SYED KAREEM v. ZARINA BEE — 1991 DIGILAW 615 (KAR)

M. M. MIRDHE, J. ( 1 ) THIS Criminal Petition is filed by the petitioner under Section 482, Cr. P. C. against the order dated 21-12-1988 passed by the Court of the Munsiff and J. M. F. C. Harihar, on LA. No. I in Criminal Misc. No. 44 pf 1988. ( 2 ) THE respondent has not come to the Court, she has sent a letter and also her objections for consideration of this Court. ( 3 ) I have heard the learned counsel for the petitioner fully and perused the records of the case. ( 4 ) THE respondent has filed a petition under Section 125, Cr. P. C. against the petitioner claiming maintenance from him. The respondent has also filed LA. No. I for grant of adinterim maintenance. The Court-below has passed an order granting ad-interim maintenance of Rs. 150/-per month to the respondent until the disposal of LA. No. I. This is only an interim order passed by the Court till the disposal of LA. No. I. The petitioner himself has admitted in his evidence that the marriage of the petitioner with the respondent was solemnised during 1974 at Harihar. He has also averred that two male children are born to the petitioner and the respondent in their wedlock and these children are in his case and custody. ( 5 ) WHEN a petition is filed under Section 125, Cr. P. C. it is well settled law now that the Court has got powers to grant interim maintenance to the party if the circumstances so warrant. If the facts and circumstances so warrant, the Court will be justified even granting ad-interim maintenance ex-parte. In this case, the petition filed by the respondent under Section 125, Cr. P. C. is still pending. Even her application for interim maintenance is still pending. The Court has granted maintenance of Rs. 150/- per month to the respondent by way of ad-interim maintenance till the disposal of LA. No. I. The respondent has not appeared in this case. But, she has sent a letter to this Court. It reads as follows :"to hon'ble Chief Justice, high Court of Karnataka, at Bangalore. My Lord, sub :- Criminal Petition No. 1586/1991 on the file of High Court of Karnataka at Bangalore. Hg : Date : 22-11-1991. No. I. The respondent has not appeared in this case. But, she has sent a letter to this Court. It reads as follows :"to hon'ble Chief Justice, high Court of Karnataka, at Bangalore. My Lord, sub :- Criminal Petition No. 1586/1991 on the file of High Court of Karnataka at Bangalore. Hg : Date : 22-11-1991. With reference to the above, I have received show-cause notice with a warning to appear in person or by a pleader on 22nd November, 1991 to show cause against the appl ication filed by my husband under Section 482, Cr. P. C. in the Cr. P. No. 1586/1986. I beg to submit that I am a very poor person living in a miserable condition at the mercy of my retired and ailing father. I have no avocation of my livelihood, moreover I am a heart patient Doctor has advised me not to travel long distances. I have no money or income to come over to Bangalore and appear before the high Court in response lo the show-cause notice and even I cannot afford to appoint a Pleader on my behalf. Therefore, I am herewith filing my objections to the applications filed by my husband on Cr. P. No. 1586/1991. Please consider the same and provide justice to me. Sd/- signature. From : zarina Bi, w/o Syed Kareem, c/o Syed Abdul Gafoor, retired P. W. D. Driver, 19-11-1991 R/o Nadaband Shawali, Makan, harihar. P. B. Road, harihar - 577601. "the letter written by the respondent discloses that she is not even in a position to come over to Bangalore and appear in this case or appoint a Pleader on her behalf. Therefore, she appears to be in strained economic conditions. The lower Court is justified in granting ad-interim maintenance of Rs. 150/- per month lo the respondent. ( 6 ) THE learned counsel for the petitioner contended that though the marriage between the parlies was subsisting at the time when the respondent filed the petition, but subsequently the petitioner has given talaq to the respondent and she is no longer wife of the petitioner and, therefore, she is not entitled for maintenance under the provisions of Section 3 (1) (a) of the Muslim Women (Protection of Rights on divorce) Act, 1986 (which will hereinafter be referred lo as "the Act" ). The respondent has also stated in her objections sent along with the letter which is quoted above that she has taken a contention that there was no divorce before the filing of the petition and on subsequent dates till 3-10-1990 in trial Court. The question whether the petitioner has given talaq to the respondent is a matter of evidence to be gone into by the lower Court at the lime of the hearing of the petition. The other contention that is raised is that after the coming into force of the Act, the respondent loses her right to claim maintenance as she is the divorced wife. ( 7 ) SECTION 7 of the Act is regarding the transational provision and it reads asfollows :"every application by a divorced woman under Section 125 or under Section 127 of the Code of Criminal Procedure, 1973 (2 of 1974), pending before a magistrate OH the commencement of this Act, shall, notwithstanding anything contained in that code and subject to the provisions of Section 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act. "section 5 of the Act reads as follows : if, on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file Such