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Karnataka High Court · body

2011 DIGILAW 154 (KAR)

Mushtaq Nayak, Bangalore v. Salma Praveen, Mysore

2011-02-07

JAWAD RAHIM

body2011
Judgment 1. Both these petitions under the provision of Section 19(4) of Family Courts Act are directed against the order dated 30.9.2009 in C.Misc.308/02 on the file of Judge, Family Court, Mysore. 2. RPFC.60/09 is by the husband questioning the direction in the impugned order to pay maintenance to his wife-Dr. Salma Parveen. 3. RPFC.15/10 is by the wife seeking enhancement of maintenance ordered. Necessarily both the petitions are clubbed and taken up for final disposal. 4. The contextual acts are: a) Dr. Salma Parveen married Mushtaq Nayak according to Islamic rites and customs and both commenced matrimonial life. Within a short period, she filed C.Misc.308/02 alleging cruelty, harassment by her husband. On the plea of willful neglect and deprival of basic necessities in life, she sought maintenance from her husband under the provision of Section 125, Cr.P.C. In support of her claim she alleged having qualified as a medical practitioner, she was aspiring to pursue further education and at that juncture, Mushtaq Nayak and his parents approached her parents representing to them that he is a well qualified engineer, good natured with all virtues and would have been a befitting husband for her. All such representations were believed by her parents and she was compelled to marry him, shattering all hopes. It was represented to them that he had secured an enviable position as an engineer in California, U.S.A. with lucrative emoluments and perks. Therefore, she had no choice but to succumb to her parents’ compulsion and the Nikah was performed on 13.12.2001. b) Even before solemnization of marriage, to the dismay of her parents, Mushtaq Nayak and his parents demanded and received Rs.2,00,000/- in cash and gold articles valued at more than Rs.2,00,000/-. Her parents had to yield to the demand as by then the proposal of marriage had become public and failure would jeopardize the family’s repute. In such circumstances, the marriage was solemnized on 13.12.2001 incurring an expenditure of Rs.6,50,000/-. c) She entered matrimony and lived in the house occupied by Mushtaq Nayak and his parents and sister. She hoped matrimony would be a bliss, but soon realized it was not so. He was adamant, ill-mannered and had no intention to establish a family. In such circumstances, the marriage was solemnized on 13.12.2001 incurring an expenditure of Rs.6,50,000/-. c) She entered matrimony and lived in the house occupied by Mushtaq Nayak and his parents and sister. She hoped matrimony would be a bliss, but soon realized it was not so. He was adamant, ill-mannered and had no intention to establish a family. He and his parents had a sinister design to extract money in cash as dowry and in this regard, his spinster sister indulged in mental and physical torture; they commanded her to work, depriving her of basic needs in life. He was a puppet in the hands of his mother and other family members and at their instance, demanded additional dowry which her father, being a Govt. servant, could not comply. d) During this period, to her utter shock, she found while living in U.S.A, he had already contracted marriage with another woman, but claimed he had obtained divorce. The fact of prior marriage was not only suppressed but she had reason to believe he still had the said woman as his wife. When she questioned him, she was chased out of the house taking away all gold ornaments which was later misappropriated. Finding fault with her in questioning his earlier marriage, he and his family members aggravated torturous conduct and cruelty which was beyond her tolerance. Having no other option, she reported the matter to the jurisdictional police who registered it in FIR 208/02, and investigation culminated in filling of charge sheet in C.C.2481/02 arraigning him and his family members for the offences punishable under Section 498-A, I.P.C. and offences punishable under the Dowry Prohibition Act, which case is pending before the 11th ACMM, Bangalore. e) Narrating several other circumstances showing life was impossible and the marriage was not workable, and also on the plea that she is incapable of maintaining herself, she sought maintenance under Section 125, Cr.P.C. f) On being summoned, the husband resisted the proceedings through a detailed counter. He alleged her father who was holding a low-paid Govt. job, had approached him to marry his daughter and to take care of her further education. He believed her to be a decent woman who will be a home-maker and accepted the proposal. He denied he had demanded or received Rs.2,00,000/- as dowry or other articles of the same value. He alleged her father who was holding a low-paid Govt. job, had approached him to marry his daughter and