Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 486 (ALL)

ZUNAIDA BEGUM v. MEHFUZ AHMED

2010-02-05

JAYA SHREE TIWARI

body2010
JAYSHREE TIWARI, J. ( 1 ) HEARD learned counsel for the revisionist as well as learned counsel for the opposite party. ( 2 ) IN short the facts of the case are that the applicant was married according to the Muslim Law 10 years before in 1967 and was performing the duties of the wife and be got a daughter named Sana. Three years back, the husband left her to her parents house stated that he does not know cooking food and had also beaten her and stated that if she will left her house she will be killed. She was left to her parents house of the husband since then she was living with her parents and the opposite party/husband did not give her a single panny for her maintenance. The revisionist was illiterate and pardanaseen lady unable to maintain herself. At the time of her divorce given by the husband, she was pregnant and as she is entitled to get the amount of maintenance as claimed. ( 3 ) THE opponent admitted the marriage but showed ignorance about the birth of second child. He accepted only birth of daughter sana. Since the applicant-revisionist was from a prosperous house so she always used to suppress and control him and used to misbehave with inmates of his house and it is stated that she left the house of the husband and despite being called to come was not prepared to come and she asked for divorce. At this stage, the husband has given her divorce according to the Muslim Law. Since she has obtained divorce according to her own will and is living well at her parents house she is not entitled to maintenance. ( 4 ) UPON hearing the parties, the Court concerned passed an order allowing three months maintenance of Rs. 500/- to the Revisionist-wife from 29. 1. 1997 to 28. 1. 2015 Rs. 500/- to child from the date of his birth i. e. 29. 1. 1997 to 28. 1. 2015. Against this the order the present revision has been filed. ( 5 ) THUS, the present revision has been filed against the order dated 7. 6. 2000 passed by the Judge Family Court, Allahabad whereby denying the maintenance to the wife beyond the period from 4. 12. 1996 to 3. 3. 1997. 1. 1997 to 28. 1. 2015. Against this the order the present revision has been filed. ( 5 ) THUS, the present revision has been filed against the order dated 7. 6. 2000 passed by the Judge Family Court, Allahabad whereby denying the maintenance to the wife beyond the period from 4. 12. 1996 to 3. 3. 1997. It is contended that even according to the latest decision of the Apex Court even after the period of iddat dower or Mehar is entitled for the grant of maintenance under Section 125 cr. P. C. ( 6 ) NOBODY has appeared today though the objections have been filed on behalf of the respondent, in which it is submitted that the respondent is regularly paying maintenance to the child as awarded by the Court and the learned tower court has rightly awarded maintenance to the petitioner for the period upto the extent with that, because no marriage now subsists in between the parties. ( 7 ) I have gone through the judgment and order passed by the learned lower court. A perusal of the judgment shows that no specific finding has been given by the learned lower Court for not allowing the maintenance application of the applicant revisionist as prayed and also no specific finding has been recorded for awarding the maintenance to her for the specific period of three months. ( 8 ) THE learned counsel for the applicant referred the case law reported in 2003 (1) AWC 128 (SC), Khatoon Nisav. State of U. P. and others, wherein it has been held by the Apex Court that the Apex Court in para 10 of the judgment : "the validity of the provisions of the Act was for consideration before the constitution Bench in the case of Denial Latifi and another v. Union of India, (2001) 7 SCC 740 . In the said case, by reading down the provisions of the act, the validity of the Act has been upheld and it has been observed that under the Act itself when parties agree the provisions of Section 125, Cr. P. C. could be invoked as contained in Section 5 of the Act and even otherwise, the magistrate under the Act has the power to grant maintenance in favour of the divorced woman, and the parameters and considerations are the same as those in Section 125 Cr. P. C. could be invoked as contained in Section 5 of the Act and even otherwise, the magistrate under the Act has the power to grant maintenance in favour of the divorced woman, and the parameters and considerations are the same as those in Section 125 Cr. P. C. It is undoubtedly true that in the case in hand, section 5 of the Act has not been invoked. Necessarily, therefore, the magistrate has exercised his jurisdiction under Section 125 Cr. P. C. But, since the Magistrate retains the power of granting maintenance in view of the constitution Bench decision in Danial Latifis case (supra) under the Act and since the parameters for exercise of that power are the same as those contained in Section 125 Cr. P. C. We see no ground to interfere with the orders of the Magistrate granting maintenance in favour of a divorced Muslim Woman. " ( 9 ) IN yet another case reported in (2001) 7 SCC 740 : "muslim Women (Protection of Rights on Divorce) Act, 1986-Held, valid on basis of construction bringing it within constitutional principles-"reasonable and fair provisions and maintenance" under Section 3 (1 ) (a) is not limited for the iddat period; it extends for the entire life of divorced wife, unless she remarries-Clarified that the emphasis in the section is not on the nature or duration of such "provision" or "maintenance", but rather on the time "within" which the arrangement for their payment should be finalised and executed-To construe provisions of the Act as less beneficial than provisions of Chapter ix Crpc and hold husband liable to pay maintenance only for the iddat period would result in unreasonable discrimination against divorced Muslim women and would render the Act violative of Articles 14, 15 and 21-Petitions challenging validity of Act dismissed-Interpretation of Statutes-Basic rules-Determination of legislative intent-Applied-Constitution of India-Articles 14 and 15-Held, not violated by Muslim Women (Protection of Rights on divorce) Act, 1986 as interpreted by Supreme Court. " It is also held in para 20 of the judgment: in interpreting the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated, both economically and socially and women are assigned, invariably, a dependent role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body and her investment in the marriage is her entire life - a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner we could compensate her so far as emotional fracture or loss of investment is concerned there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief which partakes basic human rights to secure gender and social justice is universally recognised by persons belonging to all religions and it is difficult to perceive that Muslim law intends to provide a different kind of responsibility by passing on the same to those unconnected with the matrimonial life such as the heirs who were likely to inherit the property from her or the Wakf Boards. Such an approach appears to us to be a kind of distortion of the social facts. Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or benefits or national, sectarian, racial or communal constraints. Bearing this aspect in mind, we have to interpret the provisions of the Act in question. ( 10 ) ON the basis of the aforesaid case, it is contended on behalf of the learned counsel for the applicant revisionist that refusal to grant maintenance to the wife in this writ petition by the Court concerned is erroneous exercise on his part. The contention appears to be genuine. Accordingly, it seems expedient that the order dated 7. ( 10 ) ON the basis of the aforesaid case, it is contended on behalf of the learned counsel for the applicant revisionist that refusal to grant maintenance to the wife in this writ petition by the Court concerned is erroneous exercise on his part. The contention appears to be genuine. Accordingly, it seems expedient that the order dated 7. 6. 2000 be set aside and the case be remanded back to the Court concerned for reconsideration taking into account the case law of the Apex Court as cited above. ( 11 ) THE Revision is allowed and the order dated 7. 6. 2000 is quashed. The learned lower Court is directed to hear both the parties and also consider the case in accordance with law as referred above and then pass a reasonable order within six months from the date of production of a certified copy of this order is filed before the Court concerned. .