Case Note & Summary
The petitioner, Ashok Deochand Mali, filed a Criminal Writ Petition under Article 227 of the Constitution of India, challenging the judgment and order dated 27.08.2004 passed by the Judicial Magistrate First Class, Dhule, in Criminal Misc. Application No. 650 of 2002, and the revisional order dated 12.10.2004. The respondent, Malti Ashok Mali, had filed the maintenance application under Section 125 of the Code of Criminal Procedure, 1973 (CrPC), claiming maintenance from her husband. The petitioner and respondent were married on 11.05.1985 and had three daughters and one son. The petitioner contended that a customary divorce was effected between the parties on 18.10.2000 through a document called 'Panch Farkat', and therefore, the respondent was not entitled to maintenance under Section 125(4) CrPC. The trial court and the revisional court rejected this contention and granted maintenance. The petitioner argued that the lower courts failed to consider the effect of Section 125(4) CrPC. The respondent's counsel argued that the customary divorce document was unregistered and not recognized in law, and even if a divorce had taken place, the Supreme Court in Bai Tahira v. Ali Hussain Fissalli Chothia (1979 AIR SC 362) held that a divorced wife has a right to seek maintenance under Section 125 CrPC. The High Court considered the submissions and held that the customary divorce, even if presumed, does not disentitle the wife from claiming maintenance. The court dismissed the petition, affirming the maintenance order.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 CrPC - Customary Divorce - The petitioner husband challenged the maintenance order on the ground of customary divorce. The court held that even if a customary divorce has taken place, a divorced wife retains the right to claim maintenance under Section 125 CrPC, relying on Bai Tahira v. Ali Hussain Fissalli Chothia. The petition was dismissed. (Paras 1-6)
Issue of Consideration
Whether a customary divorce disentitles a wife from claiming maintenance under Section 125 of the Code of Criminal Procedure, 1973.
Final Decision
The petition is dismissed. The maintenance order is upheld.
Law Points
- Customary divorce does not disentitle a wife from claiming maintenance under Section 125 CrPC
- Divorced wife is entitled to maintenance under Section 125 CrPC
- Unregistered customary divorce document not recognized in law
