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2009 DIGILAW 143 (CAL)

Nurul Hoda v. STATE OF WEST BENGAL

2009-02-24

PARTHA SAKHA DATTA

body2009
Judgment :- (1) I have heard the learned Advocates at a great length. The petitioner before the learned Magistrate filed an application under Section 125 of the Cr.P.C. praying for maintenance. (2) The present petitioner husband took the plea that the petitioner before the Magistrate has been a Talaqi wife in an appropriate proceeding under Section 3/4 Muslim Women (Protection of Rights on Divorce) Act, 1986, and the relief which the Talaqi wife was entitled to had already been granted, as such an application under Section 125, Cr.P.C. by a Talaqi wife was not maintainable. A further plea was taken that the said application under Section 125, Cr.P.C. was a second application, the first one under that section having been dismissed earlier. The learned Magistrate observed that the first application under Section 125, Cr.P.C. was not disposed of on merit and there was no question of invocation of the doctrine of res judicata. I do not find any reason to disagree with the learned Magistrate on this point. (3) In the order impugned dated 30th September, 2008, the learned Magistrate granted interim maintenance upon an application of the wife under Section 125, Cr.P.C. and the main application is yet to be disposed of on merit. Mr. Mukherjee, the learned Advocate raised two-fold points, namely, without application for Section 5 of the Act, 1986, there cannot be filing unilaterally a proceeding under Section 125, Cr.P.C. by a Talaqi wife and since both the parties did not agree to be guided by a proceeding under Section 125, Cr.P.C., the erstwhile wife was not legally competent to take out an application under section 125, Cr.P.C. The second Ground is that since the relief available to a Talaqi wife has already been granted in a proceeding by a competent Court, no subsequent proceeding under Section 125, Cr.P.C. for. maintenance is maintainable. (4) Mr. Ghosh, the learned Counsel appearing for the opposite parties submitted that only a sum of Rs. 3,500/- was paid in connection with a proceeding under Sections 3 and 4 of the Act, 1986 on account of Den Mohor and on account of the provision only during the iddat period. maintenance is maintainable. (4) Mr. Ghosh, the learned Counsel appearing for the opposite parties submitted that only a sum of Rs. 3,500/- was paid in connection with a proceeding under Sections 3 and 4 of the Act, 1986 on account of Den Mohor and on account of the provision only during the iddat period. But the law is well-settled having regard to the decision laid down in Danial Latifi that the Talaqi wife is entitled to future provision for maintenance before the expiry of the iddat period and it is submitted that the learned Magistrates order clearly reveals that the ex-husband did not provide any provision for future maintenance, and as such the wife was competent to take out an application no matter whether nomenclature would be under Section 125, Cr.P.C. or under Section 3/4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. (5) Having perused the Magisterial order, it appears that no provision was made for future maintenance of the petitioner by the learned Magistrate and only a sum of Rs. 3,500/- was paid on account of the provision for iddat period and Den Mohor. Therefore, it cannot be denied that a Talaqi wife is entitled to future provision and maintenance and regard may be had to paragraph 29 of the judgment of the Honble Supreme Court in Danial Latifi which is as follows : -"The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. The wordings of Section 3 of the Act appear to indicate that the husband has to separate and distinct obligations : (1) to make a "reasonable and fair provision" for his divorced wife ; and (2) to provide "maintenance" for her. The emphasis of this section is not on the nature or duration of any such "provision" or "maintenance", but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, "within the iddat period". The emphasis of this section is not on the nature or duration of any such "provision" or "maintenance", but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, "within the iddat period". If the provisions are so read, the Act would exclude from liability for post-iddat period maintenance to a man who has already discharged his obligations of both "reasonable and fair provision" and "maintenance" by paying these amounts in a lump sum to his wife, in addition to having paid his wifes mahr and restored her dowry as per Sections 3(1)(c) and 3(1)(d) of the Act." (6) At paragraph 36 of the judgment their Lordships clarified the position in express terms that the liability of a muslim husband to his divorced wife to pay maintenance is not confined to the Iddat period. To quote their Lordships words: -"While upholding the validity of the Act, we may sum up our conclusions : (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 Section 3(1)(a) of the Act. (2) Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to the iddat period." (7) The second point is whether an application under Section 125, Cr.P.C. could be taken out without recourse to Section 5 of the Act, 1986. It is true that there was no adherence to the provision of Section 5 of the Act, 1986 but this technicality must not stand in the way of a Talaqi wife getting her future provision maintenance in terms of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Even when an application has been mistakenly taken out under Section 125, Cr.P.C., the same may be converted to be an application by the order the learned Magistrate under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Even when an application has been mistakenly taken out under Section 125, Cr.P.C., the same may be converted to be an application by the order the learned Magistrate under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. If the Magistrate finds that in compliance with the law as laid down in the Act, 1986 and in compliance with the judicial pronouncement in Danial Latifi, the husband has not provided any provision and future maintenance, nomenclature of the section of the law is not of any amount of importance. The question is of substantial justice. Therefore, since there has not been any compliance with the provision of Section 5 of the Act, 1986, the law does not debar the Magistrate to deem the application to be one under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, particularly when the Talaqi wife and the husband has not joined in an application under Section 5 of the Act, 1986. (8) Now, the question arises whether provision of Sections 3 and 4 of the Muslim Women (Protection and Rights on Divorce) Act, 1986 is consistent with awarding maintenance monthwise for an individual period of time. We have noticed that in paragraph 29 of the judgment in Danial Latifi their Lordships said that "if the provisions are so read, the Act would exclude from liability for post Iddat period maintenance to a man who has already discharged his obligation of both "reasonable and fair provision" and "maintenance" by paying these amounts in a lumpsum to his wife. Therefore, order of monthly interim maintenance is not consistent with the provisions of 3 and 4 of the said Act, 1986 and the order of the learned Magistrate deserves to be modified accordingly by setting aside only that portion of the order which I do in this application. (9) Accordingly, I dispose of this application with the direction to the learned Magistrate to treat this application to be one under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and proceed to dispose of the application in accordance with law upon hearing the parties. (10) It is made clear that I have not entered case of either of the parties. The learned Magistrate is directed to decide the case upon evidence, oral and documentary. (10) It is made clear that I have not entered case of either of the parties. The learned Magistrate is directed to decide the case upon evidence, oral and documentary. (11) Let urgent xerox certified copy of this order, if applied, for, be furnished to the learned Advocates appearing for the parties on priority basis.