SHARIQUE AHMAD MOHAMMAD WARIS MOMINversusSTATE OF MAHARASHTRA AND ORS

          Digitally
          signed by
          ANANT
ANANT     KRISHNA                                                              9.WP.5904.2024 @.doc
KRISHNA   NAIK
NAIK      Date:
          2026.06.12
          19:15:40          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          +0530
                                  CRIMINAL APPELLATE JURISDICTION

                                     WRIT PETITION NO. 5904 OF 2024

              Sharique Ahmad Mohammad Waris Momin                        ...Petitioner
                    Vs.
              State of Maharashtra & Ors.                                ...Respondents

                                                    ****
              Mr. Shrikant Rathi for the Petitioner.
              Mr. F. N. Momin for the Respondent No. 2.
              Ms Manisha R. Tidke, APP for the Respondent-State

                                                  ****
                                               CORAM        : M. M. SATHAYE, J.

                                               DATED        : 12th JUNE 2026
              P.C.:

              1.       Heard learned counsel parties and perused the record.

              2.       By this petition under Article 226 of the Constitution of India read
              with Section 482 of the Criminal Procedure Code, 1973 (‘Cr.P.C’ for short),
              the Petitioner is seeking a writ to quash Criminal Misc. Application No. 33 of
              2020 pending before 11th Court, Judicial Magistrate, First Class, Bhiwandi.
              The said Criminal proceedings are filed by the Respondent Nos. 2 and 3
              under section 125 of the Cr.P.C. contending inter alia that the Respondent
              No. 2 is legally wedded wife of the Petitioner and the Respondent Nos. 3 is a
              daughter born from the said wedlock.

              3.       Respondent No. 2 has contended, in her application that the Petitioner
              is a husband of the Respondent No. 2, who alongwith his family members
              treated the Respondent No. 2 with cruelty, subjecting her to physical and
              mental torture and verbal abuse. It is contended that the Petitioner and her

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family members demanded money and articles such as washing machine
from the Respondent No. 2. It is contended that the Respondent No. 2 has
been assaulted. It is the contention of the Respondent No. 2 that the
Petitioner refused to take the responsibility of the unborn child and refused
to keep the Respondent No. 2 with him, with a threat of dire consequences
when abortion of unborn child was insisted. It is contended that the
Petitioner is having extra marital affair. It is also contended that the
Respondent No. 2 was refused medical treatment. It is further contended
that the jewelry and gold ornaments of the Respondent No. 2 are in
possession of the Petitioner. By specifically contending that on 25.08.2020,
the Petitioner and her family members prepared one paper and took forcible
signature of the Respondent No. 2 by pressing her neck and the Respondent
No. 2 was made to sign the paper. It is contended that then the Petitioner
took their daughter in the custody and left Respondent No. 2 at her house by
giving triple talaq. On such averments, application is filed seeking
maintenance of Rs.15,000/- for the Respondent No. 2 – wife and Rs.5,000/-
for the Respondent No. 3 - daughter.

4.    The Petitioner filed an application below Exh. 11 seeking dismissal of
the main Application u/s. 125 of the Cr.P.C. That Application has been
rejected by the learned Magistrate (11 th Jt. C.J.J.D and J.M.F.C., Bhiwadi) by
order dated 02.08.2024. After rejection of this Application, present Writ
Petition is filed seeking almost same grounds, ultimately praying that the
maintenance proceedings to be quashed. In essence the order dated
02.08.2024 is challenged.

5.    Learned Counsel for the Petitioner submitted that there has been a
divorce between the parties, which was initiated by the Respondent No. 2-


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wife herself by seeking Khula before the concerned Kazi. The document
dated 25.08.2020 is relied upon contending that both the parties on their
own will are separated. Another notarized document of divorce by mutual
consent or Khula-nama dated 07.09.2020 is relied upon. It is contended by
the learned Counsel for the Petitioner – husband that parties have divorced
by mutual consent and settled dispute about custody of child and iddat
amount is also paid. He submitted that in view of this document, it is clear
that the Respondent No. 2-wife, is living separately by mutual consent,
thereby dis-entitling her from claiming maintenance. Section 125(4) of the
Cr.P.C. is specifically relied upon. He also relied upon the judgment of Vitthal
Hiraji Jadhav vs. Harnabai Vitthal Jadhav and Another 2003 (4) Mh.L.J. 23
in support of his case where, under similar circumstances a document
indicating mutual consent to live separately was relied upon and this Court
had quashed the proceedings u/s. 125 of the Cr.P.C.

6.    On the other hand, learned Counsel for the Respondent Nos. 2 and 3
(wife and daughter) contended that the notarized document of divorce by
mutual consent nowhere indicates that parties are living separately or that
the wife has consented for separate living. He further contended that the
alleged Khula dated 25.08.2020 is a document seriously challenged by the
Respondent No. 2 – wife, which is clear from para 16 of her Application
before the Magistrate. He submitted that the said document of Khula dated
25.08.2020 is a product of signature taken by force under coercion and
therefore cannot be believed. He submitted that assuming that there is a
divorce between the parties, muslim woman is held entitled to the
maintenance u/s. 125 of the Cr.P.C and relied upon the judgment of Mohd.
Abdul Samad vs. the State of Telangana & Anr. reported in 2024 INSC 506.
He submitted that since Khula is seriously challenged by the Respondent No.

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2-wife, whether there is a divorce in accordance with law is a matter of
decision by the Court of competent jurisdiction and cannot be decided in the
writ jurisdiction.

7.    I have carefully considered the submissions and perused the records.

8.    At the outset, it is necessary to note that the whole argument of the
learned Counsel for the Petitioner-husband is based on Section 125(4) which
dis-entitles the wife from receiving maintenance under the said section, if
the parties are living separately by mutual consent.

9.    In this respect, two things need to be noted. Firstly, the notarized
document of Khula-nama does not have any recital that the parties are living
separately by consent. Khula certificate issued by Kazi dated 25.08.2020 is
under serious challenge by the Respondent No. 2-wife, which is pleaded
under paragraph 16 of the Application. Second aspect that needs mention, is
that, the averments in the Application regarding physical and mental abuse
and the manner in which the Respondent No. 2-wife is allegedly treated,
clearly suggests that even if Respondent No. 2 is residing separately, the
same cannot be said to be of her own free will or consent as such.

10.   In that view of the matter, it cannot be said that the Respondent No.
2-wife is living separately by mutual consent. Therefore bar under Section
125(4) of Cr.P.C. would not apply to the facts of the case. In these peculiar
facts and circumstances, the judgment relied upon by the learned Counsel
for the Petitioner in Vitthal Hiraji Jadhav (Supra) would not advance the
Petitioner’s case, in principle, because facts of this case are found to be
completely distinguishable.

11.   In the aforesaid facts and circumstances, the bar to entitlement of the

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Respondent No. 2 u/s. 125 of the Cr.P.C needs no further consideration as
she is not found to be residing separately by consent.

12.   The proceedings are pending before the Magistrate and not yet
decided on its own merits. Therefore this Court is refraining from
commenting any further. Suffice to observe that in the facts and
circumstances narrated and for reasons indicated above, this is not a fit case
for quashing section 125 Cr.P.C. proceedings as prayed by the Petitioner.

13.   The Petition is accordingly dismissed. No order as to the costs.

14.   All concerned to act on duly authenticated or digitally signed copy of
this order.




                                            (M. M. SATHAYE, J.)




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