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2008 DIGILAW 1656 (RAJ)

Mohammed Yaseen v. Jareena Banu

2008-07-09

PRAKASH TATIA

body2008
Honble TATIA, J.—Heard learned counsel for the parties. (2). The petitioner has challenged the proceedings initiated under Section 125 Cr. P.C. by the non-petitioner wife. The petitioner and nonpetitioner are Muslim and, therefore, are governed by Muslim Law. They are governed by the provisions under Section 125 Cr. P.C. to limited extent also. (3). The non-petitioner submitted the first application under Section 125 Cr. P.C. in the court of Additional Chief Judicial Magistrate, Nathdwara on 14.1.2002 and prayed for maintenance @ Rs.1000/- per month. The said petition under Section 125 Cr. P.C. being Criminal Original Case No.32/2002 was decided by the learned trial court vide order dated 31.10.2002 whereby maintenance @ Rs.1000/- per month from the date of application was awarded for non-petitioners son till he attains majority. However, the non-petitioner-wifes maintenance application was allowed to the extent that the petitioner shall pay Rs.1000/- per month to the non-petitioner from 14.1.2002 upto the period of iddat only. This order attained finality. However, the trial court in the same order observed that for other relief about future maintenance, the non-petitioner will be free to move another application. (4). After the said order of the trial court dated 31.10.2002, the non-petitioner submitted an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Act of 1986 ahead) and again prayed for the grant of maintenance @ Rs.1000/- per month. This petition numbered 321/2002 was allowed by the trial court vide order dated 7.7.2003 and the trial court awarded maintenance to the non-petitioner @ Rs.1000/- per month from 23.11.2002 until the non-petitioner marries. (5). The said order of trial court dated 7.7.2003 was challenged by the petitioner by preferring revision No.13/2003 before the Additional Sessions Judge, Nathdwara, who vide his order dated 24.8.2004 allowed the revision filed by the petitioner and the order of the trial court dated 7.7.2003 was set aside. (6). After above two decision in the matter for grant of maintenance, the petitioner submitted another application under Section 125 Cr. P.C., which according to the petitioner has been filed by the non-petitioner to harass the petitioner by abuse of the process of law. (7). (6). After above two decision in the matter for grant of maintenance, the petitioner submitted another application under Section 125 Cr. P.C., which according to the petitioner has been filed by the non-petitioner to harass the petitioner by abuse of the process of law. (7). According to the learned counsel for the petitioner, the non-petitioner in her statement recorded in one case No.38/2003 in the court of District Judge, Bhilwara she gave her statement on oath that she is Post Graduate and she is doing stitching work and is maintaining herself and her son. She also stated that the petitioner is only a Secondary pass. In her cross-examination, she specifically stated that it is wrong to say that she cannot maintain herself. Even she stated that she did not file any petition for getting maintenance from the petitioner. According to the learned counsel for the petitioner, the non-petitioner sought complete relief under Section 125 Cr. P.C. for maintenance but as per the personal law, the non-petitioner could have been awarded maintenance upto iddat period, which has been awarded by the trial court vide order dated 31.10.2002. The non- petitioner availed the opportunity to get more maintenance in view of the observation made in the order dated 31.10.2002 and moved an application under Section 3 of the Act of 1986 and got order in her favour, which was set aside by the revisional court and that order has not been challenged by the non-petitioner, therefore, all her rights have already been stand decided. In view of the above reasons, the filing of another petition under Section 125 Cr. P.C. is nothing but an abuse of the process of court. Learned counsel for the petitioner also submitted that in view of Section 5 of the Act of 1986, the petition filed by the non-petitioner under Section 125 Cr. P.C. is not maintainable. (8). Learned counsel for the non-petitioner vehemently submitted that vide order dated 31.10.2002 the learned trial court gave liberty to the non-petitioner to move another application in view of legal bar against grant of maintenance beyond iddat period, therefore, the non-petitioner submitted an application under Section 3 of the Act of 1986, which was allowed by the trial court by order dated 7.7.2003 but unfortunately that order was set aside by the revisional court. The non-petitioner was advised to move application under Section 125 Cr. The non-petitioner was advised to move application under Section 125 Cr. P.C. and, therefore, she is not abusing the process of court by availing lawful remedy available to her. The learned counsel for the non-petitioner relied upon the judgment of the Hon`ble Supreme Court delivered in the case of Danial Latifi & Anr. vs. Union of India reported in 2001(2) Apex Court Journal 423 (S.C.) wherein the Honble Supreme Court after considering the provisions, namely, Section 3(1)(a) and 4 of the Act of 1986 held that a Muslim husband is liable to make reasonable and fair provision for the future of divorced wife which include her maintenance as well such reasonable and fair provision extending beyond the iddat period must be made by the husband. The Hon`ble Supreme Court clearly held that the liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period and further held that a divorced Muslim woman who 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 according to Muslim law. Not only this, as per laws 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 on refusal to the aggrieved party i.e. the divorced Muslim woman. According to the learned counsel for the non- petitioner in view of the judgment of the Hon`ble Apex Court delivered in the case of Danial Latifi (supra), the non- petitioner is entitled to proceed with the maintenance claimed under the provisions of Code of Criminal Procedure. (9). I have considered the submissions placed by the learned counsel for the parties and have perused the facts which have been referred in detail above. (10). (9). I have considered the submissions placed by the learned counsel for the parties and