When it is not necessary to frame issue of Divorce in proceeding u/s 125 of crpc relating to Muslim Marriage

Learned counsel for  non­applicant  Mr. R.J. Mirza  has submitted that 
the  decision   on this issue had nothing  to do with the issue regarding 
maintenance and findings of the learned Court  thereon, in view of the 
judgment of the Hon’ble Supreme Court  reported  at AIR  2010 SC 305 
in the matter of   Shabana Bano  vs.   Imran Khan.    Learned counsel 
Mr. Khan   does not dispute any finding   with regard to the   grant of 
maintenance to the applicants.    As such, both the learned counsel are 
in agreement that the Issue no. (1)  was not necessary to be framed and 
it  was not necessary to give any finding on that issue.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT NAGPUR, NAGPUR.

CRIMINAL  APPLICATION  (APL) NO.   233/2013
Shabina   Anjum   w/o Irshad Khan
      
...              
v e r s u s
Irshad Khan  s/o Noorkhan


CORAM:   M.L.TAHALIYANI,J.
DATED :   19th March,  2013
Citation; 2013 ALL MR (cri)1854

Admitted.    Heard finally by  consent  of both the learned 
counsel.      Mr.  M.R.Khan,    learned  counsel  is  heard   on  behalf   of   the 
applicants   and learned   Advocate Mr. R.J.Mirza is heard on behalf of 

the non­applicant. 
The limited  grievance  of the applicants is that it was not 
necessary for the  trial Court (Family Court) to frame the following issue 
in the Application under Section 125 of the Criminal Procedure Code, 
Whether  the non­applicant proves that he had 

given  a legal and valid talaq.”
Learned counsel for applicants  Mr. Khan has submitted that this  issue 
could not have been decided in the proceedings u/s. 125 of the Cr.P
.C. 
Learned counsel for  non­applicant  Mr. R.J. Mirza  has submitted that 
the  decision   on this issue had nothing  to do with the issue regarding 
maintenance and findings of the learned Court  thereon, in view of the 
judgment of the Hon’ble Supreme Court  reported  at AIR  2010 SC 305 
in the matter of   Shabana Bano  vs.   Imran Khan.    Learned counsel 
Mr. Khan   does not dispute any finding   with regard to the   grant of 
maintenance to the applicants.    As such, both the learned counsel are 
in agreement that the Issue no. (1)  was not necessary to be framed and 
it  was not necessary to give any finding on that issue.

3.
Since both the learned counsel agree on that and since the 
said   issue   and   finding   on   the   said       issue   was   not   relevant   to   the 
Application in question,  I am   of the view that the finding  given by the 
learned trial Court on that issue  will have to be set aside, by  consent of 
both the learned counsel.  I therefore pass the following order:­
ORDER

The affirmative finding given by the Family Court 
in Petition No. E­ 17/2011    to issue No.1 with regard to 
legality or otherwise of talaq is  set aside.  
It is made clear that since the issue  framed by the 
learned trial Court and finding given   on the said issue 
are set aside only  because of consensus  on the part of 
could not have been   framed     in   the proceedings u/s 
125 Cr.P
.C., the present judgment shall not be  taken to 
be a judgment  on merits of the  case.  
learned counsel for both the parties that the said  issue 
Application   stands disposed off  accordingly.
JUDGE