affidavit or, declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly. As per Section 5 of the Act, if, on the date of the first hearing of the application under sub-section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128, Cr. P. C. , the act will not be applicable to that case. This section gives an option to the wife and the husband to choose as by which of the provisions of law i. e. , whether the provisions of the Act or the provisions of Sections 125 to 128, Cr. P. C. , the act will not be applicable to that case. This section gives an option to the wife and the husband to choose as by which of the provisions of law i. e. , whether the provisions of the Act or the provisions of Sections 125 to 128, Cr. P. C. they would prefer to be governed. In view of the fact that this application has been pending on the date when the Act came into force, Section 7 of the Act will come into play and by virtue of Section 7 of the Act, the respondent will have an option to opt before the court by which law she would like to be governed. In the proceedings that are pending, the wife and her husband have got an option to state either jointly or separately the provisions of law by which they would like to be governed and if a wife or husband or both of them express their option either jointly or separately to be governed by Sections 125 to 128, Cr. P. C. , the Act will not be applicable and that case will have to be disposed of in accordance with the provisions of Sections 125 to 128, Cr. P. C. Therefore, merely on the basis that the Act has come into force it can not be held that the respondent loses her right to claim maintenance under Section 125, Cr. P. C. The provisions incorporated in Section 5 of the Act are important provisions which give option to the wife and her former husband to declare by affidavit or any other declaration in writing in such form as may be prescribed, to give their preference as to which provision of law they would like to be governed. ( 8 ) THE learned counsel for the petitioner submitted that Section 5 of the Act laysdown that both the wife and her former husband must give the declaration together that they would prefer to be governed by Sections 125 to 128, Cr. P. C. But, in my opinion, it is not the correct interpretation of Section 5 of the Act. P. C. But, in my opinion, it is not the correct interpretation of Section 5 of the Act. Section 5 of the act lays down that either the divorced wife or her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973. The words jointly or separately go with the word filing i. e. , the declaration can be filed either jointly or separately by the divorced wife or her former husband. From Section 5 of the Act, it is clear that the declaration can be filed either separately or jointly. It leads to an inference that either both the divorced wife and her former husband or either of them can give the declaration in writing that they would prefer to be governed by the provisions of Sections 125 to 128, Cr. P. C. ( 9 ) IT is a very important provision of law which gives an option to the parties, or either of the parties to be governed by the provisions of Sections 125 to 128, Cr. P. C. Usually, a muslim woman who conies to the Court to claim maintenance will be having no means of livelihood and an unscrupulous husband taking advantage of the helplessness of the wife may take a contention that he has divorced his wife and, therefore, the case is to be governed by the provisions of the Act. But, that will not be an end of the matter, because Section 5 of the Act gives option to the divorced wife to give a declaration that she would prefer to be governed by the provisions of sections 125 to 128, Cr. P. C. , and if she gives such a declaration under Section 5 of the Act, the provisions of the Act will not be applicable to the case and the case of such a divorced wife will have to be disposed of by the Court in accordance with the provisions of Sections 125 to 128, Cr. P. C. ( 10 ) SINCE the women who approach the Court under Section 125, Cr. P. C. ( 10 ) SINCE the women who approach the Court under Section 125, Cr. P. C. may not be aware of Section 5 of the Act which gives them an option to be governed by the provisions of Sections 125 to 128, Cr. P. C. , it is the duty of the Magistrate before whom such case has come to make the parties aware that they have got an option to be governed by the provisions of Sections 125 to 128, Cr. P. C. If the Magistrate without making the parties aware more so the Muslim divorced woman that she has got the option to be governed by the provisions of Sections 125 to 128, Cr. P. C. and disposes of the case holding that only the provisions of the Act will apply and not the provisions of Sections 125 to 128, Cr. P. C. it will be a serious infirmity which will vitiate his order. ( 11 ) THEREFORE, it is impressed upon all the Magistrates who have an occasion to deal with the petitions of Muslim divorced women under Section 325, Cr. P. C. to bring to the notice of the Muslim divorced women that they have got option to be governed by the provisions of Sections 125 to 128, Cr. P. C. and after ascertaining their option in the matter they should proceed in accordance with law that is opted by either of the parties in the case. ( 12 ) I do not find any grounds to admit this petition. ( 13 ) HENCE, I make the following order : The petition is dismissed. --- *** --- .