SMT HUMAIRA RIYAZversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 CRIMINAL REVISION No. - 3305 of 2025

Smt Humaira Riyaz
                                                           .....Revisionist(s)
                                   Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Revisionist(s)    : Basharat Ali Khan, Zawwar Haider
                                Naqvi
Counsel for Opposite Party(s) : Afzal Ahmad Khan Durrani, G.A.,
                                Jamal Ahmad Khan

Court No. - 85
                  HON'BLE MADAN PAL SINGH, J.

   1. Heard Sri B.A. Khan, learned Senior Advocate assisted by Sri Zawwar
     Haider Naqvi, learned counsel for the revisionist, Sri Rahul Mishra,
     learned Senior Advocate assisted by Sri Afzal Ahmad Khan Durrani,
     learned counsel appearing for the opposite party no.2, and the learned
     A.G.A. for the State, and perused the record.

   2. The present criminal revision has been filed challenging the order
     dated 27.05.2025 passed by the learned Principal Judge, Family Court,
     Prayagraj in Maintenance Case No. 604 of 2020 (Smt. Humaira Riyaz
     and others vs. Mohammad Daud) under Section 125 Cr.P.C., whereby
     the application for maintenance filed by the revisionist/wife has been
     rejected while maintenance has been awarded to the two minor sons.

   3. Learned counsel for the revisionist submits that the marriage of the
     revisionist with her first husband, namely Abdul Waheed Ansari, was
     solemnized on 03.02.2002. It is contended that the said husband had
     already pronounced talaq on 27.02.2005. Thereafter, a declaratory suit
     was filed before the Family Court and, by decree dated 08.01.2013
     passed in Marriage Petition No. 06 of 2007, the aforesaid talaq dated
     27.02.2005 was declared valid. It is further submitted that the validity
     of the said divorce has also been noticed by this Court in proceedings
     under Section 482 Cr.P.C. vide order dated 11.05.2023, and the
     Special Leave Petition filed against the said order was dismissed by
     the Hon’ble Supreme Court on 25.08.2023.

   4. It is further contended that after observing the period of iddat, the
     revisionist solemnized her marriage with the opposite party no.2 on
     27.05.2012 with full knowledge of the earlier divorce. Out of the said
     wedlock two sons were born. It is submitted that the parties lived
     together as husband and wife for several years and the opposite party
     no.2 has himself admitted the marriage as well as the paternity of the
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  two sons. Therefore, the learned Family Court committed a manifest
  error in treating the marriage between the parties as void.

5. Learned counsel further submits that the opposite party no.2 is a
  Central Government employee earning a substantial salary; however,
  he has neglected and refused to maintain the revisionist and their
  minor sons, which compelled the revisionist to initiate proceedings
  under Section 125 Cr.P.C. It is contended that although interim
  maintenance was granted earlier and the same was upheld by this
  Court as well as by the Hon’ble Supreme Court, the learned Family
  Court, while passing the final order dated 27.05.2025, has wrongly
  denied maintenance to the revisionist on a hyper-technical ground.

6. Learned counsel for the revisionist further submits that the learned
  Family Court has rejected the claim of maintenance of the revisionist
  mainly on the ground that on the date of Nikah between the revisionist
  and opposite party no.2, the marriage of the revisionist with her first
  husband had not been legally dissolved and, therefore, the second
  marriage was void. It is argued that the said finding is contrary to the
  material available on record. It is submitted that the first husband of
  the revisionist had already pronounced talaq earlier and thereafter a
  declaratory suit was filed before the Family Court seeking a
  declaration regarding the said talaq, which was decided by a decree
  declaring the talaq to be valid. It is further submitted that the decree
  passed by the Family Court was merely declaratory in nature and only
  recognized the earlier talaq which had already taken place.

7. It is lastly submitted that the impugned order is contrary to the settled
  principles governing maintenance under Section 125 Cr.P.C., which is
  a beneficial provision intended to prevent vagrancy and destitution.
  Reliance has also been placed upon the judgment of the Hon’ble
  Supreme Court in N. Usha Rani vs. Moodudula Srinivas arising out
  of SLP (Crl.) No. 7660 of 2017 to contend that a woman cannot be
  denied maintenance merely on technical objections regarding the
  validity of the marriage, particularly when the husband knowingly
  entered into the marriage and the parties lived together as husband and
  wife. Accordingly, it is prayed that the impugned order be set aside to
  the extent it denies maintenance to the revisionist.

