimpur, North Lakhimpur in Misc. Case No.61/2018.

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13. This Criminal Revision Petition is found to be devoid of merit and stands dismissed and disposed of accordingly.

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Send back the LCR.

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JUDGE

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Mehbub Ali v. Hasina Begum

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Mehbub Ali v. Hasina Begum

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