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2008 DIGILAW 1066 (BOM)

SYED YOUNUS s/o DADAMIYA v. JABEEN w/o SYED YOUNUS @ JABEEN d/o SHAIKH SAGIRODDIN

2008-07-25

S.S.SHINDE

body2008
ORAL JUDGMENT :- Rule. Rule made returnable forthwith. By consent of the parties, the matter is taken up for final disposal at the admission stage. 2. The present petition is directed against the final judgment and order dated 8-2-2007 passed by the learned Additional Sessions Judge, Ahmednagar in Criminal Revision No. 171 of 2005. The brief facts of the case are as under : 3. The petitioner and the respondent No.1 are Muslim by religion and their marriage was solemnized on 27-12-1991. Out of the wedlock, one son and two daughters are begotten. The relations between the parties were strained. The petitioner has sued the respondent for restoration of conjugal rights and during pendency of the proceedings, the respondent-wife had taken "Khula" and the petitioner-husband had relieved her from the marital tie on 1-7-2003. 4. The respondent-wife filed a Criminal Application No. 20 of 2004 claiming maintenance for herself, a son and two daughters, under section 125 of the Code of Criminal Procedure before the learned J.M.F.C. The petitioner appeared before the learned J.M.F.C. and stated that the wife has taken Khula from the petitioner and the petitioner has relieved the respondent-wife from the marital tie and hence the divorce is taken place between the parties. In view of this, he prayed that the application for maintenance under section 125 of Criminal Procedure Code should be dismissed. 5. The karned 8th J.M.F.C. Ahmednagar vide his judgment and order dated 2-9-2005 has allowed the application for maintenance and granted Rs. 1200/- to the respondent-wife and Rs. 900/- p.m. to each of the children. 6. Being aggrieved by the said judgment and order passed by the learned J.M.F.C. Alunednagar, the petitioner filed Criminal Revision bearing No. 171 of 2005. By Order dated 8-2-2007, the Additional Sessions Judge, Ahmednagar dismissed the revision filed by the petitioner. Being aggrieved by the said order in revision the present petition is filed by the petitioner. 7. The learned advocate appearing for the petitioner submitted that the respondent-wife used to visit her parents house frequently. The petitioner has filed proceedings for restitution of conjugal rights and during the pendency of the petition the respondent wife had taken "Khula" on 1-7-2003. He further submitted that as per the provision of Mohammedan Law the wife is entitled to take Khula and Khula is one of the method to dissolve the marriage at wife's request. The petitioner has filed proceedings for restitution of conjugal rights and during the pendency of the petition the respondent wife had taken "Khula" on 1-7-2003. He further submitted that as per the provision of Mohammedan Law the wife is entitled to take Khula and Khula is one of the method to dissolve the marriage at wife's request. He further submitted that the Chapter of divorce as contained in "Mulla's principles of Mohammedan Law, 19th Edition, section 319 deals with the topic of Khula and as per the provisions of Mohammedan Law, the respondent-wife is no more wife as the relations between the parties came to an end on 1-7-2003 as husband and wife. He further submitted that the respondent wife has concealed the material fact of Khula in the application under section 125 of Criminal Procedure Code which was filed by her en 15-4-2004. 8. The learned advocate for the petitioner further submitted that the petitioner has filed R.C.S. No. 70 of 2004 which came to be decided by the learned C.J.S.D. Ahmednagar and in the said proceeding the learned Judge has recorded the findings that the marriage between the parties has dissolved on 1-7-2003. He submitted that the Courts below have failed to consider the fact that the said decision has not been challenged by the respondent-wife and the same has attained finality. It is further argued that the Court's below have failed to consider the findings recorded by the Civil Judge based on the evidence and it was not open for the respondents to submit that the divorce is not effected as per the provisions of law. He further submitted that the Courts below have miserably failed to appreciate the law laid down by this Court in the case of Dagdu Chotu Pathan, reported in 2002(3) MilL] 602. He further submitted that mere pemsal of the said judgment makes it clear that it deals with the matters where husband takes a plea of divorce and the divorce is not proved and it is held by mere statement that the divorce does not take effect. In the said eventuality the husband will have to prove the divorce as per the procedure of law. He submitted that in the present case the facts are totally different. The wife herself has obtained Khula and the same is substantiated by a decree in R.C.S. No. 70 of 2004. In the said eventuality the husband will have to prove the divorce as per the procedure of law. He submitted that in the present case the facts are totally different. The wife herself has obtained Khula and the same is substantiated by a decree in R.C.S. No. 70 of 2004. He further submitted that the divorced Muslim wife cannot claim maintenance under section 125 of the Criminal Procedure Code as per the law laid down by this Court in the case of Karim Abdul Rehman Shaikh VS. Shehnaz Karim Shaikh and others, reported in 2000(3) MhLJ 555 . 9. The learned advocate appearing for the respondents supported the judgment of the learned J.M.F.C. as well as the Revisional Court and submitted that the Courts below have rightly come to the conclusion that the wife and children are entitled for maintenance and no interference is called for by this Court with the concurrent findings of facts and therefore, the writ petition deserves to be dismissed. 