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2002 DIGILAW 226 (KAR)

UBEDULLA v. T. NANMUNNISA

2002-03-20

M.N.NARAYAN

body2002
M. N. NARAYAN, J. ( 1 ) THE short question which needs consideration in this revision is whether a proceeding initiated under Section 125,cr. P. C. by a Muslim woman against her husband is maintainable and whether she is entitled for maintenance as provided under the Muslim Woman (Protection of Rights on Divorce) Act, 1986 ("the Act" for short ). ( 2 ) THIS question arises in this revision under the following circumstances :a petition under Section 125, Cr. P. C. is filed by a Muslim woman claiming certain amount of maintenance against her husband - the petitioner herein. An application I. A. III is filed by the petitioner under Section 3 of the Act praying the Family Court to permit her to prosecute the proceedings under Section 125,cr. P. C. with an undertaking that she would not file any other application for grant of maintenance under any other enactment. It is contended on behalf of the husband that in view of the Act, the petition itself is not maintainable. Even if she had sought for consideration under Section 3, the same cannot be entertained by the Court viz. , the Family Court because that Court is not empowered to consider the application under the Act. It is argued on behalf of the petitioner that in view of the pronouncement in Begum Subanu alias Saira Banu v. A. M. Abdul Gafoor, AIR 1987 SC 1103 the present petition is maintainable and the same has to be considered. ( 3 ) THE learned Judge of the Family Court in her detailed order rejected the question of maintainability of the petition filed under Section 125, Cr. P. C. on the ground that the Court has yet to decide whether the petitioner was a divorced muslim woman and the maintainability of the petition cannot be decided in the absence of any finding and therefore, directed the petitioner to lead evidence on the main petition including the question of maintainability. ( 4 ) THE impugned order is questioned on the ground that the lower Court has erred in not applying the provisions of Section 5 of the Act under which both the parties by consent may opt and are governed by the provisions of Sections 125 to 128 of the Cr. ( 4 ) THE impugned order is questioned on the ground that the lower Court has erred in not applying the provisions of Section 5 of the Act under which both the parties by consent may opt and are governed by the provisions of Sections 125 to 128 of the Cr. P. C. Since the husband has refused such consent in this case, the Court has to proceed to hear the same on merits and the Family Court has no jurisdiction to entertain the petition and the petitioner is put to unnecessary ordeal of prolonged trial of the main case by postponing the decision regarding maintainability of the petition and jurisdiction of the Court. ( 5 ) REITERATING these contentions, Sri Zahedulla Meccai learned counsel for the petitioner contended that the trial Court has no jurisdiction to entertain the petition of this nature and that in the light of the judgment of this Court in Nagoor Mohamed Farook v. Smt. Mavada Roashan Jahan, ILR (2001) 403 it is not open to the respondent to reopen the said question and that the learned trial Judge is not correct in directing the petitioner to lead evidence both on the question of maintainability of the petition and her right to claim maintenance under Section 125,cr. P. C. ( 6 ) LEARNED counsel for the respondent while interpreting the provisions of the Act has relied on the latest judgment of the Apex Court in Danial Latifi v. Union of India (2001) 7 SCC 740 ) : ( AIR 2001 SC 3958 ) and submitted that the revision has no merit and is liable to be rejected. ( 7 ) THE jurisdictional question raised by the learned counsel for the petitioner does not bother me much in the light of the provisions of Ss. 7 and 8 of the Family Court Act, 1984. Section 7 defines jurisdiction of the Family Court and the explanation clarifies the nature of suits and proceedings which the Family Court exercises its jurisdiction. Section 8 provides for exclusion of jurisdiction and pending proceedings. Therefore the proceedings initiated under Section 125, Cr. P. C. are now exclusively triable by the Family Court in Bangalore. Section 7 defines jurisdiction of the Family Court and the explanation clarifies the nature of suits and proceedings which the Family Court exercises its jurisdiction. Section 8 provides for exclusion of jurisdiction and pending proceedings. Therefore the proceedings initiated under Section 125, Cr. P. C. are now exclusively triable by the Family Court in Bangalore. The learned counsel for the petitioner has failed to produce before me any other pronouncement of the High Court of Karnataka or the Apex Court in support of his contention that the Family Court, Bangalore has no jurisdiction to entertain the petition of this nature filed by a muslim woman claiming maintenance under Section 125, Cr. P. C. Filing of a petition of that nature is not to equate with maintainability of the proceedings and therefore, this question regarding jurisdiction is liable to be rejected. ( 8 ) NOW the next question canvassed for considering in this revision is a vexed question of fact and law. The question is whether the wife is a divorcee and she is barred by the provisions of the Act to claim maintenance under Section 125, Cr. P. C. The learned counsel for the petitioner has relied upon the judgment of this Court in Nagoor Mohamed Farook case (ILR 2000 (1) Kant 403) wherein this Court held that the Act is prospective and there is nothing to indicate in the Act that it is retrospective in nature. The jurisdiction of the Magistrate under Section 125 or 127 Cr. P. C. is not ousted where a wife approaches him for grant of maintenance provided the husband has no objection to pass such an order in view of the compliance of Section 5 of the Act. This Court also held that rights vested under Section 125, Cr. P. C. is not taken away by the new Act and in the absence of any provisions under the new Act creating a bar for enforcement of the order passed under Section 125, Cr. P. C. before coming into force of this Act, in my opinion, a Mohammadan wife who obtained an order of maintenance under Section 125 Cr. P. C. is entitled to enforce the said order of maintenance. P. C. before coming into force of this Act, in my opinion, a Mohammadan wife who obtained an order of maintenance under Section 125 Cr. P. C. is entitled to enforce the said order of maintenance. This Court after considering three judgments of this Court and three judgments of Uttar Pradesh, Gauhati and Gujarat laid down the law at para 23 of the judgment as follows : " (A) A petition under Section 125 Cr. P. C. by a Muslim divorced