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Bombay High Court · body

2009 DIGILAW 111 (BOM)

Hashim Huzursab Sayeed v. Goribi Hashim Sayeed

2009-01-23

S.S.SHINDE

body2009
Judgment : The present application is filed by the applicant, challenging the judgment and order dated 21st October, 2000 passed by the Additional Sessions Judge, Latur in Criminal Revision Application No. 126/1999. 2. Background facts of the case are as under:- The respondents herein filed an application under section 125 of Criminal Procedure Code before the Judicial Magistrate, First Class, Latur praying for maintenance for Rs.500/- for respondent No. 1 and Rs.400/- for respondent No. 2. It was the case of the respondents before the J.M.F.C. that the applicant herein is the husband and since he has neglected and refused to maintain the respondent Nos. 1 and 2, the application for maintenance is filed. 3. The present applicant filed his reply before the J.M.F.C. and resisted the application. It was the contention of the applicant that respondent No. 2 is not the son of the applicant. However, the relations with respondent No. 1 was admitted by the applicant. It was contention of the applicant that he is poor person and he is not able to pay maintenance amount of Rs.700/-. He is working as a driver of private jeep and he is having three and half acres Jirayat land in the name of his father and he has no other income. It was the contention of the applicant that the respondent No. 1 has left the house willfully of the applicant and residing with her father. It was further contended that the applicant has given Talak to the respondent wife on 22.9.1997. Therefore, she is not entitled for the maintenance and therefore, the application of the wife for maintenance should be rejected. 4. Thelearned J.M.F.C., by his order dated 27.9.1999, was pleased to allow the application of the present respondents and directed the applicant to pay Rs.500/-p.m. to respondent No. 1 uptil the Iddat period is over as a Mehar amount and Rs.250/-have been granted as maintenance to the respondent No. 2 from the date of application. 5. Being aggrieved by the above order of the J.M.F.C., the respondents herein preferred Criminal Revision No. 216/1999, praying for grant of maintenance to the respondent No. 1 till her death or till she re-marries. 6. 5. Being aggrieved by the above order of the J.M.F.C., the respondents herein preferred Criminal Revision No. 216/1999, praying for grant of maintenance to the respondent No. 1 till her death or till she re-marries. 6. After hearing both the parties, Criminal Revision No. 126/99 was partly allowed by the Sessions Judge by his judgment and order dated 21st October, 2000, directing the present applicant to pay maintenance to present respondent No. 1 at the rate of Rs. 500/- p.m. till her death or she re-remarries from the date of application. 7. It is the case of the present applicant that revision was filed by him, being Criminal Revision No. 2/2000 before the learned Sessions Court, Latur, praying for setting aside the judgment and order dated 27th October, 1999, passed by the Judicial Magistrate, First Class, Latur. The learned Sessions Judge heard both the revisions and dismissed the Criminal Revision No. 2/2000 by common judgment and order dated 21st October, 2000 filed by the present applicant and the revision filed by the respondents was partly allowed. 8. The present application is filed by the applicant, being aggrieved by the common judgment and order dated 21st October, 2000 passed by the Additional Sessions Judge, Latur in Criminal Revision No. 126/1999, partly allowing the revision application of respondent Nos. 1 and 2. 9. The learned counsel appearing for the applicant submits that the J.M.F.C. Latur was correct in holding that the divorce/Talak has been executed by the applicant by reducing the same in writing and same has been communicated to the present respondent No. 1 by post, postal receipt is at Exh. 36 and therefore, the J.M.F.C. Latur has directed the present applicant to pay Rs.500/-p.m. to respondent No. 1 as Mehar amount till the Iddat period is over. He further submits that the J.M.F.C. has rightly rejected the claim of the respondents under section 125 of Cr.P.C. It is further submitted that the trail Court has committed error in granting the maintenance to respondent No. 2, which was challenged before the Revisional Court and the Revisional Court was not justified in rejecting the revision of the present applicant. 10. The learned counsel further submitted that in view of the provisions of section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the application under section 125 of Cr.P.C. filed by the respondents, was not maintainable. 10. The learned counsel further submitted that in view of the provisions of section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the application under section 125 of Cr.P.C. filed by the respondents, was not maintainable. It is further submitted that once the Muslim Women (Protection of Rights on Divorce) Act, 1986 is introduced and has come in to operation, the divorced wife is not entitled for the application under section 125 of Cr.P.C. If at all the wife wants to file application for maintenance, she can file application under section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. He further invited my attention to the judgment of the full bench of this Court reported in ALL M.R. 2000 (Vol.4) 258. 