JUDGMENT
V.S. Sirpurkar, J.
1. Rule returnable forthwith. Heard the learned Counsel for the parties.
2. This is a Revision Application under Section 397 of the Criminal Procedure Code wherein the order passed by the Trial Court granting maintenance under Section 125 of Criminal Procedure Code is sought to be challenged. Following is the prayer:
“It is, therefore, humbly prayed on the point of law and facts mentioned above as per records, the order passed granting maintenance under Section 125 of Cr. P.C. to the Respondent (Applicant) be quashed and set aside and till the decision of this case further proceedings in Misc. Criminal Case Nos. 141/95 & 147/95 under Section 125(3), Cr. P.C. pending before J.M.F.C., 3rd Court Chandrapur be stayed by passing a suitable order.”
Initially wife Rukaiya Khatoon filed an application under Section 125 of the Criminal Procedure Code. In her application, she pointed out that she was married on 22.5.1988 at Durgapur Colony and cohabited with her husband the present applicant. However, she started being ill-treated by the husband and his relatives as they complained that they did not get sufficient dowry. She further contended that all her golden ornaments were taken away by the non-applicant on 19.8.1989. She further contended that she conveyed about the ill-treatment to her brother and she was rescued by her brother and thereafter she continued to stay with her mother. She further contended that the present applicant did not pay any heed to her maintenance and she was unable to maintain herself. On that count she claimed the maintenance under Section 125 of Criminal Procedure Code.
3. The non-applicant/husband appeared and contested the claim of the applicant/wife. He raised a plea that the marriage of Rukaiya Khatoon was initially settled with Sayyad Rais but since he demanded the dowry of Rs. 12,000/- alongwith golden ornaments, the said marriage was broken and with the lofty ideals to save the parents from being defamed in the society, the present applicant had married Rukaiya Khatoon without expecting any dowry. He claimed that the wife was insisting on residing separately from his parents and since he could not do it, she was not prepared to stay with him. His further defence is that he himself was wrongfully confined and an offence under Section 498-A of the Indian Penal Code was also registered against him falsely at the instance of the wife and her relatives. He claimed that she was well-educated and could maintain herself. Inaddition to this to claimed that on 11.5.1991 she was divorced before the members of Gosiya Masjid Committee.
4. On the facts, the Trial Court came to the conclusion that the husband was not able to prove that he had divorced his wife. He came to this conclusion on the basis of the evidence of one Sherif Sheikh Gulab Qureshi who was a Committee Member of Gosiya Masjid, who deposed that at the time of divorce itself the husband had demanded Rs. 10.000/- which was against the tenets of Islamic Law. The said witness claimed that there was no divorce. The Trial Court also came to the conclusion that the husband had not even pronounced the Talaq as was required by Islamic Law. He, therefore, came to the conclusion on facts that the alleged divorce between the husband and the wife was not established at all. On the point of ill-treatment, he came to the conclusion that the wife was ill-treated. He also further confirmed that she was unable to maintain herself and also that the husband had refused or neglected to maintain her and that she was justified in staying separately. On that count, he granted the maintenance at the rate of Rs. 150/- per month from the date of passing of the order which was 16.5.1994.
5. Significantly enough, only one Revision came to be filed against this order dated 16.5.1994 which was at the instance of the wife. She complained that the maintenance should have been graiited from the date of the application and not from the date of the order. The learned Sessions Judge before whom this Revision was registered as Criminal Revision No. 132/94 allowed the same. Relying on the reported ruling of this Court in Kamalabai Khanderao Thete and Anr. v. Khanderao Murlidhar Thete and Anr., 1990 Vol. I Mh. LJ. 108, he came to the conclusion that the maintenance should have been awarded from the date of the application and not from the date of the order. This was, therefore, the last order passed in the matter.
6. Thereafter on 22.12.1995 the present Revision came to be filed in which the prayer as indicated above in this judgment was made. Strangely enough, in this Revision by ground No. 2, the husband/applicant/wife was a divorcee at least as per the written statement and amendment and that the divorce had become effective from the date of her knowledge of the divorce from the written statement and, therefore, she had lost her status as a wife and that as per the Muslim Law, she was entitled only for maintenance of Iddat period. Further grounds are that for effecting a Talaq, it is not necessary for a Muslim husband to pronounce the same in presence of the wife and same could be done even in her absence and that no evidence was required to prove the Talaq. The last ground No. 6 raised is that the Court erred in granting the maintenance under Section 125 of Criminal Procedure Code when in fact it was proved by the members of the Gosiya Masjid Committee that the wife was divorced on 11.5.1991. The last sentence of Ground No. 6 runs as under :
“Thus under Section 125 of Cr.P.C.the Court cannot grant maintenance to divorcee from the date of 16.5.1994 onwards and it was also granted even by the Revisional Court from the date of 2.2.1990 when she was the wife but she was not the wife but a divorcee under Mohammedan Law,”
A notice was sent to the wife and Shri Rizwi, Advocate appears for the non-applicant and is heard-
7. Mr. S. Ziauddin, the learned Counsel for the applicant, very strenuously submitted that under the tenets of Mohammedan Law a divorced wife cannot claim maintenance. All that she was entitled to claim was the maintenance during the Iddat period. He is undoubtedly correct in his submission. However, his further submission that the Court, therefore, should not have granted the maintenance in this case does not appear to be correct.