woman is perfectly maintainable subject to the provisions of Section 5 of the Act 1986. If the husband of a Muslim divorced woman refused to subject himself to the jurisdiction of the Magistrate, Magistrate is competent to grant maintenance to divorced Muslim woman under the provisions of the Act of 1986. (B) If the maintenance petition under Sections 125 to 128 Cr. P. C. initiated prior to the coming into force of the Act was pending before, the Magistrate on the date of coming into force of the Act of 1986, it has to be disposed of by such Magistrate in accordance with the provisions of Act 25 of 1986. (C) The petition to enforce the maintenance order granted prior to the coming into force of the Act is perfectly maintainable as her rights are crystallized and she gets vested right to recover maintenance from her former husband. ( 9 ) INSOFAR as the latter portion of this order which is not in dispute in this case, this Court is also very clear that the right to claim maintenace by a divorced Muslim woman is subject to the provisions of the Act of 1986. The learned counsel for the respondent has also not disputed the proposition of law laid down by this Court in Nagoor Mohamed Farook case (ILR 2001) (1) Kant 403) and it is submitted that much water has flown since the date of that judgment specially in view of the pronouncement of Five Judge Bench of the Apex Court in Danial Latifi case cited supra. ( 10 ) THE constitutional validity and the right of the Muslim woman for protection and maintenance under the Act and other provisions of the Act came up for consideration before Apex Court in Danial Latifi's case. ( 10 ) THE constitutional validity and the right of the Muslim woman for protection and maintenance under the Act and other provisions of the Act came up for consideration before Apex Court in Danial Latifi's case. While enunciating the purpose and object of the Act, the Apex Court laid down at paras 27 and 28 as follows :"the purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat. A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word "provision" indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the muslim husband is required to contemplate the future needs and make preparatory arragngements in advance formeeting those needs. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. The expression "within" should be read as "during" or "for" and that cannot be done because words cannot be construed contrary to their meaning as the word "within" would mean "on or before", "not beyond" and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make any pay maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section3 (3) but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time. " (Emphasis supplied) the Apex Court thus reiterated in para 30 in regard to the provisions of Section 125 Cr. P. C. "a comparison of these provisions with Section 125 Cr. It would extend to the whole life of the divorced wife unless she gets married for a second time. " (Emphasis supplied) the Apex Court thus reiterated in para 30 in regard to the provisions of Section 125 Cr. P. C. "a comparison of these provisions with Section 125 Cr. P. C. will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the arguments of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of Section 125 Cr. P. C. is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitoners. "at para34, Apex Court further held as under :" What is to be provided by way of mata is only a benevolent provision to be made in case of a divorced Muslim woman who is unable to miantain herself and that too by way of charity or kindness on the part of her former husband and not as a result of her right flowing to the divorced wife. The effect of various interpretations placed on Suras 241 and 242 of Chaper II of The Holy Quran has been referred to in Mohd Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556 : ( AIR 1985 SC 945 ). Shah Bano case clearly enunciated what the present law would be. It made a distinction between the provisions to be made and the maintenacne to be paid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . It made a distinction between the provisions to be made and the maintenacne to be paid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The enactment though purports to overcome the view expressed in Shah Bano case in relation to a divorced Muslim woman getting something by way of maintenacne in the nature of mata is indeed statutorily recognised by making provision under the Act for the pupose of the "maintenance" but also for " provision. " When these two expressions have been used by the enactment, which obviously means that the legislature did not intend to obliterate the meaning attributed to these two expressions by this Court in Shah Bano case. Therefore, we are of the view that the contentions advanced on behalf of the parties to the contrary cannot be sustained. "the Supreme Court has summed up conclusions as follows: " (1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously included 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 Sec-tion3 (1) (a) of the Act. (2) Liability of a Muslim husband to his divorced wife arising under Section 3 (1) (a) of the Act to pay maintenance is not confined to the iddat period. (3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relative who are liable to maintain her in proportion of the properties which they inherit on her death according to Muslim law from such divorced woman including her childern and parents. It any of the relatives being unable to pay maintenance, 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. " this judgment of the Apex Court is a direct answer to some of the contentions raised by the learned counsel for the petitioner. (4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India. " this judgment of the Apex Court is a direct answer to some of the contentions raised by the learned counsel for the petitioner. ( 11 ) NOW it is observed by the learned trial Judge that the question whether the petitioner therein was a divorced wife or not is a matter which requires consideration in the petition and whether the petition under Section 125 Cr. P. C. is maintainable. Since the Family Court has yet to express any opinion and give a finding on these two questions which according to the Family Court can only be considered after recording evidence, in my opinion does not suffer from any serious infirmity. The learned Judge while considering these two apsects, is required to dispose of these two questions having regard to the law enunciated by the Apex Court in Danial Latifi v. Union of India ( AIR 2001 SC 3958 ) cited supra. ( 12 ) IN the result, this revision fails and stands rejected. Revision petition dismissed. --- *** --- .