Mohd. Khalid v. Nasima Khatoon — 1995 DIGILAW 68 (PAT)

Judgment A. N. Chaturvedi, J. 1. This petition in revision is directed against the judgment dated 17th June, 1987 passed by the Judicial Magistrate, Ist class, Barh in Case No. M.41 of 1984, Trial No.899/87 whereby the learned Magistrate has directed the petitioner to pay monthly maintenance allowance of Rs.300/- to the respondent and her minor daughter. 2. It appears that the respondent was married to the petitioner according to the Muslim Personal law and both the parties began to live as husband and wife. After some time, a daughter, namely, Sajida khatoon was born. On 24.6.84, the petitioner is alleged to have divorced the respondent at his residential house and thereafter the respondent left the house of the petitioner with her baby (daughter) and began to live with her mother. Thereafter on 12.11.84, the respondent filed a petition under Sec.125 of the Code of Criminal Procedure claiming the maintenance of Rs.500/- per month for herself and Rs.200/- as maintenance for her minor daughter, inter alia, on the ground that she had not re-married and she was unable to maintain herself as well as her daughter. 3. The petitioner, who was the opposite party before the Magistrate took the plea that there was cordial relationship between the parties and the trouble arose when the respondent nasima Khatoon refused to live with the petitioner and demanded a sum of Rs.500/- per month for her maintenance as well as for the maintenance of the daughter. The petitioner is said to have assured the wife (respondent) that he would maintain her provided she lived with him. The petitioner is also said to have taken the plea that he had no independent source of income and the property was joint with his sister and mother. He also denied that he had two shops at Calcutta from which he had income of Rs.2000/-per month besides income from landed property. 4. Evidence was led before the learned Magistrate and after considering the same, the learned magistrate came to the conclusion that the petitioner-respondent had in fact divorced the respondent wife and was not maintaining her and minor daughter. Accordingly, the learned magistrate passed the impugned judgment to the aforesaid effect directing the petitioner to pay Rs.300/- per month as maintenance allowance to the respondent (wife) and her daughter, w. e. f. the date of application for allowances. Accordingly, the learned magistrate passed the impugned judgment to the aforesaid effect directing the petitioner to pay Rs.300/- per month as maintenance allowance to the respondent (wife) and her daughter, w. e. f. the date of application for allowances. The learned magistrate has directed the petitioner husband to make payment of arrears of maintenance within a period of two months from the date of the impugned judgment, failing which the respondent wife was held to be entitled to get the same realised through process the Court. 5. Petitioner has filed a supplementary affidavit on 27.9.93 stating therein that the respondent wife got married to one Alam, son of sahud Alam of Abijan on 3rd january, 1989. The respondent has filed counter-affidavit in which she has described herself as the divorced wife of the petitioner Md. Khalid and at present wife of Sri Alam of mohalla Sah ki imli, Patna City. So this much stands admitted that the respondent has been remarried. In para 5 of the counter-affidavit, it has been stated that the petitioner husband has taken second wife, namely, sah Jahan and is not caring for the daughter who is with her maternal grand mother. 6. A petition has been filed on behalf of Sajda Khatoon (daughter of the petitioner and respondent) for enhancing the monthly maintenance allowance for her to Rs, 500/- per month w. e. f.12.11.84 the date of application under Sec.125 of the code of Criminal Procedure. 7. It is the case of the respondent that the petitioner had divorced her and the case of the respondent to this effect has been accepted by the learned Magistrate. It was contended by the learned counsel for the petitioner that the Muslim womens (Protection of Rights on divorce) Act, 1986, had already come into force while the application of the respondent under Sec.125 of the Code of Criminal Procedure was pending for disposal and that being so, the application for maintenance had to be disposed of in accordance with the provisions of the said Act of 1986. In this connection, the learned counsel for the petitioner referred to Sec.7 of the said Act and rightly pointed out that Section 7 is an overriding provision. In this connection, the learned counsel for the petitioner referred to Sec.7 of the said Act and rightly pointed out that Section 7 is an overriding provision. In support of the above contention, reliance was placed on the decision of Andhra Pradesh High Court in the case of Usman Khan Bahamani v. Fathimunnisa Begam and others reported in A. I. R.1990 A. P.225 and a Bench decision of this Court in the case of Md, Yunus V/s. Bibi phenkani @ Tasru Nisa and others reported in 1987 P. L. J. R.65. It would appear from the above decisions that to such a pending application, the provision of Section 125 of the Code of Criminal Procedure would not apply and that application, so far as the same concerns the divorced wife, has to be disposed of in accordance with the provisions of the said Act of 1986 subject to the provisions of the Sec.5 of the said Act. 8. I would like to point out that section 4 of the said Act of 1986 does not at all deal with the children claiming maintenance. Sec.7 of the said Act does not apply to the application moved on behalf of the children who are minors and are unable to maintain themselves. In the impugned judgment, the learned magistrate has referred to a decision of the Supreme Court reported in a. I. R.1987 S. C.1103 (Begam Subanu @ Saira Bano and another V/s. A. M. Abdul Gafoor) corresponding to 1987 B. L. J. R.471. It may be pointed out that the case before the Supreme court was not of a divorced woman rather was of a woman who was claiming maintenance on the ground of neglect and failure to provide maintenance for herself and the children and so the occasion to examine the applicability of the provisions of the aforesaid Act of 1986 did not arise in that case. That being so, the said decision is not attracted to the facts of the instant case before this Court. 