# Smt. Shakeela Bano Revisionist v. Saleem Uddin - **Citation:** (2016) 3 ILRA 874 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-02-19 - **Bench:** Sudhir Kumar Saxena - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shakeela-bano-revisionist-v-saleem-uddin-43616 - **Pages:** 4 ## Headnote Criminal Procedure Code 1973. - Section 125 - Muslim wife - Divorce - Triple talaq - Factum of divorce not proved - Pronouncement of talaq during cross-examination - Reasonable cause - Attempt of reconciliation - Two arbiters - Divorce not valid mode - Maintainability of application under Section 125 Cr.P.C. - Divorcee Muslim woman - Entitled to maintenance - Till she remarries - Order dated 29.03.2004 set aside - Revision allowed - Matter remanded This revision has been filed against the judgment and order dated 29.03.2004 passed by Additional Sessions Judge, Hamirpur. Briefly stated facts are that revisionist-Smt. Shakeela Bano was married with Saleem Uddin (opposite party) on 15.11.1987. A son was born out of wedlock in the year 1988, who expired after 7-8 months. Another child was born, who also died in the year 1989. Revisionist was expelled from her in-law's house in the stage of pregnancy, which compelled her to file application under Section 125 Cr.P.C. on 04.11.2000.(Para-3) Husband, in his written statement while admitting the marriage made allegations of adultery against wife and that he divorced on 01.12.1989 by pronouncing triple divorce, consequently, application under Section 125 Cr.P.C. was not maintainable. Other defences were also taken. Learned Magistrate vide order dated 28.11.2002 allowed the application and awarded a sum of Rs. 500/- per month towards maintenance from the date of order. (Para-4) Two revisions were filed against the aforesaid order, one by husband challenging the order on the ground that proceedings under Section 125 Cr.P.C. are not maintainable and the other one by wife seeking enhancement of the amount of maintenance, that too, from the date of application.(Para-5) Learned Sessions Judge came to the conclusion that Smt. Shakeela Bano having been divorced by husband, proceedings under Section 125 Cr.P.C. are not maintainable. Consequently, revision filed by husband was allowed and the revision filed by wife was dismissed. Against the order dated 29.03.2004 3 All. Smt. Shakeela Bano Vs Saleem Uddin 875 passed by Additional Sessions Judge/FTC No. 1, Hamirpur, writ petition was filed which was later on converted into instant criminal revision (Para-6) Held:(Paras- 13-17) It is thus apparent that now there is no dispute with regard to maintainability of application under Section 125 Cr.P.C. on behalf of divorcee wife, till she remarries. In view of the discussions made above, impugned judgment cannot be sustained. Revision filed by wife was dismissed on the sole ground of nonmaintainability of application under Section 125 Cr.P.C., which ground has not been found valid. Consequently, this revision is allowed. Order dated 29.03.2004, passed by Additional Sessions Judge, Hamirpur is set aside. Revisional court is directed to pass afresh order in accordance with the observations made in the judgment, on both the revisions. Case Law discussed: Shamim Ara vs. State of Uttar Pradesh and Anr., JT 2002 (7) SC 520(Para-9) Must. Rukia Khatun vs. Abdul Khalique Lasker, (1981) 1 GLR 375(Para-9) Shamim Bano vs. Asraf Khan, 2014 Law Suit (SC) 317(Para-11) Danial Latifi and Another vs. Union of India, (2001) 7 SCC 740(Para-11) Shamima Farooqui vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015(Para-12) Shabana Bano v. Imran Khan, (2010) 1 SCC 666(Para-12) ## Text 874 INDIAN LAW REPORTS ALLAHABAD SERIES order will not preclude the State Government to avail such other remedies as available to it under law. ---------- REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 19.02.2016 BEFORE THE HON'BLE SUDHIR KUMAR SAXENA, J. Criminal Revision No.