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2002 DIGILAW 480 (ORI)

Mustafiran Bibi v. Abdul Rasid Khan

2002-08-01

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT B. PANIGRAHI, J. — The appellant No. 1 - and her three children had prayed for monthly maintenance at the rate of Rs. 2000/- and arrear maintenance for Rs. 34,400/- for the period from 1.8.1990 till 6.1.1992 along with dower dues amounting to Rs. 4005.25 before the learned Judge, Family Court, Cuttack. They had also claimed return of the dowry articles like cash, orna¬ments, furnitures, clothing etc. from the respondent. 2. The respondent on the other hand had taken a plea that the appellant No. 1 was a divorcee with effect from 13.12.1991, and as such the proceeding is not maintainable in view of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, (hereinafter referred to as the ‘Act’) according to which a Muslim divorcee shall only be entitled to meher and other Dower. It was further claimed that an application under Section 125, Cr.P.,C. is not maintainable in view of Section 3 of the Act. The point of jurisdiction had also been taken by the respondents. The learned Judge, Family Court accepting the contention of the respondent, rejected the appellant’s prayers for maintenance, return of dowry articles and also dower amount. 3. Mr. Ghose, learned counsel appearing for the appellants submitted that the learned Judge, Family Court has palpably erred in arriving at the conclusion that such prayer cannot be granted by the Family Court. It was strenuously contended that the learned Judge, Family Court even did not go through the provi¬sions of Section 7 of the Family Courts Act, 1984, whereunder it has been clearly stipulated that the suit for maintenance, and suit for property are maintainable before the Family Court. In that view of the matter, the findings of the learned Judge, Family Court, that he had no jurisdiction, is, prima facie, unsustainable in law. 4. While determining the rights of the parties, we hope and trust that the learned Judge Family Court shall decide the case keeping in view the principles laid down in Danial Latifi and another v. Union of India, reported in JT 2001 (8) SC 218. For his better guidance, we hereby quote the following observa¬tion of the Supreme Court; (i) 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. For his better guidance, we hereby quote the following observa¬tion of the Supreme Court; (i) 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 of terms of Section 3(1)(a) of the Act. (ii) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not con¬fined to iddat period. (iii) A divorced Muslim woman 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 di¬vorced woman including her children and parents. If 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. 5. With the above observation, we set aside the order passed by the learned Judge, Family Court, Cuttack and remit the matter back for fresh disposal in accordance with the guidelines stipulated in the above judgment. 6. Since the matter is being dragged from 1992, we hope and trust that the learned Judge, Family Court shall dispose of the same within a period of three months from the date of receipt of the record. Learned counsel appearing for both the parties have agreed to appear before the learned Judge, Family Court on 19th August 2002 at 10.30 A.M. without any further notice. Regis¬try is directed to send back the records forthwith. 7. The appeal is disposed of accordingly without any order as to costs. CH. P. K.MISRA, J. I agree. Appeal disposed of.