Research › Search › Judgment

Jharkhand High Court · body

2002 DIGILAW 1082 (JHR)

Md. Mahfooz Ali v. State of Jharkhand

2002-09-30

D.N.PRASAD

body2002
Order The petitioner has filed this application under Section 482 of the Code of Criminal Procedure for quashing the order dated 10.10.2001 whereby the learned Sub-divisional Judicial Magistrate, Madhupur has passed the order directing for issuance of distress warrant against the petitioner for payment of maintenance amount to the Opposite party no. 2 in Cr. Misc. No. 51 1985. 2. The short facts giving rise to this application is that the Opposite party no.2, Sabiran Khatoon filed a petition u/s 125 Cr. P.C. for maintenance on her own behalf as well as on behalf of her son, claiming maintenance of Rs. 250/ per month each on the ground that the Opposite party no.2 Sabiran Khatoon was married with the petitioner in the year 1969 according to Muslim rites and three children were born out of their wedlock i.e. two sons and one daughter. Few years after their marriage, the petitioner performed second marriage with the daughter of one Benga Sheikh of village Lalparitan and out of that wedlock there are four children. The petitioner after taking another wife began to neglect the Opposite party no.2 and ultimately driven her away from his house alongwith her youngest son in the year 1980 and since then the Opposite party no.2 with her minor son are living in the house of her father. The Opposite party no.2 is not in a position to maintain herself and her son and they are depending upon her father whereas the petitioner has got income from service amounting to Rs. 700/- per month besides Rs. 2000/- per year from Agriculture. Accordingly, the said petition was filed. 3. The court below after hearing both sides and considering the evidence on record passed the order directing the petitioner to give maintenance to Opposite party no.2 at a rate of Rs. 150/- and Rs. 75/- per month to her son. The petitioner being aggrieved by the said order preferred revision before the learned Sessions Judge, Deoghar by filing Cr. Revision no. 55/88. The learned Sessions Judge after hearing both sides dismissed the aforesaid Criminal Revision affirming the order passed by the learned Sub-divisional Judicial Magistrate, Madhupur dated 4.8.1988. After the order passed by 3rd Additional Sessions Judge, Deoghar affirming the original order dated 4.8.1988 the petitioner started payment of maintenance to the Opposite party no.2 but the petitioner claimed to have divorced the Opposite party no.2 on 26.4.1991. After the order passed by 3rd Additional Sessions Judge, Deoghar affirming the original order dated 4.8.1988 the petitioner started payment of maintenance to the Opposite party no.2 but the petitioner claimed to have divorced the Opposite party no.2 on 26.4.1991. It is further claimed that the petitioner had paid the amount of Iddat period and Dower debt. 4. A petition was filed before the court below under Section 127(3) (6) of the Code of Criminal Procedure for amending the maintenance amount, in view of the fact that there is no marital relationship between the parties but the learned court below rejected the prayer by the order impugned, hence this application. 5. The learned counsel appearing on behalf of the petitioner submitted that the petitioner has already divorced the opposite party no.2 on 26.4.1991 and as such the Opposite party no.2 is not entitled to get any amount of maintenance as well as the petitioner had paid the amount of iddat period and dower debt. It is further submitted that the learned court below committed error in rejecting the prayer of the petitioner as the case will be guided under the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the petitioner is only entitled to give the maintenance for the Iddat period only and that has been paid. 6. On the other hand, the learned counsel appearing on behalf of the Opposite party no.2 contended before me that there is no illegality in the order impugned and the court below rightly passed the order as the husband is liable to provide maintenance for divorced wife, who is unable to maintain herself so long as she had not remarried. The learned counsel also placed his reliance on the case of Harool Rashid vs. Raquiba Khatoon and anr. 7. From going through the record, it is apparent that the learned S.D.J.M. passed the order allowing the maintenance by order dated 4.8.1988 against which the petitioner preferred a revision which was dismissed as back as on 26.3.1991 but the petitioner took a plea at the very belated stage claiming that he had divorced his wife-Opposite party no.2 on 26.4.1991. Except, the said averment made in the petition, there is no any other cogent evidence coming forward to establish the fact of divorce. Moreover, it has been clearly held in Haroon Rashid's case (supra) that Section 125 Cr.P.C. is also. Except, the said averment made in the petition, there is no any other cogent evidence coming forward to establish the fact of divorce. Moreover, it has been clearly held in Haroon Rashid's case (supra) that Section 125 Cr.P.C. is also. applicable to Muslims including divorced muslim women, irrespective of fact that in Muslim Personal Law, wife ceases to be wife on Talaq and the muslim husband is liable to provide maintenance for divorced wife, who is unable to maintain herself so long as she had not remarried. 8. Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as 'the said Act') reads 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; (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children; (c) an amount equal to the sum of mehr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends. (2) Where a reasonable and fair provision and maintenance or the amount d mehr or dower due has not been made or paid or the properties referred to in clause (d) of sub section (1) have not been delivered to a divorced woman on her divorce, she or anyone duly authorized by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mehr or dower or the delivery of properties, as the case may be. (3) Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is• satisfied that- (a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or . (b) the amount equal to the sum of mehr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as 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 her former husband or, as the case may be, for the payment of such mehr or dower of the delivery of such properties referred to in clause (d) of sub section (1) to the divorced woman; Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period. (4) If any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974) and may sentence such person, for the whole or part of any amount remaining unpaid after the executing of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code. 9. It is clear by Section 3(1) (a) of tile said Act that a divorced Muslim woman shall be entitled to have from her former husband (i) a reasonable and fair provision (ii) a reasonable and fair maintenance to be made and part to her within Iddat period. 9. It is clear by Section 3(1) (a) of tile said Act that a divorced Muslim woman shall be entitled to have from her former husband (i) a reasonable and fair provision (ii) a reasonable and fair maintenance to be made and part to her within Iddat period. Section 4 of the said Act also provides for payment of maintenance to a divorced woman if she has not remarried and is not able to maintain herself after Iddat period, though the divorced woman is entitled for the maintenance at that stage from her relatives who would be entitled to inherit her property on her death according to Muslim Law. Further, it has been provided under sub section(2) of Section 4 of the said Act that where a divorced woman is unable to maintain herself and she has no relative as mentioned in subsection (1) of Section 4 of the Act is entitled to get the maintenance from the State Wakf Board established u/s 9 of the Wakf Act. Thus, it is quite evident that there is a specific provision for allowing maintenance to the divorced woman by her former husband. 10. The Supreme Court also reiterated this matter in the case of Danial Latif-and anr. vs. Union of India [2002(1) BLJR 745] and concluded: "(1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1) (a) of the Act. (2) Liability of Muslim husband to his divorced wife arising under Section 3(1) (a) of the Act to pay maintenance is not confined to iddat period. (3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parent. If any of the relatives being unable to pay maintenances, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. If any of the relatives being unable to pay maintenances, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. (4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India". 4 11. In the instant case, apparently, marriage took place as back as in the year 1969 and three children also born from their wedlock. The order of maintenance was passed by the learned Magistrate as back as in the year 1988. It is also admitted position that the petitioner was paying the maintenance but after the order passed in revision, which was also dismissed, the petitioner stopped payment and claimed that he had divorced his wife/Opposite party no.2 on 26.4.1991 but that version is without any corroboration which cannot be entertained and the court below has rightly rejected the petition. Thus for the reasons mentioned above, this Court is not inclined to interfere with the order impugned. 12. In the result, this application being devoid of merit is dismissed.