9. Section 3 of the said Act of 1986 starts with a non-obstante clause as it provides that notwithstanding anything contained in any other law for the the time being in force, a divorced woman shall be entitled to the rights which are enumerated therein. 9. Section 3 of the said Act of 1986 starts with a non-obstante clause as it provides that notwithstanding anything contained in any other law for the the time being in force, a divorced woman shall be entitled to the rights which are enumerated therein. Under Sec.4 of the said act, the liability to pay maintenance to a divorced woman, if she is unable to maintain herself after the period of Iddat, is devolued upon the relatives and if the relatives are not available, on the Waqf Board. The very concept of liability of the husband is limited for and during the period of Iddat. the liability, if any, arising for payment of maintenance after the Iddat period to the divorced woman, if she is unable to maintain herself is cast upon the relatives or the Waqf Board under Sec.4 of the said Act. Under Sec.5 of the said Act, it is provided that the husband and the wife would be governed by Sections 125 to 128 of the Code of Criminal Procedure if they exercise their option in the manner stated therein. If the option is not exercised, then they will not be governed by the provisions of sections 125 to 128 of the Code. It would be top much to say that the claim of maintenance by the divorced muslim woman would still be governed by the provisions of Section 125 of the Code when such an application is expressly dependant upon the provisions of Sec.5 of the said Act and on the exercise of the option by the parties concerned. Furthermore, under Sec.7 of the said Act the intention of the legislature is clear when it provides that every application by a divorced woman under Sec.125 or under section 127 of the Code, pending before the Magistrate on the commencement of the Act of 1986, shall notwithstanding anything contained in that Code and subject to the provision of Sec.5 of the Act, be disposed of in accordance with the provisions of the Act of 1986. Therefore the provisions of Sections 125 to 128 of the Code of Criminal Procedure will have no application to any such claim of maintenance made by the divorced wife except in the case of option exercised by the parties under Sec.5 of the said Act of 1986. Therefore the provisions of Sections 125 to 128 of the Code of Criminal Procedure will have no application to any such claim of maintenance made by the divorced wife except in the case of option exercised by the parties under Sec.5 of the said Act of 1986. A perusal of the impugned judgment of the learned Magistrate would show that he had allowed maintenance allowance to the respondent wife and her daughter under section 125 of the Code of Criminal procedure even though it had been pointed out to him that Sec.125 of the Code of Criminal Procedure will not be applicable to the case of divorced wife. 10. As mentioned earlier, respondent wife, in her application before the Magistrate, had prayed for maintenance to her at the rate of rs.500/- per month and for her minor daughter at the rate of Rs.200/- per month. I have already pointed out above that the aforesaid act of 1986 is not applicable to the application moved on behalf of the children who are minors and are unable to maintain themselves. Instead of granting maintenance allowance separately for the wife and the minor daughter, the learned Magistrate has granted Rs.300/- per month as maintenance allowance both for the wife and the minor daughter. It was already been pointed out above that in accordance with the provisions of the aforesaid Act of 1986, the liability of the husband for payment of maintenance to the divorced wife is limited for and during the period of Iddat, it has also been pointed out above that the respondent wife has already re-married herself and under the circumstances, the question of maintenance to the respondent after the period of Iddat and after re-marriage would hardly arise. 11. The liability of the husband petition for payment of maintenance to the divorced wife (respondent)being limited for and during the period of Iddat, the consolidated amount of Rs.300/- per month will be payable up to the period of Iddat only. After the period of Iddat, the petitioner will not be liable to pay maintenance allowance to the respondent. Since the amount of Rs.300/-per month has been allowed by the magistrate for the respondent wife and her daughter jointly, the amount payable to the daughter after the period of Iddat of the respondent has to be fixed. After the period of Iddat, the petitioner will not be liable to pay maintenance allowance to the respondent. Since the amount of Rs.300/-per month has been allowed by the magistrate for the respondent wife and her daughter jointly, the amount payable to the daughter after the period of Iddat of the respondent has to be fixed. Evidence will be required regarding the requirement of the minor daughter after the period of Iddat and re-marriage of her month. Under the circumstances, there is no option but to remit the matter back to the learned magistrate for fixing the amount of maintenance for minor daughter. 12. In result, this revision petition is allowed. The impugned judgment of the learned Magistrate is hereby modified to the extent indicated above and the matter is remitted back to the learned magistrate for fixing the amount of maintenance for the minor daughter in accordance with the relevant provisions of the Code of Criminal Procedure. Revision allowed.