IN THE HIGH COURT OF CHHATTISGARH
Criminal Revision No. 573 of 2007
Decided On: 09.07.2014
Hon’ble Judges/Coram:Sanjay K. Agrawal, J.
Citation; 2014 CRLJ4818 Chhatis
1. Impugning the legality, validity and correctness of the order dated 26-7-2000 passed in Criminal Revision No. 24/2000, by which the revisional Court has allowed the revision by sustaining the objection holding that the application filed by applicant Smt. Shahin Bano under Section 125 of the Code of Criminal Procedure, 1973 (henceforth ‘Cr.P.C.’) is not maintainable, the applicant has preferred the instant revision under Section 397
read with Section 401
Cr.P.C. The core facts, required for judging correctness of the impugned order, state as under:
1.1 Smt. Shahin Bano filed an application under Section 125
, Cr.P.C. stating inter alia that she was married to non-applicant Shamsuddin on 6-6-1990 in accordance with Muslim Rites at Village Parchha, Police Station Maudaha, District Hamirpur, Uttar Pradesh. After performance of the Gauna ceremony in the year 1995, she went to her matrimonial house to live with the non-applicant. But, soon thereafter, the non-applicant and his family members started harassing her demanding various articles including Hero Honda Bike, Refrigerator, Colour Television and forced her to go back to her parental house. Thereafter, two days before 19-6-1997, she was called to her matrimonial house on accord of falling ill of her father-in-law. On 19-6-1997, her father-in-law died and twenty days thereafter, she was thrown out of her matrimonial house. Since then, she is residing with her parents. She has no income at all and she is unable to maintain herself and as such, she is entitled for maintenance of Rs. 3,000/- per month under Section125
, Cr.P.C. from the date of filing the application therefore.
1.2 On being noticed, the non-applicant filed a preliminary objection to the main application under Section 125
, Cr.P.C. stating inter alia that the parties are governed by the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (henceforth ‘the Act, 1986’) and in accordance with Muslim Shariat Law, divorce has already taken place between him and the applicant on 20-9-1998 and by virtue of Section 4
of the Act, 1986, she is not entitled for maintenance from her husband and as such, she would be entitled for maintenance under Section 4(1)
of the Act, 1986 from her relatives or under Section 9 of the State Wakf Act, 1954. It was further stated that she is entitled for maintenance only under Section3(1)(a)
of the Act, 1986 within the period of Iddat and as such, the application under Section 125
, Cr.P.C. deserves to be rejected.
1.3 The trial Magistrate, by order dated 3-12-1999, overruled the preliminary objection holding that the non-applicant is free to take the objection in the final reply to be filed by him opposing the main application under Section 125
1.4 Questioning the aforesaid order passed by the trial Magistrate rejecting his preliminary objection, the non-applicant filed a criminal revision before the Court of Session. By the impugned order dated 26-7-2000, the learned Additional Sessions Judge held that the applicant, being a divorced wife, is entitled for maintenance from her former husband only within the period of Iddat and thereafter, she is entitled for maintenance under Section 4(1)
of the Act, 1986 from her relatives and if the relatives are unable to maintain her, under Section 9 of the State Wakf Act, 1954.
1.5 Challenging the order dated 26-7-2000, the present revision has been filed by the applicant.
2. Shri H.B. Agrawal, learned Senior Advocate appearing for the applicant would submit that the revisional Court has committed a serious illegality in holding the application under Section 125
, Cr.P.C. not maintainable in law in view of a decision of a Constitution Bench of the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum and others, MANU/SC/0194/1985 : (1985) 2 SCC 556 : (AIR 1985 SC 945).
3. Smt. Savita Tiwari, learned counsel appearing for the non-applicant would submit that the revisional Court is absolutely justified in sustaining the preliminary objection as the application filed by the applicant under Section 125, Cr.P.C. claiming maintenance was clearly not maintainable in law in view of Section 3(1)(a) of the Act, 1986.
4. I have heard and considered the rival contentions made by learned counsel appearing for the parties and have also perused the record with utmost circumspection.
5. The short question, that arises for consideration in this revision, is whether a Muslim divorced wife is entitled to receive an amount of maintenance from her divorced/former husband under Section 125
6. In order to have comprehension of the challenge made to the order impugned, it would be profitable to notice Sections 3(1)(a) and 4(1) of the Act, 1986, which run as under:
“3. Mahr or other properties of Muslim woman to be given to her at the time of divorce.–
(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to–
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
4. Order for payment of maintenance.–(1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where the Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order:
Provided that, where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her:
Provided further that, if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order”.
7. After having noticed the statutory provisions in order to adjudicate the issue involved, it would be necessary to notice the decision of the Constitution Bench of the Supreme Court in Mohd. Ahmed Khan case (supra). The Constitution Bench of the Supreme Court, considering the question whether a Muslim divorced wife is entitled to grant of maintenance under Section 125
, Cr.P.C., clearly held that there is no conflict between section125
, Cr.P.C. and Muslim Personal Law on the question of a Muslim husband provide maintenance to his divorced wife, who is unable to maintain herself. The Constitution Bench held as under:
“14…… The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse of Section 125 of the Code. The outcome of this discussion is that there is no conflict between the provisions of Section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself”.
