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Madhya Pradesh High Court · body

2008 DIGILAW 1241 (MP)

Gultaj Bee v. Hanif Khan

2008-10-22

N.K.MODY

body2008
ORDER 1. Being aggrieved by the order dated 30.9.2005 passed by Sessions Judge, Indore in Criminal Revision No. 554/05, whereby the order dated 7.5.2005 passed by JMFC, Depalpur, District Indore in Criminal Case No. 10/2000, whereby the application filed by the petitioner under section 127 (3) CrPC was allowed holding respondent liable for payment of maintenance, was set aside, the present petition has been filed. 2. Short facts of the case are that the petitioner filed a petition under section 125 CrPC for grant of maintenance against the respondent alleging that petitioner is wedded wife of the respondent. The application was allowed by the learned trial Court and vide order dated 23.3.1986 respondent was directed to pay maintenance @ 250/- per month. Thereafter on 9.3.2000 an application was filed by the petitioner before the learned Court below alleging that in compliance of the order dated 23.3.1986 the maintenance was paid by the respondent from time to time, but no maintenance has been paid w.e.f. 15.3.1999, hence it was prayed that an amount of Rs. 2,950/- be awarded as maintenance from 9th of March 2000. This application was opposed by the respondent by filing reply, wherein it was alleged that respondent is not liable for payment of maintenance as the respondent has already given divorce to the petitioner by making a declaration in presence of witnesses on 21.10.1996. It was alleged that since 21.10.1996 respondent is no more husband of petitioner, therefore, respondent is not liable for payment of maintenance. It was also alleged that on 30.10.1996 respondent sent written declaration of divorce to the petitioner by registered post acknowledgment due. It was alleged that petitioner refused to take the said letter, hence the same came back with a postal remark of refusal. It was alleged that the fact that respondent has given divorce was duly communicated to the petitioner, hence the petition filed by the petitioner be dismissed. 3. After holding summary enquiry learned trial Court vide order dated 28.7.2001 dismissed the application filed by the petitioner against which a revision petition was filed by the petitioner on 31.7.2001, which was allowed vide order dated 21.2.2003 and the case was remanded back after setting aside the order passed by the learned trial Court with a direction to record the evidence and pass a fresh order. 4. 4. In compliance of the order passed by learned Revisional Court, an enquiry was held and by the impugned order dated 7.5.2005 the application filed by the petitioner was allowed and it was held that petitioner is entitled for maintenance. Against this order a revision petition was filed by the respondent which was numbered as 554/05 and learned Sessions Judge, Indore vide order dated 30.9.2005 allowed the revisicn petition filed by the respondent and set aside the order dated 7.5.2005 passed by JMFC, Depalpur, whereby it was held that respondent is liable for payment of maintenance, holding that respondent is not liable for payment of compensation, against which the present petition has been filed. 5. Mr. R.R. Trivedi, learned counsel for petitioner argued at length and submits that impugned order passed by the learned Revisional Court is illegal and deserves to be set aside. It is submitted that learned Revisional Court committed error in holding that respondent has given divorce to the petitioner on 21.10.1996. It is submitted that in fact neither any divorce was given nor it was communicated to the petitioner. It is further submitted that even if it is assumed that some divorce was given by the respondent, then too so far as payment of maintenance is concerned, respondent is liable for the same. It was prayed that petition be allowed and the impugned order passed by the learned Revisional Court be set aside. It was also prayed that a sum of Rs. 250/- was fixed as maintenance in the year 1986 and a considerable time has lapsed, therefore, the same be enhanced accordingly. 6. Miss Seema Sharma, learned counsel for respondent argued at length and submits that the application filed by the petitioner itself is not maintainable as the petitioner and respondent are from Muslim Community and as per personal law the application could have been filed under the provisions of Muslim Women (Protection of Rights on Divorce) Act; 1986. It is submitted that since no application has been filed by the petitioner under the said Act, therefore, no illegality has been committed by the learned Revisional Court in dismissing the application filed by the petitioner. 7. It is submitted that since no application has been filed by the petitioner under the said Act, therefore, no illegality has been committed by the learned Revisional Court in dismissing the application filed by the petitioner. 7. From perusal of the record it appears that to prove the fact that the divorce has taken place, respondent has examined himself as NA W-1, Mohanlal Rathore NAW-2 and lndorilal NAW-3, while petitioner has examined Qadir father of petitioner as AW-1 and petitioner as AW-2. 8. Muslim Women (Protection of Rights on Divorce) Act, (which shall be referred herein after as an Act) has been enacted in the year 1986 with an object to protect the rights of Muslim Women who have been divorced by, or have obtained divorce from, their husband. 