8. Learned counsel for the opposite party no.2 submits that the
  revisionist, Smt. Humaira Riyaz, was earlier married to Abdul Waheed
  Ansari on 03.02.2002 and their marriage continued until the decree of
  divorce was passed by the Family Court, Prayagraj on 08.01.2013 in
  Divorce Petition No. 6 of 2007 on the basis of compromise. It is
  contended that during the subsistence of the said marriage, the
  revisionist had also filed proceedings under Section 125 Cr.P.C.
  against her earlier husband and was granted maintenance of Rs. 2,000/-
  per month, for which an execution case was also filed. However,
  concealing this material fact and without obtaining a valid divorce
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                               3


   from her earlier husband, the revisionist solemnized Nikah with the
   opposite party no.2 on 27.05.2012. Since the decree of divorce from
   her earlier husband was granted only on 08.01.2013 and the mandatory
   requirement of observing the iddat period was also not fulfilled, the
   alleged marriage with the opposite party no.2 was void under
   Mohammedan Law. It is further submitted that the Family Court, after
   considering the oral as well as documentary evidence and the fact that
   the dissolution of her earlier marriage took place only through the
   decree dated 08.01.2013, rightly held that the revisionist was not the
   legally wedded wife of the opposite party no.2 and was therefore not
   entitled to maintenance.

 9. Having considered the submissions of the learned counsel for the
   parties and upon perusal of the record, this Court finds that under
   Mohammedan Law, when a husband pronounces talaq, the divorce
   takes effect from the date on which the talaq is pronounced, subject to
   its validity in accordance with law.

10. It is further settled that where a husband pronounces talaq and
   subsequently approaches the court seeking a decree regarding the
   same, the decree passed by the court is ordinarily declaratory in nature,
   which merely recognizes or confirms the status of divorce that had
   already taken place.

11. In such circumstances, the decree of the court does not create a fresh
   divorce from the date of the judgment but only declares whether the
   talaq had already been validly pronounced earlier.

12. However, where the validity of the talaq is disputed between the
   parties, the court is required to examine the evidence and determine
   whether the talaq was validly given in accordance with law.

13. In the present case, it appears that the learned Family Court has
   rejected the claim of maintenance of the revisionist mainly on the
   premise that the decree declaring the divorce was passed subsequently
   and, therefore, the second marriage was void. The approach adopted
   by the learned Family Court does not appear to be in consonance with
   the settled legal position that a decree in such cases is merely
   declaratory and relates back to the date of pronouncement of talaq.

14. In view of the aforesaid legal position, this Court is of the opinion that
   the matter requires reconsideration by the learned Family Court after
   properly examining the effect of the talaq allegedly pronounced earlier
   and the nature of the decree passed in the declaratory proceedings, as
   well as the other evidence available on record.

15. Accordingly, the impugned order dated 27.05.2025 passed by the
   learned Principal Judge, Family Court, Prayagraj in Maintenance Case
   No. 604 of 2020 is set aside to the extent it relates to revisionist/wife).
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                                          16. The matter is remanded back to the learned Principal Judge, Family
                                             Court, Prayagraj to decide the claim of maintenance of the revisionist
                                             afresh on merits, in accordance with law, after affording an
                                             opportunity of hearing to both the parties and keeping in view the
                                             observations made hereinabove.

                                          17. It is expected that the learned Family Court shall make an endeavour to
                                             decide the matter expeditiously, preferably within a period of six
                                             months from the date of production of a certified copy of this order.

                                          18. With the aforesaid observations and directions, the present criminal
                                             revision stands partly allowed.



                                                                                              (Madan Pal Singh,J.)
                                    March 10, 2026
                                    pks




Digitally signed by :-
PANKAJ KUMAR SRIVASTAVA
High Court of Judicature at Allahabad