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2006 DIGILAW 1211 (PAT)

Md. Lzhar Alias Md. Lzhar Alam v. State Of Bihar

2006-12-08

ABHIJIT SINHA

body2006
Judgment 1. The aggrieved husband-O.P. of Maintenance Case No. 9/94 (Tr. No. 680/2000) has questioned the propriety of order dated 31.8.2004 passed by Shri S.K. Shukla, learned Judicial Magistrate, First Class, West Champaran at Bettiah whereby he has directed the petitioner herein to pay to his divorced wife (O.R No. 2 herein) maintenance at the rate of Rs. 300.00 per mensem and arrears of amount of maintenance accrued till 31.8.2004 amounting to Rs. 22,140.00 as also the current amount from 1.9.2004 onwards on the 7th day of the next month. 2. The case has a chequered history which may be noticed with brevity. O.P. No. 2 herein filed the aforesaid Maintenance case for a direction to the petitioner herein to pay her maintenance at the rate of Rs. 500.00 per month as also expenses of the litigation. The claim was based on the assertion that she was married to the petitioner in the year 1991 and the initial period was spent in marital bliss. However, later on, the petitioner started demanding a Hero Honda motorcycle and TV. and for the non-fulfilment thereof she was subjected to cruelty and assault by the petitioner and her in-laws and on 4.3.1996 evening an attempt was made to burn her by sprinkling kerosene oil but she, saved herself by raising hulla. An information was lodged on the basis whereof Maintenance Case No. 30/96 u/s 498-A I.P.C. was registered and after due investigation a charge-sheet was submitted u/s 498A I.P.C. and 3/4 Dowry Prohibition Act. It was also stated that the wife was unable to maintain herself whereas the husband by virtue of being a teacher in the madarsa earned Rs. 3,000.00 per month and possessed 10 bighas of land. The husband appeared and filed a show cause denying all the allegations and asserted that he had separated from his parents some five years back and was unable to maintain his wife. It was also stated that the husband was a landless labourer but was ready and willing to keep the wife with him. He also stated that he had divorced his wife on 28.4.1998. 3. At the trial the learned Magistrate while accepting the assertion of divorce directed the husband to pay maintenance to the wife from 13.3.1997 up to the date of divorce (24.4.1998) at the rate of Rs. He also stated that he had divorced his wife on 28.4.1998. 3. At the trial the learned Magistrate while accepting the assertion of divorce directed the husband to pay maintenance to the wife from 13.3.1997 up to the date of divorce (24.4.1998) at the rate of Rs. 300.00 per month and the same amount for the period of iddat of three months. The husband claimed to have paid the entire amount in keeping with the order and the learned counsel for the wife is said to have granted a certificate for the same. 4. The wife dissatisfied by the order of the learned Magistrate preferred Cr. Rev. 160/2000 before the Sessions Court and the learned Additional Sessions Judge-VI returned the case for fresh hearing on the point whether the Magistrate was justified in granting maintenance only till the period of iddat and gave liberty to claim maintenance u/s 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as "the Act"). On rehearing the matter the learned Magistrate ordered that the husband was to pay maintenance even after divorce at the rate of Rs. 300/-per month and also pay the dues. 5. The aggrieved husband questioned the propriety of the order passed by the Magistrate in an application under Sec. 482 Cr.P.C. being Cr. Misc. No. 19726/03 which was disposed of by order dated 6.4.2004 with directions to the learned Magistrate to rehear the matter and pass fresh orders. After rehearing the learned Magistrate held that the wife was entitled for maintenance even after divorce till she remarried at the rate of Rs. 300.00 per month. 6. The only question which falls for consideration here is whether "reasonable and fair provision and maintenance" under Sec.3(1 )(a) of the Act is limited till the period of iddat or it extends for the entire life of the divorced wife unless she remarries? 7. It has been submitted by the learned counsel for the petitioner that the learned Magistrate while passing the impugned order arrived at an erroneous finding on the question of payment of maintenance to the O.R No. 2 herein. With reference to Sec.3(1)(a) of the Act, it was submitted that with the enforcement of the new law of 1986 the settled principle was that a muslim divorcee is not entitled for payment of any maintenance after the period of iddat. With reference to Sec.3(1)(a) of the Act, it was submitted that with the enforcement of the new law of 1986 the settled principle was that a muslim divorcee is not entitled for payment of any maintenance after the period of iddat. It was also sought to be submitted that the learned Magistrate had also erred in law on the point of exercise of option as enshrined in Sec. 5 of the Act inasmuch as option was required to be exercised by