- 3711 of 2004 Smt. Shakeela Bano ...Revisionist Versus Saleem Uddin ....Opposite Party Counsel for the Revisionist: Lihazur R. Khan, Ashutosh Pandey,Lihazur Khan,Z. Khan. Counsel for the Opposite Party: Govt. Advocate, M.A. Qadeer,Manish Kumar Nigam,Mohd. Waris. Criminal Procedure Code 1973. - Section 125 - Muslim wife - Divorce - Triple talaq - Factum of divorce not proved - Pronouncement of talaq during cross-examination - Reasonable cause - Attempt of reconciliation - Two arbiters - Divorce not valid mode - Maintainability of application under Section 125 Cr.P.C. - Divorcee Muslim woman - Entitled to maintenance - Till she remarries - Order dated 29.03.2004 set aside - Revision allowed - Matter remanded This revision has been filed against the judgment and order dated 29.03.2004 passed by Additional Sessions Judge, Hamirpur. Briefly stated facts are that revisionist-Smt. Shakeela Bano was married with Saleem Uddin (opposite party) on 15.11.1987. A son was born out of wedlock in the year 1988, who expired after 7-8 months. Another child was born, who also died in the year 1989. Revisionist was expelled from her in-law's house in the stage of pregnancy, which compelled her to file application under Section 125 Cr.P.C. on 04.11.2000.(Para-3) Husband, in his written statement while admitting the marriage made allegations of adultery against wife and that he divorced on 01.12.1989 by pronouncing triple divorce, consequently, application under Section 125 Cr.P.C. was not maintainable. Other defences were also taken. Learned Magistrate vide order dated 28.11.2002 allowed the application and awarded a sum of Rs. 500/- per month towards maintenance from the date of order. (Para-4) Two revisions were filed against the aforesaid order, one by husband challenging the order on the ground that proceedings under Section 125 Cr.P.C. are not maintainable and the other one by wife seeking enhancement of the amount of maintenance, that too, from the date of application.(Para-5) Learned Sessions Judge came to the conclusion that Smt. Shakeela Bano having been divorced by husband, proceedings under Section 125 Cr.P.C. are not maintainable. Consequently, revision filed by husband was allowed and the revision filed by wife was dismissed. Against the order dated 29.03.2004 3 All. Smt. Shakeela Bano Vs Saleem Uddin 875 passed by Additional Sessions Judge/FTC No. 1, Hamirpur, writ petition was filed which was later on converted into instant criminal revision (Para-6) Held:(Paras- 13-17) It is thus apparent that now there is no dispute with regard to maintainability of application under Section 125 Cr.P.C. on behalf of divorcee wife, till she remarries. In view of the discussions made above, impugned judgment cannot be sustained. Revision filed by wife was dismissed on the sole ground of nonmaintainability of application under Section 125 Cr.P.C., which ground has not been found valid. Consequently, this revision is allowed. Order dated 29.03.2004, passed by Additional Sessions Judge, Hamirpur is set aside. Revisional court is directed to pass afresh order in accordance with the observations made in the judgment, on both the revisions. Case Law discussed: Shamim Ara vs. State of Uttar Pradesh and Anr., JT 2002 (7) SC 520(Para-9) Must. Rukia Khatun vs. Abdul Khalique Lasker, (1981) 1 GLR 375(Para-9) Shamim Bano vs. Asraf Khan, 2014 Law Suit (SC) 317(Para-11) Danial Latifi and Another vs. Union of India, (2001) 7 SCC 740(Para-11) Shamima Farooqui vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015(Para-12) Shabana Bano v. Imran Khan, (2010) 1 SCC 666(Para-12) (Delivered by Hon'ble Sudhir Kumar Saxena, J.) 1. List revised. 2. Heard learned counsel for the revisionist. 3. This revision has been filed against the judgment and order dated 29.03.2004 passed by Additional Sessions Judge, Hamirpur. Briefly stated facts are that revisionist-Smt. Shakeela Bano was married with Saleem Uddin (opposite party) on 15.11.1987. A son was born out of wedlock in the year 1988, who expired after 7-8 months. Another child was born, who also died in the year 1989. Revisionist was expelled from her in-law's house in the stage of pregnancy, which compelled her to file application under Section 125 Cr.P.C. on 04.11.2000. 4. Husband, in his written statement while admitting the marriage made allegations of adultery against wife and that he divorced on 01.12.1989 by pronouncing triple divorce, 876 INDIAN LAW REPORTS ALLAHABAD SERIES consequently, application under Section 125 Cr.P.C. was not maintainable. Other defences were also taken. Learned Magistrate vide order dated 28.11.2002 allowed the application and awarded a sum of Rs. 500/- per month towards maintenance from the date of order. 5. Two revisions were filed against the aforesaid order, one by husband challenging the order on the ground that proceedings under Section 125 Cr.P.C. are not maintainable and the other one by wife seeking enhancement of the amount of maintenance, that too, from the date of application. 