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2002 DIGILAW 252 (GAU)

Samina Yasmin v. State of Assam and Another

2002-06-12

D.BISWAS

body2002
D. BISWAS, J- Heard Mr M Bhuyan, learned counsel for the petitioner and also Mr A.S. Choudhury, learnecj senior counsel for the respondent No. 2. Also heard Ms B. Rajkhowa, learned P.P. 2. This petition has been filed by Mustt. Samina Yasmin challenging in part the judgment and order dated 21.7.2000 passed by the learned Principal Judge, Family Court, Kamrup, Guwahati in Case No. F.C. (Crl.) 187/99 refusing maintenance allowance. The part of the judgment and order impugned is quoted below: "In the result, the petition u/s 125 Cr.P.C. is partly allowed. The second party (Md. Ajnul Haque) shall pay Rs. 500/- (Rupees five hundred) p.m. to the minor daughter Ayesha Yashmin w.e.f. 28.3.2000, and the money shall be received by her mother. The petition filed by Mustt. Samina Yashmin with respect to her claim of maintenance u/s 125 Cr.P.C. is rejected. However, she may file a petition u/s 3(2) of the Muslim Women Act if so advised. Parties to bear their own costs. Let a copy of this judgment be given to the first party free of cost." 3. It is submitted by Mr Bhuyan that the petition filed under Section 7 of the Family Court Act read with Section 125 of the Code of Criminal Procedure ought to have been treated as a petition filed under Section 3(2) of the Muslim Women (Protection of Rights of Divorce) Act, 1986. The learned counsel controverted the order passed by the learned Principal Judge on the ground that it was a mere technicality and could have been set at right by the learned Court below. 4. During the course of brief argument, my attention has been drawn to a judgment of the Apex Court in the case of Danial Latifil and antoher-Vs-Union of India, reported in (2001) 7 SCC 740 where the Supreme Court held as follows: "31. Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125 CrPC would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional. ……………………….. ……………………….. 36. This being the position, the Act cannot be held to be unconstitutional. ……………………….. ……………………….. 36. While upholding the validity of the Act, we may sum up our conclusions: (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 a Muslim husband to his divorced wife arising under Section 3 (l)(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 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 parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the Staff 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." 5. It, therefore, appears that the petition filed by the revision petitioner if disposed of on merit, might have provided for maintenance and other reliefs throughout her life. In view of this position of law, the revision petition is allowed and the matter relating to the claim of the revision petitioner for maintenance and other reliefs is remanded to the Court of the learned Principal Judge, Family Court for decision after affording necessary opportunity to the parties concerned to adduce evidence. The petition shall be disposed of within a period of three months. 6. This revision accordingly stands disposed of.