11. The learned counsel for the respondents submitted that though the said Act has come in to force, the application under section 125 of Cr.P.C. is maintainable. The proceedings under section 125 of Cr.P.C. are of civil nature. She further submitted that the respondents filed application before J.M.F.C. under section 125, unaware of the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986. In her submissions, she stated that the respondents are in serious financial crunch, they do not have any source of livelihood, merely because the application was filed under section 125, and not filed under section 3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the respondents should not be deprived from their claim of maintenance. She further submitted that it is only question of filing the application under section 3 (2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. She further invited my attention to section 5 of the said Act and submitted that either jointly or separately, the respondent can choose either to continue her application under the said Act or she can opt for proceedings under section 125 of Cr.P.C. She further submitted that merely filing application under section 125, directly, would not disentitle her genuine claim of maintenance. Afterall maintenance is to be granted for her survival. Afterall maintenance is to be granted for her survival. The respondents are fighting the battle from 1997 for maintenance and now in 2008, if they are told to go to file the application under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 by setting aside the impugned judgment, it will cause grave hardship to the respondents. Therefore, she prayed that the application filed by the applicant/husband may be rejected. She further invited my attention to the judgment of the Supreme Court in the case of Iqbal Bano V. State of U.P. and Anr. reported in ( 2007 (6) S.C.C. 785 ). She placed reliance on the observations under the said judgment and submitted that the proceedings under section 125 of Cr.P.C. are of civil nature, merely, wife is divorced, she cannot be deprived from her genuine claim for maintenance. She further submitted that even the Constitutional Bench’s judgment of Supreme Court has taken a view that, liability of the Muslim husband to his divorced wife arising under section 3(i)(a) of the Act to pay maintenance, is not confined to the Iddat period. A divorced Muslim women, who did not remarry and who is not able to maintain herself after the Iddat period can proceed as provided under section 4 of the Act against her relative who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law for such divorced woman including her children and parents. If any of her relative being unable to pay maintenance, the Magistrate may direct the State Waqf Board established under the Act to pay maintenance. 12. The learned counsel further submitted that even if the dates of the application filed for maintenance before the J.M.F.C. and divorce taken by the husband as stated by him in his reply are taken in to consideration, the application is filed on 22.2.1997 and the dissolution of marriage/divorce was also came in to effect on the same date, therefore, in her submissions, when both the events i.e. filing of application for maintenance under section 125 and divorce took place on the same date, her status on the said date was not divorced woman and therefore, the application of the respondent No. 1 for maintenance was maintainable. 13. 13. After hearing the learned counsel appearing for the applicant and learned counsel appearing for the respondents, I am of the considered view that in view of the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986, the application filed by the wife for maintenance under section 125 of Cr.P.C. was not maintainable. I have seen the original papers on which divorce proceedings are narrated, are written. The original papers show the date as 21.9.1997. However, divorce has come in to effect on 22.9.1997 and the application is also filed on 22.9.1997. In my considered view, the status of the present applicant/respondent No. 1 on 22.9.1997 was divorcee and therefore, her application under section 125 of Cr.P.C. was not maintainable in view of the provisions of section 3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Full Bench of this Court has taken a view that after commencement of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the application for maintenance under section 125 of Cr.P.C. is not maintainable in case of divorced Muslim woman. I am bound by ratio led down by the Full Bench judgment reported in ALL M.R. 2000 (Vol. 4) 258. I have no hesitation to hold that the order passed by the J.M.F.C., so far it relates to the payment of the maintenance by the husband to the wife, till Iddat period is over, the same order shall be maintained. The Iddad period is only for three months, therefore, so far direction to pay the maintenance for Iddat period was sustainable. 14. It would be open for the respondent wife to file application under section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Needless to say that any delay in filing the said application would be viewed in the light of section 14 of the Limitation Act. Afterall, the Revisional Court found the claim of the respondent/wife for maintenance sustainable. The appropriate Court, before whom the respondent/wife will file the application for maintenance, should consider hardship faced by the respondents and the litigation faced by them from 1997 till the date. 15. In the result, the order dated 21st October, 2000 passed by the learned Sessions Judge, Latur in Criminal Revision Application No. 126/1999 is quashed and set aside. Application is allowed and disposed of accordingly.