8. Again, in Danial Latifi and another v. Union of India, MANU/SC/0595/2001: (2001) 7 SCC 740 : (AIR 2001 SC 3958), the right of an applicant to claim maintenance under Section 125
, Cr.P.C. stood legally crystallized, which is apparent as under:
“30. A comparison of these provisions with Section 125
, Cr.P.C. will make it clear that requirements provided in Section 125
and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of Section 125
, Cr.P.C. is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.
31. Even under the Act, the parties agreed that the provisions of Section 125
, Cr.P.C. would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125
, Cr.P.C. would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional.
32. As on the date the Act came into force, the law applicable to muslim divorced women is as declared by this Court in Mohd. Ahmed Khan v. Shah Bano Begum MANU/SC/0194/1985: (1985) 2 SCC 556 : (AIR 1985 SC 875). In this case to find out the personal law of Muslims with regard to divorced women’s rights, the starting point should be Shah Bano case and not the original texts or any other material — all the moreso when varying versions as to the authenticity of the source are shown to exist. Hence, we have refrained from referring to them in detail. That declaration was made after considering The Holy Quran, and other commentaries or other texts. When a Constitution Bench of this Court analysed Suras 241-42 of Chapter II of The Holy Quran and other relevant textual material, we do not think it is open for us to re-examine that position and delve into a research to reach another conclusion. We respectfully abide by what has been stated therein. All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this from the personal laws as declared by this Court in Shah Bano case without mutilating its underlying ratio. We have carefully analysed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Bano Case. The learned Solicitor-General contended that what has been stated in the objects and reasons in the Bill leading to the Act is a fact and that we should presume to be correct. We have analysed the facts and the law in Shah Bano case and proceeded to find out the impact of the same on the Act. If the language of the Act is as we have stated, the mere fact that the legislature took note of certain facts in enacting the law will not be of much materiality”.
9. Thereafter, in Shabana Bano v. Imran Khan, MANU/SC/1859/2009 : (2010) 1 SCC 666, the Supreme Court, relying upon the decision in Danial Latifi case (supra), reiterating its earlier view, has clearly held that the application filed by a Muslim divorced wife under Section 125
, Cr.P.C. would be maintainable and the amount of maintenance to be awarded cannot be restricted for the Iddat period only so long as the divorced wife does not remarry. The Supreme Court held as under:
“21. The appellant’s petition under Section 125
, Cr.P.C. would be maintainable before the Family Court as long as the appellant does not remarry. The amount of maintenance to be awarded under Section 125
, Cr.P.C. cannot be restricted for the iddat period only.
23. Cumulative reading of the relevant portions of the judgments of this Court in Danial Latifi v. Union of India,MANU/SC/0595/2001 : (2001) 7 SCC 740 : (AIR 2001 SC 3958) and Iqbal Bano v. State of U.P., MANU/SC/2545/2007 : (2007) 6 SCC 785 : (AIR 2007 SC 2215) would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women.”
10. Very recently, in Shamim Bano v. Asraf Khan, MANU/SC/0332/2014 : 2014 SAR (Criminal) 659 : (2014 ATR SCW 3369), the Supreme Court has reiterated its earlier view taken in Mohd. Ahmed Khan case (supra) and Danial Latifi case (supra) and held that the application filed by a Muslim divorced woman under Section 125
, Cr.P.C. is clearly maintainable. The Supreme Court held as under:
“13. The aforesaid principle clearly lays down that even if an application has been filed under the provisions of the Act, the Magistrate under the Act has the power to grant maintenance in favour of a divorced Muslim woman and the parameters and the considerations are the same as stipulated in Section 125 of the Code. We may note that while taking note of the factual score to the effect that the plea of divorce was not accepted by the Magistrate which was upheld by the High Court, the Constitution Bench opined that as the Magistrate could exercise power under section 125 of the Code for grant of maintenance in favour of a divorced Muslim woman under the Act, the order did not warrant any interference. Thus, the emphasis was laid on the retention of the power by the Magistrate under Section 125 of the Code and the effect of ultimate consequence”.
11. Thus, in view of the aforesaid analysis and following the principles laid down by their Lordships of the Supreme Court in the aforesaid cases, it is held that even if a Muslim wife has been divorced, she would be entitled to claim maintenance from her husband under Section 125
, Cr.P.C. after the expiry of the period of Iddat also, as long as she does not remarry. The amount of maintenance to be awarded under Section 125
, Cr.P.C. cannot be restricted for the Iddat period only. As a fallout and consequence of the aforesaid discussion, the revision is allowed. The impugned order dated 26-7-2000 is set aside. M.J.C. No. 97/99 (Smt. Shahin Bano v. Shamsuddin) is restored to its original number in the Court of Judicial Magistrate First Class, Drug for fresh hearing and disposal in accordance with law. Since the application under Section 125
, Cr.P.C. was filed before the Court of Judicial Magistrate First Class, Durg on 26-5-1999, the said Court or the competent jurisdictional Family Court would consider and decide the said application under Section 125
, Cr.P.C. afresh as early as possible preferably within a period of three months from the date of receipt of a copy of this order. The record be sent back along with a copy of this order forthwith.
– See more at: http://www.lawweb.in/2014/12/whether-divorced-muslim-woman-is.html#sthash.8f0HlJ7T.dpuf