both the parties but in the instant case it was only O.R No. 2 who had exercised such option and as such the impugned order was illegal. On these premise it was submitted that the impugned order of the learned Magistrate amounted to an abuse of the process of Court and would not be sustained in law. 8. Way back in Md. Yunus vs. Bibi Phenkani (1987 P.L.J.R. 65) an identical issue was raised and after analysis it was held by a Single Bench that whereas Sec.125 Cr.P.C. entitled a divorce woman to get maintenance from her husband until she remarried, Sec.3(1)(a) of the Act curtailed her said right to get maintenance till the period of iddat only. However, in a later judgment by a Single Bench in the case of Md. Arif vs. Bibi Jamila Khatoon, 1989(2) B.L.J. 671 , it was held that fair and reasonable provision under the Act is not for the period of iddat only, as maintenance for the iddat period is already provided for and that the fair and reasonable provision under the Act is for the period beyond the period of iddat. 9. The conflicting views in the two judgments necessitated a reference to a larger Bench regarding interpretation of Sec.3(1)(a) of the Act and the Division Bench in the case of Haroon Rashid vs. Raqueeba Khatoon, 1997(1) PLJR 278 after an indepth discussion of the matter and upholding the decision of Md. Arif (supra) concluded: (a) She is entitled to get a reasonable and fair maintenance for the iddat period and fair and reasonable provision to be made and paid to her within the iddat period in lump sum or in monthly instalments, which should be determined according to reasonable need of the divorced wife for the rest of her life or remarriage, the standard of living enjoyed by her during her marriage and the means of her former husband. In addition, she is entitled to have Mahr or Dower amount and all the properties given to her; (b) If she has not remarried after iddat period and if in spite of reasonable and fair provision made for the post-iddat period, she faces destitution and is unable to maintain herself, then she is entitled to her maintenance from her relatives who are entitled to inherit her property, on her death for the period as directed by the Magistrate; and (c) If her relatives are also not in a position to pay such maintenance, she is entitled to get it from the Wakf Board, at such period, as specified by the Magistrate. 10. The issue has finally been settled by a Constitution Bench of the Apex Court in the case of Danial Latifi vs. Union of India, (2001)7 SCC 740 which held that; (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 Sec.3(1)(a) of the Act. (2) Liability of a Muslim husband to his divorced wife arising under Sec.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 Sec. 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. 11. The learned Magistrate on consideration of the evidence on record came to the finding that the husband had the capacity to pay. Even otherwise, the Constitution Bench in paragraph-33 of the judgment held that "this Court in Ogla Tellis vs. Bombay Municipal Corpn. 11. The learned Magistrate on consideration of the evidence on record came to the finding that the husband had the capacity to pay. Even otherwise, the Constitution Bench in paragraph-33 of the judgment held that "this Court in Ogla Tellis vs. Bombay Municipal Corpn. and Maneka Gandhi vs. Union of India held that the concept of "right to life and personal liberty" guaranteed under Article 21 of the Constitution would include the "right to live with dignity". Before the Act, a Muslim woman who was divorced by her husband was granted a right to maintenance from her husband under the provisions of Sec.125 Cr.P.C. until she may remarry and such a right, if deprived, would not be reasonable, just and fair. Thus the provisions of the Act depriving the divorced Muslim woman of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and untimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Sec.125 Cr.P.C. Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all other women in India cannot be stated to have been effected by a reasonable, right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, a divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law as indicated under the Code which are available to Hindu, Buddhist, Jain, Parsi or Christan women or women belonging to any other community." 12. The ruling of the Apex Court also takes care of the submissions raised by the learned counsel for the petitioner that the learned Magistrate had erred in allowing the application only on the option exercised by the divorced wife. 13. Having given my anxious consideration to the issues involved I am definitely of the opinion that a divorced wife is entitled to maintenance from the husband even after the period of iddat. 14. 13. Having given my anxious consideration to the issues involved I am definitely of the opinion that a divorced wife is entitled to maintenance from the husband even after the period of iddat. 14. In the result, this application fails and is accordingly dismissed.