8. Muslim Women (Protection of Rights on Divorce) Act, (which shall be referred herein after as an Act) has been enacted in the year 1986 with an object to protect the rights of Muslim Women who have been divorced by, or have obtained divorce from, their husband. Section 4 and 7 of the Act reads as under: Section-4: Order for payment of maintenance -- (1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where the Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order: Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her : Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. (2) Where a divorced woman is unable to maintain herself and she has no relative as mentioned in sub-section (1) or such relatives or anyone of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second provison to subsection (1), the Magistrate may, by order direct the State Wakf Board, established under section 9 of the Wakf Act, 1954 (29 of 1954), or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order. Section 7. -- Transitional Provisions -- Every application by a divorced woman under section 125 or under section 127 of the Code of Criminal Procedure, 1973 (2 of 1974) pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of section 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act. 9+10. In the matter of Noor Saba Khatoon v. Mohd. Quasim, reported in 1997 CriLJ 3972, wherein while considering right to maintenance of Muslim wife, Hon'ble apex Court observed that preamble of the Act, thus, aims to protect the rights of Muslim Women who have been divorced. The 1986 Act was enacted as a sequel to the judgment in Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 . The question of maintenance of children was not involved in the controversy arising out of the judgment in the case of Shah Bano Begum (supra). The Act was not enacted to regulate the obligations of a Muslim father to maintain his minor children unable to maintain themselves which continued to be governed with section 125 CrPC. This position clearly emerges from a perusal of the relevant provisions of the 1986 Act. 11. The Act was not enacted to regulate the obligations of a Muslim father to maintain his minor children unable to maintain themselves which continued to be governed with section 125 CrPC. This position clearly emerges from a perusal of the relevant provisions of the 1986 Act. 11. In the matter of Shamim Ara v. State of U.P., reported in AIR 2002 SC 3551 , wherein the plea of "Talaq" taken by husband in written statement in proceedings initiated by wife for maintenance by delivering copy of the same to the wife, it was held by the Hon'ble apex Court that neither marriage between parties stands dissolved on date of filing of written statement nor does liability of husband to pay maintenance comes to an end on that day. In the matter of Iqbal Bano v. State of U.P., reported in (2007) 6 SCC 785 , wherein Hon'ble apex Court held that Muslim Women Act applies only to divorced women and not to women who are not divorced. It was further held that the proceedings under section 125 CrPC and the 1986 Act, are tried before the same Court, and given the beneficial nature of the 1986 Act; even if a divorced Muslim woman applied under section 125 CrPC, it is open to the Court to treat it as an application under the 1986 Act. 12. From perusal of the record it appears that respondent has utterly failed to prove that the divorce was given by the respondent to the petitioner on 21.10.1996. From the evidence on record it is amply proved that at the time of giving such divorce the petitioner was not present. Petitioner has entered into witness box and has specifically stated that petitioner has not received registered letter whereby the divorce was communicated to the petitioner. Apart from this inspite of taking divorce no step was taken by the respondent for years together to get an order from the Court to the effect that respondent is not liable for payment of maintenance as respondent has already taken divorce from the petitioner. It is only when the petitioner filed an application u/s 127 (3) CrPC, then only the respondent has taken the defence that respondent has divorced the petitioner in the year 1996 itself. It is only when the petitioner filed an application u/s 127 (3) CrPC, then only the respondent has taken the defence that respondent has divorced the petitioner in the year 1996 itself. Even if for the sake of arguments if it is accepted that the respondent has divorced the petitioner, then too the liability of respondent does not come to an end and the respondent is liable for payment of maintenance under the provisions of CrPC and also Muslim Women (Protection of Rights on Divorce) Act. 13. The view expressed by the First Revisional Court that no Muslim woman can maintain a petition under section 125 CrPC is clearly unsustainable. The Muslim Women (Protection of Rights On Divorce) Act, 1986 only applies to divorced women and not to a woman who is not divorced. Furthermore, proceedings under section 125 CrPC are civil in nature. Even if the Court noticed that there was a divorced Muslim woman who had made an application under section 125 CrPC, it was open to the Court to treat the same as a petition under the 1986 Act considering the beneficial nature of the legislation, especially since proceedings under section 125 CrPC and claims made under the Muslim Women Act are tried by the same Court. In view of this, this Court has no hesitation in holding that the order passed by the learned Revisional Court is illegal, improper and incorrect. 14. Since the maintenance of Rs. 250/- was fixed in the year 1996 and more than 12 years have lapsed, therefore, keeping in view the dearness, in the opinion of this Court it is necessary that it requires reassessment of the amount of maintenance. In the facts and circumstances of the case the petition filed by the petitioner is allowed. The order dated 30.9.2005 passed by Sessions Court, Indore in Cr.R No. 554/05 is set aside and the order dated 7.5.2005 passed by JMFC, Depalpur in Criminal Case No. 10/2000 is maintained with a further direction that the learned trial Court shall reassess the amount of maintenance, which shall be payable to the petitioner. Parties are directed to remain present before the trial Court on 29.9.2008. Till the amount of maintenance is reassessed by the learned trial Court, respondent is directed to pay interim maintenance to the petitioner @ Rs. Parties are directed to remain present before the trial Court on 29.9.2008. Till the amount of maintenance is reassessed by the learned trial Court, respondent is directed to pay interim maintenance to the petitioner @ Rs. 2,000/- per month, w.e.f. 1.8.2008 promptly without fail, in case of default respondent shall be further liable to pay interest on the above mentioned amount @ 12% p.a. For the convenience of petitioner it is further directed to the petitioner to open a Bank Account and submit the particulars before the learned Court below to enable the respondent to deposit the amount of maintenance regularly. 15. With the aforesaid observations, petition stands disposed of.