UMAR HAYATH KHAN v. MAHABOOBUNNISSA — 1975 DIGILAW 130 (KAR)

( 1 ) THE petitioner and the respondent married on 28-10-1972 in Davangere. The petitioner is working as a Supervisor in' the Aluminium Factory in Belgaum. His carry home salary is Rs. 755 p. m. Due to various reasons, the petitioner divorced the respondent on 10-7-1973 by pronouncing Thalak. On 20-4-1974 the respondent filed an application before the Judicial Magistrate Fkst Class, davangere, under S. 125 Cr. P. C. 1973 (to be hereinafter referred to as the new code), praying for maintenance at the rate of Rs. 400/- per month. The Magistrate awarded Rs. 250/- p. m. as maintenance to her from the date of the application. The petitioner has challenged that order in this revision petition. ( 2 ) THE above narrated facts are undisputed. Sri B. G. Sridharan, the learned advocate appearing on behalf of the petitioner, urged only two grounds. The first one is that the Magistrate was not right in not specifying the period during which the maintenance was to be paid by the petitioner, inasmuch as the period could not have been beyond the period of iddat from 10-7-1973. He in this connection further urged that the period of iddat would any-how expire before 1-4-1974 and as such. the application filed by the respondent on 20-4-1974, would be only in regard to past maintenance and such applications are not maintainable under S. 125 of the new Code. The second ground urged by him is that the Magistrate was not right in awarding Rs. 250/- p. m. as maintenancd and if at all the respondent is entitled to maintenance, the amount could not be more than Rs. 100,/- p. m. ( 3 ) IN support of the first ground, Sri Sridharan argued that under Mohammaden, law a wife is entitled to be maintained by her husband even after divorce only upto the expiry of the period of iddat and thereafer she has no right to claim maintenance from her husband. The Magistrate having not fixed the period of maintenance, has granted to the respondent maintenance beyond what she was entitled to under the personal law. He contended that in that view of the matter, the order passed by the Magistrate cannot be sustained. The Magistrate having not fixed the period of maintenance, has granted to the respondent maintenance beyond what she was entitled to under the personal law. He contended that in that view of the matter, the order passed by the Magistrate cannot be sustained. He nextly argued in this very connection that the period of iddat has expired long prior to 20-4-1974 the date of application, and as such the claim of the respondent before the magistrate was for past maintenance and such a claim cannot be agitated under s. 125 of the new Code. He placed reliance on the decisions in Shekhammian v. Jehangirmian AIR 1930 Bom. 178. , Wahab AH v. Qamro Bi air 1951 Hyd. 115. , Mohd Shamshuddin v. Noor jahan Begum AIR 1955 Hyd. 144. , Chandbi v. Bandesha AIR 1961 Bom. 121 . and mohammed Ibrahim v. Ahemed bee (1966) 2 Mys. L. J. 666. . In all these decisions, it has been held that a wife who has been divorced, can claim maintenance only for. the period of iddat and not for a period beyond it. ( 4 ) SRI S. R. Ramanathan, the learned Advocate appearing on behalf of the respondent, urged that the word 'wife' was not defined in S. 488 Cr. P. C. 1898 (to be hereinafter referred to as the old Code) and as such the above cited explains who is a wife' for purposes of the section. It is seen from the Explanation to S. 125 of the new Code that for purposes of this Chapter, viz. , Chapter ix of the new Code, 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. ID view of this explanation Sri. Ramanathan argued that the concept found in the above cited decisions that a divorced wife is entitled to maintenance for the period of iddat and not to any period thereafter, under S. 488 ot the old Code, is no longer available as according to S. 125 of the new Code a divorced woman can claim maintenance from her husband till she is re-married. ( 5 ) SRI. ( 5 ) SRI. Sridharan argued that when the respondent had no right under her personal law, to be maintained by her divorced husband beyond the period of iddat, she cannot be permitted to claim the same under S. 125 of the new Code he contended that the ambit of S. 125 of the new Code cannot in law extend to cover rights which are not available to parties under their personal law. According to him, if there is conflict between the personal law of the parties to an application under S. 125 of the new Code, and the provisions of S. 125 of the new Code, the rights according to personal law ought to prevail as S. 125 of the new Code provides only for a speedy remedy to a neglected wife so as to prevent her from being starved for want of maintenance. The actual right of maintenance of such a wife, according to him, could be properly settled in a regular suit in an appropriate Court as a Magistrate's Court will never go into this aspect while dealing with matters under S. 125 of the new Code. Firstly it is to be seen whether the contention of Sri Sridharan that there is conflict between the personal law of the parties, viz. , Muhammaden Law and s. 125 of the new Code is correct. As is clear from the Expln. to S. 125 of the new code, a divorced woman can ask for maintenance under this provision till she does not get married again. According to the principles of Muhammaden Law, a divorced wife has a right to claim maintenance from her husband only up to the expiry of the period of iddat and not beyond that period. The plain meaning of the word 'wife' as found in the Explanation to S. 125 of the new Code shows that a divorced Muhammaden woman can bring action under S. 125 of the new Code claiming maintenance from her