IQBALBANO versus STATE OF U.P. AND ANR.

Citation: [2007] 7 S.C.R. 949 · Decided: 05-06-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off
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Judgment (excerpt)

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IQBALBANO 
A 
v. 
STATE OF U.P. AND ANR. 
JUNE 5, 2007 
[DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.] 
B 
Code of Criminal Procedure, 1973 
s.125-Claim for maintenance by Muslim wife from her husband- C 
Maintainability of-Held: Conclusion by revisional court that in view of 
assertion in written statement about alleged divorce by utterance of words 
"Talak" "Talak" "Talak" three times and mentioning this in written statement 
amounted in law to divorce is not sustainable-Besides, proceedings uls. 12 5 
Cr.P.C. are civil in nature-Even if court notices that the claimant was a 
divorcee it was open to court to treat the petition one under Muslim Woman D 
(Protection of Rights on Divorce) Act-High Court would decide the matter 
keeping in view the principles indicated Jn the judgment-Muslim Woman 
(Protection of Rights on Divorce) Act, 1986-s.3. 
s. I 25-Proceedings under-Nature of-Held: Proceedings under the E 
section are civil in nature. 
Appellant was married to respondent no.2 in the year 1959. In the year 
1992 she filed an application under s.125 Cr. P.C. claiming maintenance. In 
the written statement, respondent no.2 stated that he had divorced the appellant 
by uttering "Talak" "Talak" "Talak", had paid "Mehr" and the "lddat" period F 
was over and, therefore, the claim was not maintainable. The Judicial 
Magistrate granted a monthly maintenance of Rs.450/- holding that there was 
no material to substantiate the plea of divorce. In the revision petition filed by 
the husband, the revisional court held that after the enactment of the Muslim 
Woman !Protection of Rights on Divorce! Act,1986, petition by any married G 
Muslim woman u/s. 125 Cr. P.C. was not maintainable; and such woman could 
claim maintenance under the Act and not under the Cr.P.C. It was also held 
that mention was made in the written statement about the divorce purportedly 
30 years back and the mentioning about this fact in law amounted to divorce. 
The writ petition of the wife having been dismissed summarily by the High 
Court, she filed the instant appeal. 
H 
949 
950 
SUPREME COURT REPORTS 
[2007) 7 S.C.R. 
A 
Disposing of the appeal and remitting the matter to the High Court, the 
B 
Court. 
HELD: 1.1. The view expressed by the first revisional court that no 
Muslim woman can maintain petition under Section 125 Cr.P.C. is clearly 
unsustainable. The Muslim Woman I Protection of Rights on Divorce I 
Act,1986 only applies to divorced woman and not to a woman who is not 
divorced. The conclusions that in view of the statement in the written statem,~nt 
about alleged divorce 30 years back by utterance of the words "Talak" "Talak" 
"Talak" three times is sufficient in law, is not sustainable. The conclusions 
about the Mehr having been paid and the lddat period is over has no relevance. 
C 
!Paras 6 and 711951-E, F; 952-F, GI 
Shamim Ara v. State of UP. and Anr., 1200217 SCC 518; Danial Latifi 
and Anr. v. Union of India, (200217 SCC 746 and Sabra Shamim v. Maqsood 
Ansari, (20041 9 SCC 616, relied on. 
D 
1.2. Proceedings under Section 125 Cr. P.C. are civil in nature. Even if 
the Court notices that there was a divorced woman in the case in question, it 
was open to the Court to treat it as a petition under the Act considering the 
beneficial nature of the legislation. Proceedings under Section 125 Cr. P.C. 
and claims made under the Act are tried by the same Court. 
E 
(Para 911956-E, F) 
Vijay Kumar Prasadv. State of Bihar and Ors., (2004[ 5 SCC 196, relied 
on. 
1.3. The order of High Court is set aside. The High Court while deciding 
F the Matter shall keep in view the principles indicated in the Judgment. 
!Para 10 and 1111957-A, BI 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 795 of 
2001. 
G 
From the Judgment and Order dated 06. I 0.1999 of the High Court of 
Judicature at Allahabad in Criminal Revision No. 1161 of 1995. 
T.N. Singh for the Appellant. 
S. Wasim A. Qadri, Mukesh Verma, Anuvrat Sharma, Sanjay Kumar 
H Singh (for Jatinder Kumar Bhatia) and R.C. Verma (for K.K. Gupta) for the 
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IQBALBANOv. STATEOFU.P. [PASAYAT.J.) 
951 
Respondents. 
A 
The Judgment of the Court was delivered by 
DR. ARIJIT PASAYAT, J. I. In the present appeal the appellant questions 
correctness of the order passed by a learned Single Judge of the Allahabad 
High Court dismissing her revision petition (Criminal Revision No.1161 of B 
1995). The appellant had questioned correctness of the order passed b
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