to take care of her further education. He believed her to be a decent woman who will be a home-maker and accepted the proposal. He denied he had demanded or received Rs.2,00,000/- as dowry or other articles of the same value. His main contention was, because of a false report lodged by her and her father, he was subjected to malicious prosecution and his passport was impounded, thereby jeopardizing his career prospects and rendering him unemployed. Because of impounding of his passport, he could not leave the country and thus lost his assignment. He has no income for his own sustenance and is incapable of making any payment. He further alleged even if he secures a job, she will not be entitled as she is herself a well qualified medical practitioner gainfully employed in Vikram Hospital, Mysore. Thus, she was financially in a better position compared to him and hence, petition under Section 125, Cr.P.C. was not maintainable. g) In support of the material propositions in the pleadings, parties went to trial before the jurisdictional magistrate during which the wife-Dr. Salma Parveen tendered evidence as PW1 and placed reliance on 27 documents, while her husband-Mushtaq Nayak tendered evidence as RW1 and relied on 3 documents. It is also material to note that during the pendency of the proceedings and in her evidence, she claimed to have been divorced by her husband, pronouncing Talaq permissible under the Mohammedan Law. Though she alleged it was one more ground for maintenance, the husband denied having divorced her. h) The learned trial judge considering the contentions of both sides and the evidence on record, accepted her plea that she was divorced by her husband and in his wisdom while holding she was entitled to maintenance, fixed it at Rs.10,000/- p.m. to be paid from 22.11.2002, date of the petition till 14.7.2004 (date of Talaq) and for the period of Iddat, i.e. 3 lunar months at the same rate. i) The husband is aggrieved by the order to pay maintenance at Rs.10,000/- p.m., while the wife is aggrieved by the order as future maintenance has been denied. 5. Learned counsel appearing for the wife in RPFC.15/10 has questioned the direction of the learned judge restricting maintenance for the period of Iddat. i) The husband is aggrieved by the order to pay maintenance at Rs.10,000/- p.m., while the wife is aggrieved by the order as future maintenance has been denied. 5. Learned counsel appearing for the wife in RPFC.15/10 has questioned the direction of the learned judge restricting maintenance for the period of Iddat. He would contend even though the petitioner-wife claimed she was divorced by her husband, yet her claim for maintenance under Section 125, Cr.P.C. was maintainable and she was entitled to future maintenance till her re-marriage. Restriction in the order to pay maintenance upto the date of divorce and thereafter for 3 lunar months during the period of Iddat is described as unjustified resulting in deprival of the right of maintenance guaranteed to her under Section 125, Cr.P.C. He gains citational support to his contentions relying on the following decisions: 1) DANIAL LATIFI & ANOTHER .vs. UNION OF INDIA ( 2001 (7) SCC 740 ), 2) ABDUL MIA MOHAMED .vs. (AIR 2010 NOC 807) and 3) SHABANA BANO .vs. IMRAN KHAN ( 2010 (1) SCC 666 ). 6. In negation of all contentions urged by the respondent-wife, learned counsel for the husband would contend the allegations made in the petition were factually incorrect and false. The husband had indulged in no act of violence, cruelty or harassment and had not demanded or received dowry. Petitioner-wife was a woman of independent nature, arrogant, non-co-operative and had no intention to establish a matrimonial home. She denied conjugal rights to her husband and indulged in acts rendering the marriage a failure. She left no stone unturned to see that his career prospects are jeopardized and he is rendered unemployed. She was responsible for the failure of the marriage which he pleads was at the instigation of her father and other family members. The husband on his part was affectionate, caring and did all that was possible to work out a successful marriage. He denied his client had divorced her by pronouncing Talaq. The plea, according to him, is one more circumstance to show her intention to severe all marriage ties with him. He would further submit that allegation made against his family members were factually incorrect. 7. Referring to police action initiated by her, it was contended that it has resulted in preventing him from going abroad to continue his assignment, consequent to which he has no means to sustain himself. 8. He would further submit that allegation made against his family members were factually incorrect. 7. Referring to police action initiated by her, it was contended that it has resulted in preventing him from going abroad to continue his assignment, consequent to which he has no means to sustain himself. 