ex-husband so long as she does not re marry, even if the period falls beyond the period of iddat. That shows that maintenance to some additional period beyond the period of iddat becomes available to a divorced Muhammaden woman in an action under S. 125 of the new Code. This additional benefit does not at all conflict with the right she has under the Muhammaden Law. That shows that maintenance to some additional period beyond the period of iddat becomes available to a divorced Muhammaden woman in an action under S. 125 of the new Code. This additional benefit does not at all conflict with the right she has under the Muhammaden Law. By proceeding under S. 125 of the new Code, she gets something more than what she is entitled to get under her personal law. A Statute can confer rights and benefits on persons even though those rights and benefits happen to be more than what those persons are entitled to, under their personal law. ( 6 ) IN H. Syed Ahmad v. Naghath Praveen Taj Begaum AIR 1958 Mys. 128. 1958 Mys. L. J. 184. , K. S. Hegde J. (as he then was) has held as follows :"the plea of personal law makes no appeal to me. The Criminal Procedure code is a law of the land and not of any community. If there is a conflict between the law enacted by the legislature and the personal' law; then the former prevails. The legislative will is supreme in this land unless controlled by the Constitution. There is no constitutional guarantee to respect the personal law of any community. There is no doubt that the amendment in question is the result of the working of social forces. It, is but natural in a Country like ours, the social forces make themselves felt more effectively amongst certain sections of the people but the common will is perceptible. These changes are not accidental but are intended to usher in a new way of life. They represent a new ideal and as trend. It is true that the personal law of the Muslims as such has not been changed. But if they come within the mischief of S. 488 Cr. P. C. they shall be governed by its provisions notwithstanding their personal law. "in that case, the petitioner was the husband and the respondent was the wife. The petitioner had, during the subsistence of his marriage with the respondent, taken" a second wife as the petitioner and respondent could not get on together. The respondent was alleged to have left him and continued to reside in her parental place. The respondent filed an application under S. 488 of the old Code praying for maintenance. Maintenance was granted to her. The respondent was alleged to have left him and continued to reside in her parental place. The respondent filed an application under S. 488 of the old Code praying for maintenance. Maintenance was granted to her. This Court held that the fact that the petitioner had taken a second wife, entitled the respondent to refuse, to live with him and claim to be separately maintained, under S. 488 of the old Code and that the personal law of the parties, viz. , Muhammaden Law, entitling the petitioner to take four wives and not entitling the respondent to claim separate maintenance on the ground that he had taken another wife or three wives, had nothing to do with the provisions of Section 488 of the old Code. ( 7 ) IN Km Nafees Ara v. Asif Saadat Ali Khan AIR 1963 All. 143 maintenance was sought for an illegitimate child under S. 488 of the old Code. The parties were muhammadens. It was contended that an illegitimate child had no right to be maintained by his father as per the provisions of the Muhammaden Law and, hence, no maintenance could be claimed for such illegitimate child even under the provisions of S. 488 of the old Code. It was held that:"the fact that the Muhammaden law makes no specific provision for granting or prohibiting the grant of maintenance to an illegitimate child against the father, does not lead to the Inference that the Criminal Court or Civil Court has no jurisdiction to grant such maintenance. The provisions of the Code of Criminal Procedure are part of the general law of the land which is in the absence of any contradictory provision in the muhammaden law, as binding on Muhammadens as other citizens of this country. Therefore, apart from Muhammaden Law, the illegitimate child has a right to grant of maintenance from the father. " ( 8 ) ON the question whether personal law of the parties will affect the proceedings for grant of maintenance under the provisions of the Code of Criminal procedure, it is held in Ram Singh v. The State AIR 1963 All. 355 . that : "the right of maintenance under S. 488 Cr. P. C. is a special right given under the Code. 355 . that : "the right of maintenance under S. 488 Cr. P. C. is a special right given under the Code. The mere fact that similar analogous remedy is available under the Hindu Adoptions and Maintenance Adt in a Civil court, does not take away the jurisdiction of the Magistrate under S. 488 cr. P. C. to order maintenance to a Hindu wife. The provisions of S. 488 Cr. P. C. are by no means any text, rule or interpretation of Hindu Law or any custom or usage as part of that law nor are they in any manner repugnant to, or inconsistent with the provisions of the Hindu Adoptions and Maintenance Act. Hence S. 4 of that Act cannot over-ride S. 488 Cr. P. C. . . . . . . . . "the latter provision is general and is applicable to a wife, irrespective of her religion, but the former is applicable to the case of hindus only. " ( 9 ) IN Nalini Ranjan Chakravarthy v. Kiran Rani Chakravarthy, it is held: s. 4 (b) of the Hindu Adoptions and Maintenance Act (1956) does not repeal or affect in any manner the provisions contained in S. 488 Cr. P. C. and, hence, a Hindu wife is still entitled to enforce her right