10. I have heard the learned counsel appearing for the respective parties. The mere perusal of the judgment of this Court in the case of Karim Abdul Rehman Shaikh (supra) would show that after commencement of the Muslim Act, a Muslim divorced wife cannot apply for maintenance under the provisions of Chapter IX of the Criminal Procedure Code. It is only under section 5 of the Muslim Women Act, by agreement; the husband and the divorced wife can approach a Magistrate under Chapter IX of the Code. 11. The view expressed by the Full Bench in afore stated case has been again reiterated by this Court in the case of Shaikh Mohammed slo Shaikh Vijir Patel VS. Naseem Begum wlo Sk. Mohamed and anr., reported in 2006(5) MhLJ 339 = 2006 All MR (Cri.) 2411. In the said case it is held that a Muslim divorced wife cannot apply for maintenance under the provisions of Chapter IX of the Criminal Procedure Code and it is only under section 5 of the Muslim Women Act by an agreement, the husband and the divorced wife may approach the Magistrate. 12. The Hon'ble Supreme Court in the case of Danial Latif and another VS. 12. The Hon'ble Supreme Court in the case of Danial Latif and another VS. Union of India, reported in AIR 2001 SC 3958 has upheld the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the Hon'ble Supreme Court while comparing the provisions of sections 3 and 4 of the Muslim Women (Protection of Right of Divorce) Act, 1986 with section 125 of Criminal Procedure Code in para 30 and 31 has held that :- "30. A comparison of these provisions with section 125, Criminal Procedure Code will make it clear that requirements provided in section 125 of Criminal Procedure Code 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 is satisfied. If that is so, the argument 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, Criminal Procedure Code 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 petitioners. 31. Even under the Act the parties agreed that the provisions of section 125, Criminal Procedure Code 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, Criminal Procedure Code would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional." 13. In the instant case the respondent-wife filed an application for maintenance under section 125 of Criminal Procedure Code on 15-4-2004 before the learned J.M.F.C. Ahmednagar being Misc. Criminal Application No. 20 of 2004. The said application was decided in her favour on 2-9-2005. The Revision filed by the petitioner was decided against the petitioner in 2007. 14. It would be relevant to refer the order passed in R.C.S. No. 70 of 2004 filed by the present petitioner against the respondent. Criminal Application No. 20 of 2004. The said application was decided in her favour on 2-9-2005. The Revision filed by the petitioner was decided against the petitioner in 2007. 14. It would be relevant to refer the order passed in R.C.S. No. 70 of 2004 filed by the present petitioner against the respondent. In the said R.C.S. the Civil Judge, Senior Division Ahmednagar passed the following order on 24-6-2005 :1) The suit is decreed with costs as under. 2) It is hereby declared that the matrimonial tie between the parties is dissolved since 1-7-2003. 3) Decree be drawn accordingly. 15. In the instant case the R.C.S. No. 70 of 2004 filed by the present petitioner was decreed and it was declared that the matrimonial tie between the parties i.e. between the present petitioner and the respondent-wife is dissolved since 1-7-2003. The order passed by the learned Joint C.J.S.D. Ahmednagar dated 24-6-2005 attained the finality. The respondent-wife filed an application for maintenance under section 125 of Criminal Procedure Code on 15-4-2004. The order passed by the Joint C.J.S.D. Ahmednagar in declaring that the matrimonial tie between the present petitioner and respondent-wife are dissolved since 1-7-2003 passed even before the respondent-wife obtained "Khula" against the petitioner. 16. The learned J.M.F.C. proceeded to decide the application of respondent-wife on merits. In fact the application of the wife was not maintainable before the learned J.M.F.C. under section 125 of Criminal Procedure Code in view of the law laid down by this Court in the aforesaid cases. The Apex Court has upheld the validity of the sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and compared those provisions with section 125 of Criminal Procedure Code and held that after the said Act the remedy is available to the wife under the said Act. 17. In view of the law laid down by this Court as well as in view of the fact that the validity of sections 3 and 4 of Muslim Women (Protection of Rights on Divorce) Act, 1986 has been upheld by the Apex Court, the application filed by the wife under section 125 of Criminal Procedure Code before the learned J.M.F.C. was not maintainable. 18. 18. Taking into account the clear declaration by the Full Bench in reference to question No.3 and further on the foundation of sections 3 and 5 of the Muslim Women Act, I am of the view that such application filed by the Muslim divorced women under section 125 of the Criminal Procedure Code without following the due procedure as contemplated under section 5 of the Muslim Women Act itself would not be maintainable. Therefore, the impugned order of grant of maintenance, in the facts and circumstances of the case, is unsustainable. It is quashed and set aside accordingly. However, liberty is granted to the respondent wife to file appropriate application afresh, in accordance with law. 19. The writ petition is allowed. Rule is made absolute in terms of prayer clause "B". Petition allowed.