6. Learned Sessions Judge came to the conclusion that Smt. Shakeela Bano having been divorced by husband, proceedings under Section 125 Cr.P.C. are not maintainable. Consequently, revision filed by husband was allowed and the revision filed by wife was dismissed. Against the order dated 29.03.2004 passed by Additional Sessions Judge/FTC No. 1, Hamirpur, writ petition was filed which was later on converted into instant criminal revision. 7. Submission of learned counsel is that factum of divorce was not proved in accordance with the personal law. In any case, even if divorce is assumed, her right to get maintenance under Section 125 Cr.P.C. cannot be denied. 8. It is apparent from the judgment that Saleem Uddin (husband), in his crossexamination before Magistrate has stated that even if earlier divorce is not treated to be legal, he is giving divorce in the presence of lawyers. This has been found to be sufficient compliance by learned revisional court. Divorce cannot be granted in summary manner as assumed by lower revisional court. 9. Reference may be made to decision of Hon'ble Apex Court in the case of Shamim Ara vs. State of Uttar Pradesh and Anr. (JT 2002 (7) SC 520). Hon'ble Apex Court has quoted, with approval, the observations made by Guwahati High Court in the case of Must. Rukia Khatun vs. Abdul Khalique Lasker [(1981) 1 GLR 375]. Relevant observation of the Division Bench are quoted below :- "In Rukia Khatun's case, the division bench stated that the correct law of talaq as ordained by Holy Quran, is (i) that 'talaq' must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, 'talaq' may be effected. The division bench expressly recorded its dissent from the Calcutta and Bombay view which, in their opinion, did not lay down the correct law." 10. The pronouncement of triple talaq in the court during crossexamination, does not appear to be valid mode of divorce. 11. Furthermore, even the divorcee muslim woman is entitled to maintenance under Section 125 Cr.P.C. Reference may be made to the decision of Hon'ble the Apex Court 3 All. Smt. Shakeela Bano Vs Saleem Uddin 877 given on 16.04.2014 in the case of Shamim Bano vs. Asraf Khan[2014 Law Suit (SC) 317]. Referring to the case of Danial Latifi and Another vs. Union of India [2001 7 SCC 740], Hon'ble Apex Court has observed that it would be travesty of justice if the muslim woman is made remediless. Relevant paragraph of the judgment is being quoted below:- "We are disposed to think so as the said application, which has been brought on record, was not filed for grant of maintenance. That apart, the authoritative interpretation in Danial Latifi was not available. In any case, it would be travesty of justice if the appellant would be made remediless. Her application under Section 125 of the Code was continuing. The husband contested the same on merits without raising the plea of absence of consent. Even if an application under Section 3 of the Act for grant of maintenance was filed, the parameters of Section 125 of the Code would have been made applicable. Quite apart from that, the application for grant of maintenance was filed prior to the date of divorce and hearing of the application continued." 12. Further, position has been clarified in another judgment of Hon'ble Apex Court in the case of Shamima Farooqui vs. Shahid Khan in Criminal Appeal Nos. 564-565 of 2015 [Arising out of SLP (Crl.)Nos. 6380-6381 of 2014]. While referring to the case of Shabana Bano v. Imran Khan [(2010)1 SCC 666], Court observed that application under Section 125 Cr.P.C. has to be held maintainable, even in the case of divorcee woman. Relevant paragraph of the judgment is being quoted below:- "In view of the aforesaid dictum, there can be no shadow of doubt that Section 125 Cr.P.C. has been rightly held to be applicable by the learned Family Judge." 13. It is thus apparent that now there is no dispute with regard to maintainability of application under Section 125 Cr.P.C. on behalf of divorcee wife, till she remarries. 14. In view of the discussions made above, impugned judgment cannot be sustained. 15. Revision filed by wife was dismissed on the sole ground of non maintainability of application under Section 125 Cr.P.C., which ground has not been found valid. 16. Consequently, this revision is allowed. Order dated 29.03.2004, passed by Additional Sessions Judge, Hamirpur is set aside. 17. Revisional court is directed to pass afresh order in accordance with the observations made in the judgment, on both the revisions. 18. Parties will appear before lower court on 17.03.2016. 19. Since matter is quite old, revisional court is expected to decide the revision within two months. -----------