8. Alternatively it was urged that since she herself has claimed to have been divorced by pronouncement of Talaq, action under Section 125, Cr.P.C. was not permissible and she was not entitled to any relief beyond the Iddat period as parties are governed by Mohammedan Law. 9. Referring to what transpired after the marriage, he submitted there was no incident or act of violence and therefore the claim of the wife was untenable. Learned counsel has also raised technical objection regarding maintainability of the petition under Section 125, Cr.P.C. referring to the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986. 10. Keeping in mind what is urged by both sides, I have examined the records in supplementation thereto. 11. Matrimonial relationship between the parties and tying on nuptial knot in term of Islamic rites and customs is not in dispute. It is not in dispute during the period the proposal was mooted and after solemnization of the marriage, the husband was working as an engineer in U.S.A. drawing substantial salary and had a high standard of living. Both lived together, may be for a short period, but they consummated the marriage. Admittedly the wife has obtained a bachelor’s degree in medicine and was pursuing higher education. She returned to the country while the husband was still abroad. The evidence on record reveals the couple turned inimical towards each other while they were living apart and the wife initiated prosecution against him and his relatives. 12. From the allegations and counter-allegations, it could be noticed the relationship between them was strained by undesirable interference by the respective family members. While the husband alleges father-in-law to be the cause for leading his wife astray and in initiating prosecution against him and keeping her away from his company, the wife alleges similar undesirable interference by his spinster sister and other family members. 13. Be that as it may, unfortunately the couple parted ways, and are living apart which actually aggravated ill-feeling rather than diminishing it. 13. Be that as it may, unfortunately the couple parted ways, and are living apart which actually aggravated ill-feeling rather than diminishing it. In this fact situation, the learned judge has formulated certain points for consideration and applying the evidence tendered by the parties, accepted the wife’s plea that she was deprived maintenance by her husband and that he had divorced her. Noticing she had suffered physical onslaught as evidenced by Ex.P24, OPD slip and extract of medical register from Lady Curzon Hospital showing her treatment, the learned judge held living with him was unsafe for her. He also took into consideration prosecution of the husband in C.C.9/04 and the fact that she (wife) had filed O.S.49/02 for restitution of conjugal rights and a similar suit in O.S.42/06. However, the learned judge held withdrawal of that case by the wife on 20.9.2004 on the plea she was divorced was indicative of severance of marital relations between the parties. Thus, in this fact situation, the learned trial judge granted her maintenance till the date of alleged divorce, quantifying it at Rs.10,000/- p.m. and thereafter for 3 lunar moths at the same rate. 14. The contention of the learned counsel for the wife is, restricting maintenance only for 3 lunar months, i.e. Iddat period was unjustifiable denial of future maintenance to her. Case laws referred to above are used in support of such plea. 15. The contentions of both sides require the following points to be framed for answer: 1) In view of the settled position of law that even a divorced Muslim woman is entitled to maintenance beyond the period of Idaat till she re-marries, should not her claim be considered under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, instead of allowing her to pursue action under Section 125, Cr.P.C.? 2) Is not the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, more beneficial 3) Was Dr. Salma Parveen (wife) incapable of maintaining herself? 4) Has the husband despite being capable of maintaining her, failed and neglected to maintain her? 16. In the case of DANIAL LATIFI & ANOTHER .vs. UNION OF INDIA ( 2001 (7) SCC 740 ), the Apex Court deciding the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, held thus: “26. 