ORDER
Amareshwar Sahay, J.
1. In this application the petitioner has challenged the legality of the order dated 14.72004 passed by the Principal Judge, Family Court, Dumka awarding maintenance in favour of the applicant/wife, directing the petitioner/husband to pay Rs. 500/- P.M. from the date of filing of the application under Section 125, Cr PC.
2. The facts in short are that an application under Section 125, Cr PC was filed by Halima Khatoon, i.e. the opposite party herein, for grant of maintenance allowance of Rs. 500/- P.M. It was stated by her that she was legally married wife of the petitioner herein and the marriage between them was solemnized on 3.5.1993 according to Muslim rites and rituals. At the time of marriage, huge amount of dowry was demanded by the husband but the father of the applicant paid only Rs. 25,000/- cash and gave one motorcycle and a wrist watch to her husband but since, he was not satisfied and, therefore, he started pressurizing her to bring more dowry. He used to tell her that she was of black complexion and was ugly looking. He started torturing him and ultimately, in February 1997 she was driven out from her matrimonial house. It was further alleged that the opposite party again married with one Azhela Bibi. She stated that she had no means of income to maintain herself, whereas her husband had got sufficient means and landed property but had neglected to maintain her.
The petitioner herein, i.e. the opposite party in the Court below, objected the prayer for grant of maintenance by stating that he has already divorced his wife by pronouncing Talaque’ on 15.1.1998 and the written Talaquenama’ was also handed over to her and, therefore, there was no relationship of husband and wife between them and, as such, she was not entitled to maintenance because a divorced Muslim woman is not entitled to maintenance.
3. Both the parties in support of their case adduced evidence. By the impugned order, the learned Principal Judge, Family Court, Dumka held that the petitioner (the husband) I failed to prove his case that he had given Talaque’ to the opposite party (wife) and that there was no relationship of husband and wife between them. It was further held that the marriage between the parties was solemnized as per Muslim custom and rituals and they were husband and wife. It was further held that the materials on record categorically proved that the opposite parties (petitioner herein) was having sufficient means of income and the applicant/wife was residing at her parent house and the husband, i.e. the petitioner herein, failed and neglected to maintain his wife.
In view of the above finding the learned Principal Judge, Dumka, allowed the application under Section 125, Cr PC filed by the applicant wife and directed the husband, i.e. the petitioner herein, to pay maintenance allowance of Rs. 500/- P.M. to his wife from the date of the application, which has been challenged in this revision application.
4. Mr. Sinha, learned Counsel appearing for the petitioner has advanced two-fold argument. Firstly, that since the wife, i.e. opposite party was a divorced woman, who was divorced by the petitioner on 15.1.1998, the application under Section 125, Cr PC was not maintainable by her and she at best could have filed application under the Muslim Women (Protection of Rights on Divorce) Act, 1986. in support of his submission he has relied on a decision of the Supreme Court in the case of Danial Latifi and Ors. v. Union of India .”
Secondly, it was contended that a petition for maintenance by a Muslim woman under Section 125, Cr PC would not be maintainable in absence of the consent of the parties under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
5. On the other hand Mr. Misra, learned Counsel appearing for the opposite party has submitted that the petitioner-husband failed to prove that he has divorced his wife, i.e. the opposite party herein and, since, the Principal Judge, on the facts and materials on record came to specific finding that the husband has failed to prove the divorce and the relationship of husband and wife between the parties is existed, the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was not applicable in the facts and circumstances of the present case.
6. There is no dispute on the point that a Muslim divorced woman if wants maintenance allowance, she has to take the shelter of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and Section 125, Cr PC will only be applicable to them if both the parties give their consent in that regard as provided under Section 5 of the aforesaid Act, i.e. The Muslim Women (Protection of Rights on Divorce) Act, 1986.
7. In the present case, what I find that though the petitioner/husband took the plea that he has divorced his wife on 15.1.1998 but as I find from the impugned order of the Principal Judge wherein the learned Principal Judge after noticing the fact that the husband has stated in his cross-examination that at the time of pronouncement of Talque’ his wife Halima was not present there and he has also not paid the amount of “Dain-Mehar” at the time of Talaue” rather, on consideration of the oral evidence and materials on record, the learned Principal Judge has held that the opposite party/husband has failed to bring any evidence on record to show that with regard to pronouncement of ‘Talaque’ any document was’ prepared and the ‘Talaque’ was communicated to the wife. Rather from the evidence of the opposite party/husband itself it was clear that the pronouncement of ‘Talaque’ was not communicated to the wife.
In view of this finding, the learned Principal Judge held that there was no divorce between the parlies and the relationship of husband and wife is existed between them and, accordingly, he allowed the prayer for maintenance.
8. This finding of the learned Principal Judge, which was passed on the materials on record, cannot be disturbed in revision unless it is specifically shown’ that the; finding on facts arrived at by the Principal Judge was either not based on record or was perverse in any manner. But no such ground has been taken or argued on behalf of the petitioner. The provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 would only be applicable where the applicant is a divorcee Muslim woman and not otherwise. In the present case, the applicant wife was not a divorcee and, therefore, the aforesaid Muslim Women (Protection of Rights on Divorce) Act, 1986 has got no application.
9. In this view of the matter, the submissions on behalf of the petitioner that the application under Section 125, Cr PC was not maintainable or that the consent under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was not given by the parties, cannot be accepted and, hence, is rejected.
The decision of the Supreme Court in the case of Danial Latifi and Ors. v. Union of India (supra) is not applicable in the facts and circumstances of this case as in the said case the Supreme Court was deciding a matter regard to the rights of a divorced Muslim woman.
10. In view of my discussions and finding above, I hold that the application of the opposite party under Section 125. Cr PC before the Court below was very much maintainable and I do not find any illegality in the impugned order, passed by the learned Principal Judge, awarding maintenance to the opposite parties.
Accordingly, having found no merit in this application, the same is hereby dismissed.