8. In the first place, as is pointed out by Mr. Rizwi, the husband did not challenge the order passed granting maintenance by the Trial Court. There is no doubt that a plea of divorce was raised before the Trial Court by the husband. However, it will have to be remembered that a mere raising of plea does not oust the jurisdiction of the Court and the factum of Talaq or divorce as the case may be has to be established by evidence particularly where it is a contested position. The Trial Court had come to a conclusion that the husband was not able to establish this fact of his having divorced his wife on 11.5.1991. It will be seen that the original application is dated 2.2.1990 while as per the contention of the husband he had divorced his wife on 11.5.1991. There can be no dispute, therefore, that at least from the date of application dated 2.2.1990 till the alleged divorce was given on 11.5.1991 the application by the wife under Section 125 was perfectly legal and maintainable in law. The question is of the further period and the Trial Court had on the basis of the evidence led before it by the parties come to a finding of fact that the fact of this divorce was not at all proved.
9. Now if this finding of the Trial Court was to be challenged on any grounds, it was upto the husband to file a revision against the same which would be the ordinary remedy. The said Revision could have been filed either before the Sessions Judge or before this Court also as there is preliminary right to choose a Court. It is apparent that no such Revision came to be filed by the husband either before the Sessions Court or before this Court. The only Revision which was filed against the order dated 16.5.1994 was at the instance of the wife wherein she challenged the order only in so far as its operation from the date of the passing of the order and her contention was rightly accepted by the Sessions Judge in the Revision that the order should have been made effective from the date of making an application. Indeed before the Sessions Judge though the present application was represented by a Counsel absolutely no objection was taken to the jurisdiction of the Trial Court nor was a separate Revision filed at the instance of the husband. Thus, the order on facts as well as on law passed by the Trial Court became final and attained the finality.
10. The question is whether the applicant could have challenged the Trial Court’s order now before this Court in a Revision under Section 397 of Criminal Procedure Code. I am afraid the remedy as chosen by ” the husband now to challenge the order of the Trial Court is absolutely uncalled for. In the first place, if this Revision is to be treated as a Revision against the order of the Trial Court dated 16.5.1994 it is hopelessly barred by limitation. There is no prayer made by the applicant-by making a separate application or otherwise for the condonation of delay in filing that application. On the other hand, the applicant seems to have avoided the objection of limitation by coming up against the order passed by the Sessions Judge which was on 27.9.1995. Therefore, against the order of Sessions Judge the Revision would be perfectly maintainable but Mr. Ziauddin submits that he has to challenge even the order of grant of maintenance and indeed the prayer does confirm to these submissions. I am afraid, the Revision could not be treated at this stage against the order by the Trial Court which order was allowed to attain a finality by the husband by not challenging the same in a proper Forum in the proper time. The only scope for a Revision would, therefore, be whether the order should be made applicable from the date of order or from the date of application. Strangely enough, in the whole Revision there is not a single ground raised regarding that aspect. I had deliberately repeated the grounds which have been raised in this revision by Mr. Ziauddin. There is not a single ground raised nor any challenge made to the finding by the Sessions Judge implementing the order from the date of application under Section 125 and not from the date of the order of the Trial Court. There is not even a whisper on the said point. However, Mr. Ziauddin submitted that this being a question of law should be argued by him. I have, therefore, permitted to argue the said question.
11. Mr. Ziauddin was unable to find out any authority suggesting that the order granting maintenance should be implemented from the date of order and not from the date of application. He relies heavily on the language of Section 125(2) which runs as under :
“Such allowance shall be payable from the order, or, if so ordered; from the date of the application for maintenance.”
He, therefore, submits that the maintenance if at all to be ordered has to be from the date of the order which would be a normal rule and grant of maintenance from the date of the application would be only by way of an exception. Now as has already been pointed out, this Court in the afore-mentioned ruling of Kamalabai, cited supra, has unequivocally held that the normal rule is to grant maintenance from the date of application and not from the date of the order and it is only where there are exceptional cases for valid reasons that it is open to the Magistrate to grant maintenance from the subsequent date. This ruling is by this Court had I respectfully agree with the same. That apart, the language of Sub-section does not in any manner support the contention of the learned Counsel. Even on merits, the learned Sessions Judge has given good reasons besides relying upon the ruling. The learned Sessions Judge has pointed out that the proceedings were delayed probably because the husband was required to make an application for amendment. The Sessions Court has rightly concluded that this could not be an exceptional circumstance and could not be the reason for granting the maintenance from the date of the order. The observation by the learned Sessions Judge in this behalf is correct and is confirmed.
12. In the result, this Revision has no substance and must fail. Hence, the Revision is dismissed.