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2004 DIGILAW 537 (GAU)

Ainul Hoque v. Samina Yasmine

2004-09-27

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. This revision is directed against the judgment and order, dated 31.7.2003, passed by the learned Principal Judge, Family Court, Kamrup, Guwahati, in F.C. (Crl.) No. 187/99. 2. The Respondent, Must Sabina Yasmine, hereinafter referred as Sabina, filed an application under Section 125 Code of Criminal Procedure before the Principal Judge, Family Court, Kamrup, Guwahati, and it was registered as Case F.C. (Crl.) No. 187/99. The case of the applicant Sabina was that a marriage between her and the present Petitioner, Md. Ainul Hoque, was solemnized on 6.3.97 as per the Mohammedan custom and rites and thereafter the parties lived together as husband and wife and a female child was born to her on 28.3.98. The applicant, however, alleged that the husband used to ill treat her and harass her for alleged non-fulfillment of the demands of dowry and ultimately drove her out along with the baby. The husband also refused to maintain them. 3. The claim for maintenance was contested by the present Petitioner-husband, wherein the marriage between the parties and the paternity of the child was not disputed; but the Petitioner claimed that he has divorced his wife by giving Talaq. The husband, however, offered to maintain the child for life. The Court, thereafter, granted maintenance @ Rs. 500/- per month for the child and rejected the prayer for maintenance of the applicant, Sabina. 4. The applicant, thereafter, approached this Court in Criminal Revision No. 495/2000 and this Court remitted the matter back for consideration of the application for maintenance by treating the same to be an application under Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Both the parties accordingly appeared before the Family Court and the Court vide the impugned judgment, dated 31.7.2003, directed the Petitioner-husband to pay a sum of Rs. 800/- per month as maintenance for the applicant wife. Hence the present revision. 5. In the present case, as stated above, the status of the parties as such is not in dispute that there was a marriage between the parties and out of the said wedlock a child was born. The child has been granted maintenance on earlier occasion @ Rs. 500/- per month and the same has not been challenged by the Petitioner, who is serving as an Asstt. Engineer under the State Govt. The child has been granted maintenance on earlier occasion @ Rs. 500/- per month and the same has not been challenged by the Petitioner, who is serving as an Asstt. Engineer under the State Govt. As a matter of fact, the Petitioner had even offered to give maintenance to the child for her whole life. The dispute is in respect of maintenance for the wife, who has been given talaq. The point for consideration is, whether a divorced Muslim women is entitled to maintenance under Section 125 Code of Criminal Procedure or under Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986? Learned Counsel for the Petitioner has placed reliance on a decision of the Madhya Pradesh High Court in the case of Munni @ Mubarik v. State of Madhya Pradesh, 2002 (2) Crimes 435 to show that a divorce Muslim woman is not entitled to claim maintenance beyond Iddat period. We have perused the above decision and find that it is in respect of an application under Section 125 Code of Criminal Procedure only. So far the claim of maintenance by a divorce Muslim woman under Section 125 Code of Criminal Procedure is concerned, we hold that no maintenance is available under Section 125 Code of Criminal Procedure. 6. In the case of Denial Latifi and Anr. v. Union of India 2001 7 SCC 740 , a Constitution Bench of the Apex Court considered the validity of 1986 Act and the Court also considered the rights of a divorced Muslim woman in the light of Shah Banu Case 1985 (2) SCC 556 and the subsequent legislation enacted. The Court while upholding the validity of the Act summed up their conclusions as below : (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(1)(a) of the Act to pay maintenance is not confined to the iddat period. 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(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 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 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. 7. In view of what has been stated above, we find no force in the submission that a Muslim husband is liable to pay maintenance to a divorced wife for the period of iddat only. In the case of Munni @ Mubarik (supra), reliance of which has been placed by the Petitioner, we find that the learned Single Judge directed the Petitioner to approach under the Act of 1986. In the present case, we find that in the earlier revision, this Court had directed the Principal Judge, Family Court, Kamrup, Guwahati to treat the application under Section 3(1)(a) of the 1986 Act and, thereafter, consider the application of the applicant-Sabina. Accordingly, the trial Court re-considered the matter and granted maintenance @ Rs. 800/- per month to the applicant wife, who is a divorcee. In view of the decision in Denial Latifi (Supra) we hold that a divorced Muslim woman is entitled to maintenance beyond the period of iddat till her re-marriage. There is no allegation before us that the Respondent Sabina had re-married. The impugned order granting maintenance needs no interference. The revision stands dismissed Send down the records. Petition dismissed.