to claim maintenance under S. 488 Cr. P. C in the Criminal Court. S. 488 Cr. P. C. provides for a speedy remedy and a summary procedure before a Magistrate against starvation of a deserted wife or child and that is independent of the civil liability of a husband under his personal law to maintain his wife. S. 4 of the Hindu Adoptions and Maintenance Act, 1956, reads as. follows :"save as otherwise expressly provided in this Act- (a ). . . . . . . . (b) any other law in force immediately before the commencement of this act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. "it was argued in the above cited case that in view of this provision, S. 488 of the old Code could not have any application to a Hindu wife. That contention was repelled. In Mahabir Agarwala v. Gita Roy (1962) 2 Cr. LJ. 528. "it was argued in the above cited case that in view of this provision, S. 488 of the old Code could not have any application to a Hindu wife. That contention was repelled. In Mahabir Agarwala v. Gita Roy (1962) 2 Cr. LJ. 528. it has been held that an application under S. 488 of the old Code by a Hindu wife is maintainable notwithstanding the provisions of S. 4 (b) of the Hindu Adoptions and Maintenance Act, 1956, inasmuch as those provisions do not over-ride the provisions of S. 488 of the old Code. The very same question has been gone into by the Supreme Court ia nanak Chand v. Chandra Kishore Aggarwal AIR 1970 SC. 446 . . It is held therein as follows: s. 4 (b) of the Hindu Adoptions and Maintenance Act (1956), does not repeal or affect in any manner the provisions of S. 488 Cr. P. C. There is no inconsistency between the Maintenance Act and S. 488 Cr. P. C. Both can stand together. The scope of the two laws is different. The Maintenance act is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. S. 488 Cr. P. C. provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the Personal law of the Parties. " (Italics is mine ). Section 125 of the new Code has replaced S. 488 of the old Code. Section 488 of the old Code did not contain any explanation explaining the meaning of the word 'wife' in the said provision while such an explanation is available in S. 125 of the new Code. From what has been narrated in the preceding paragraphs, it is clear that the position in law vis-a-vis the provisions of S. 488 of the old Code, is well settled. It is held that under S. 488 of the old Code, speedy remedy is available to all persons belonging to all religions and it has no relationship with the personal law of the parties. That means that the remedy available 'to all persons of all religions under S. 125 of the new code also has no relationship with the personal law of the parties thereunder. That means that the remedy available 'to all persons of all religions under S. 125 of the new code also has no relationship with the personal law of the parties thereunder. In that view of the matter, the contention of Sri Sridharan that the Magistrate' ought to have restricted the period to which the respondent was entitled to maintenance, to the period of iddat only, cannot, be accepted. ( 10 ) ON the second ground, Sri Sridharan pointed out that the petitioner has taken a second wife that both of them are residing in Belgaum that the respondent is residing in her parental house in Davangere and that the petitioner has more liabilities to discharge, therefore requires major portion of his salary to meet those liabilities. He urged that the only ground that the Magistrate has taken into consideration while fixing the quantum of maintenance is that the present days are hard and even an ordinary saree costs Rs. 40/ -. Sri Ramanathan argued that the respondent is not being maintained by her father, and looking to the status of the parties, maintenance amount of Rs. 250/- p. m. awarded by the Magistrate, cannot at all be said to be high and as such there is no good ground to interfere with that part of the order. It is undisputed that the carry home salary of the petitioner is Rs. 755/- p. m. and that he has married again and he and his wife are residing in Belgaum. It is also undisputed that the, respondent is residing not in any rented premises, but in her parental house. Moreover, it should be taken into consideration that according to the provisions of S. 125 of the new Code, the respondent will be entitled to get the maintenance amount till such period as she chooses not to re-marry. That period is likely to be long. Apart from all these considerations, what has been observed by K. S. Hegde, J. (as he then was) in the decision reported in A. I. R. 1958 Mysore, 128, is to be borne in mind. The observation is as follows :"again in awarding maintenance under S. 488 Cr. P. C. the Court should see that the rate is not such as would tempt the wife to permanently live separately from her husband. The observation is as follows :"again in awarding maintenance under S. 488 Cr. P. C. the Court should see that the rate is not such as would tempt the wife to permanently live separately from her husband. " ( 11 ) WHEN this observation is applied to the facts and circumstances of this case, it would mean that the amount of maintenance to be fixed by the Court should not be such as would tempt the respondent to remain unmarried at least for long. Taking all these factors into consideration and particularly the fact that the petitioner, as contended by Sri Sridharan, has more liabilities to meet, I am of the view that a sum of Rs. 150/- per month would be the adequate amount of maintenance that the respondent is entitled to gat in these proceedings. I order accordingly. It is with this modification in the amount of maintenance fixed by the magistrate, that I dismiss this petition. --- *** --- .