Research › Browse › Judgment

Madras High Court · body

1978 DIGILAW 642 (MAD)

Mohd. Abdul Qadar v. Smt. Nilques Begum and another

1978-12-19

MUKTADAR

body1978
Order.- The wife filed an application for divorce on 2nd February, 1977 under section 125(1) of the Code of Criminal Procedure, 1973 on the ground that her husband inspite of having sufficient means has neglected and refused to maintain her. The plea of the husband was that as far back as 1973 he had divorced her on 6th May, 1973 and had also paid the entire meher amount and had returned all the Jehez articles. Admittedly he had not paid the maintenance during the period of Iddath. The trial Court believed that the husband had divorced the wife on 6th May, 1973 and also paid the meher amount and returned jehez articles and as such dismissed the application. Aggrieved by the order of the trial Court the wife preferred a revision and the learned Metropolitan Sessions Judge, Hyderabad, allowed that revision and ordered maintenance to be paid by the husband at the rate of Rs. 100 per month from the date of the application, i.e., 2nd February, 1977. It is this order which is being challenged in this revision. 2. Mr.S.V. Ranga Rao, the learned advocate appearing on behalf of the petitioner-husband contends that the wife is no longer a lawfully wedded wife because she had already been divorced on 6th May, 1973 and the petitioner had also paid the entire meher amount and returned all the jehez articles. Therefore, the husband could not have been called upon to continue to pay maintenance to his wife-respondent. The provisions of section 127(3)(b), Criminal Procedure Code, would apply only for cancellation of an order of maintenance and cannot be taken into consideration for purposes of passing an order of maintenance. 3. I regret I cannot accede to the contentions advanced by Mr. Ranga Rao. The provisions of section 127(3)(b), Criminal Procedure Code, would apply only for cancellation of an order of maintenance and cannot be taken into consideration for purposes of passing an order of maintenance. 3. I regret I cannot accede to the contentions advanced by Mr. Ranga Rao. Section 125(1), Criminal Procedure Code, provides that if any person having sufficient means neglects or refuses to maintain his wife and wife is defined by Explanation (b) to sub-section (1) of section 125, Criminal Procedure Code, as follows: “‘Wife’ includes a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried, a Magistrate of the 1st Class, may upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife.” A reading of Explanation to section 125(1), Criminal Procedure Code, makes it clear that inspite of the fact that a woman has been divorced nevertheless she would continue to be considered as wife for purposes of section 125(1). Yet from another aspect, although it is true that section 127(3)(b) deals with a case of cancellation of an order of maintenance provided a woman had been divorced by her husband and that she has received whether before or after the date of the said order the whole of the sum which under any customary law or personal law applicable to the parties was payable on such divorce; nevertheless a close reading of this section would show that whether an order of maintenance has been passed that order could be cancelled by the Magistrate provided the wife has received the whole of the sum which under any customary law or personal law applicable to the parties was payable on such divorce. Under the Muslim law if divorce takes place the husband would be liable to pay meher amount as also maintenance during the period of Iddat. Admittedly, in this case, the petitioner has not paid the maintenance for the period of Iddat. Therefore, it cannot be said that the wife has received the whole of the sum payable under the personal law applicable to the parties on such divorce. Admittedly, in this case, the petitioner has not paid the maintenance for the period of Iddat. Therefore, it cannot be said that the wife has received the whole of the sum payable under the personal law applicable to the parties on such divorce. If the provisions of section 125(1) and Explanation thereto are read in conjunction with the provisions of section 127(3) (b), Criminal Procedure Code, it becomes clear that the wife would continue to be treated as wife, although she has been divorced by the husband, so long as she is not in receipt of the whole of the sum payable under the personal law applicable to the parties on such divorce. Since she has not received the maintenance during the period of Iddat, which the husband is bound to pay to the wife and inspite of divorce, she would still continue to be treated as wife for purposes of section 125(1), Criminal Procedure Code. Hence to my mind the order of the learned Metropolitan Sessions Judge is perfectly correct and does not warrant any interference in this revision. If the husband wants to have this order cancelled, the only course left open for him is to pay the maintenance amount during the period of Iddat and the entire amount of maintenance as ordered by the revisional Court. 4. Hence, the revision is dismissed.