have perused the facts which have been referred in detail above. (10). It is undisputed that the petitioner and non-petitioner are governed by their personal law i.e. Muslim Law and there is a specific Act governing the subject of maintenance for Muslim woman and there is restriction against the grant of maintenance in certain circumstances as well as there is a provision for the grant of maintenance even when the husband is not able to maintain his wife, then for getting the maintenance from the relatives of the divorced Muslim lady and even then if she is not in a position to get maintenance from the relatives, then from the Wakf Board. It is also not disputed by the parties that initially provision for grant of maintenance to the divorced Muslim woman is upto the period of iddat but in view of the special Act i.e. the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman got more right and she can claim maintenance beyond the period of iddat as per the law laid down by the Hon`ble Apex Court wherein a Muslim husband has been made liable to make reasonable and fair provision for the future of the divorced wife which includes her maintenance as well such a reasonable and fair provision extending beyond the iddat period. (11). The above facts and the legal position only makes it clear that a divorced Muslim woman has a right to claim maintenance under the personal law upto the period of iddat and thereafter maintenance under the provisions of the Act of 1986. That right is dependent upon the facts of each case and it is not the law that a wife is entitled to maintenance only because of the reason that she is wife irrespective of whether she is entitled to it or not in accordance with law and on facts. If a wife has sufficient means to maintain herself and has all provisions for her living respectably in the society, the court may refuse to grant maintenance to the divorced wife. If a wife has sufficient means to maintain herself and has all provisions for her living respectably in the society, the court may refuse to grant maintenance to the divorced wife. The law in the matter of grant of maintenance to the wife as well as divorced Muslim woman is very liberal in view of the fact that the Legislative as well as the Judicial approach is based upon humanitarian considerations, which always favours weaker section. Therefore normally the maintenance is not denied to weaker section under various provisions of law for the grant of maintenance. This position continued for long and beyond decades, then several cases came up where the courts found that the claims have been raised only because of the reason that there is sympathy towards weaker section of the society and sometimes the claimants proceed under the assumption that she is a virtually a partner in the income of husband and not a dependent and is entitled to claim maintenance from the income and properties of the husband even if she has not only sufficient means but regular income, the income more than her husbands income. Therefore, the weaker section of the society, for whose benefit so many laws have been enacted to make them stronger, even after getting good education sufficient to earn livelihood, claims for maintenance from the husband. The cases are required to be seperated where mere sympathy may be ground for relief. (12). Be it as it may be, in the present case the non-petitioner first application under Section 125 Cr. P.C. and that was allowed by the trial court vide order dated 31.10.2002 granting limited relief to the nonpetitioner. That order in appeal has not been challenged by the nonpetitioner. The non-petitioner submitted another petition, which is under Section 3 of the Act of 1986, which has been allowed by the trial court vide order dated 7.7.2003 but that order was set aside by the revisional court vide order dated 24.8.2004. The order dated 24.8.2004 attained finality as it had not been challenged by the non-petitioner. Then the non-petitioner after about 10 months from the order dated 24.8.2004 submitted another petition under Section 125 Cr. The order dated 24.8.2004 attained finality as it had not been challenged by the non-petitioner. Then the non-petitioner after about 10 months from the order dated 24.8.2004 submitted another petition under Section 125 Cr. P.C. even after giving her statement in the court of law on 18.9.2004 that she did not move even application for getting maintenance from her husband and that she is in a position to maintain herself and her son. In the facts of the case and looking to the education of the petitioner and non-petitioner, which is Secondary that of the petitioner and Post Graduate degree of the non-petitioner and her statement in the court of law and in view of finality of the order passed under the Act of 1986, I do not find any reasonable cause for filing of petition under Section 125 Cr. P.C. The non-petitioner could have obtained the relief of maintenance under Section 125 Cr. P.C., if she would have challenged the first order i.e. the order dated 31.10.2002 for getting maintenance beyond iddat period if it could have been granted under Section 125 Cr. P.C., which she is now seeking by moving second application. Therefore, her second petition is not maintainable in view of the earlier decision dated 31.10.2002. As far as her claim under Section 3 of the Act of 1986 is concerned, that has been denied by the revisional court and that order has attained finality. (13). At this juncture, it will be worthwhile to refer Section 5 of the Act of 1986 : "5.Option to be governed by the provisions of Section 125 to 128 of Act 2 of 1974 - If, on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974); and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly." (14). According to the learned counsel for the petitioner, the nonpetitioner never undertook to be governed by Section 125 to 128 of the Code of Criminal Procedure, 1973 and, therefore, the petition of the nonpetitioner under Section 125 Cr. P.C. was not maintainable. (15). I need not to consider this aspect of the matter in view of the peculiar facts of the case referred above, which clearly shows that the proceedings under Section 125 Cr. P.C., which is in fact third petition for the same relief, will be nothing but an abuse of the process of court. Hence, the misc. petition is dismissed. The proceedings under Section 125 Cr. P.C. registered as Misc. Case No.339/2005 itself is quashed and set aside.