4) Has the husband despite being capable of maintaining her, failed and neglected to maintain her? 16. In the case of DANIAL LATIFI & ANOTHER .vs. UNION OF INDIA ( 2001 (7) SCC 740 ), the Apex Court deciding the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, held thus: “26. A reading of the act will indicate that it codifies and regulates the obligations due to a Muslim woman divorcee by putting them outside the scope of Section 125 Cr.P.C. as the “divorced woman” as been defined as “Muslim woman who was married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with the Muslim law”. But the Act does not apply to a Muslim woman whose marriage is solemnized wither under the Indian Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved wither under the Indian Divorce Act, 1869 or the Indian Special Marriage Act, 1954. The Act does not apply to the deserted and separated Muslim wives. The maintenance under the Act is to be paid by the husband for the duration of the iddat period and this obligation does not extend beyond the period of iddat. Once the relationship with the husband has come to an end with the expiry of the iddat period, the responsibility devolves upon the relatives of the divorcee. The Act follows Muslim personal law in determining which relatives are responsible under which circumstances. If there are no relatives, or no relatives are able to support the divorcee, then the court an order the State Wakf Boards to pay the maintenance. 27. Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her husband, a reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under Section 3(2) the Muslim divorcee can file an application before a Magistrate if the former husband had not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered the properties given to her before or at the time of marriage by her relatives, or friends, or the husband or any of his relatives or friends. Section 3(3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may think fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of her former husband. The judicial enforceability of the Muslim divorced woman’s right to provision and maintenance under Section 3(1)(a) of the Act has been subjected to the condition of the husband having sufficient means which strictly speaking, is contrary to the principles of Muslim law as the liability pay maintenance during the iddat period is unconditional and cannot be circumscribed by the financial means of the husband. The purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat. 28. A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word “provision” indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. The expression “within” should be read as “during” or “for” and this cannot be construed contrary to their meaning as the word “within” would mean “on or before”, “not beyond” and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere has parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.” Thus, the Constitutional Bench of the Apex Court upheld the validity or vires of the Act declaring that a woman who is divorced no doubt would be governed by the provisions of the Act, but it should not be construed as less beneficiary that the provisions of Chapter IX, Cr.P.C. Consequently, it held, ‘to hold the husband is liable to pay maintenance only for Iddat period would result in unreasonable discrimination against divorced Muslim women and would render the Act violative of Articles 14, 15 and 21 of the Constitution.’ It further held ‘Section 3 confers a right enforceable against the husband for maintenance even after divorce, unless reasonable and fair provision is made.’ 17. In other words, the Act was interpreted to mean unless a reasonable provision is made for future maintenance, a woman will be entitled to an order of maintenance even after the Iddat and the right is not confined only to Iddat period. Finally, the Apex Court upholding the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, held thus: “36. While upholding the validity of the Act, we may sum up our conclusions: (1) A Muslim husband is liable to make reasonable and fair provisions 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. (3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the 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 on her death according to Muslim law from such divorced woman including her children and parents. 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. 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. (4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.” 18. In the case of IQBAL BANO .vs. STATE OF U.P. AND ANOTHER ( 2007 (6) SCC 785 ), the Apex Court re-examining the scope of Section 125, Cr.P.C. with reference to the right of a Muslim woman and taking into consideration the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, held ‘the Act applies to a divorced Muslim woman only and not to a Muslim woman who is not divorced or whose divorce is in question.’ 19. Furthermore, it held ‘proceedings under Section 125, Cr.P.C. and the proceedings under the Act of 1986 are tried by the same court and taking into consideration the beneficial nature of the 1986 Act, even if a divorced woman applies under Section 125, Cr.P.C., it is open to the court to try it as an application under the Muslim Women (Protection of Rights on Divorce) Act, 1986.’ 20. That view is further reiterated by a co-ordinate Bench of the Apex Court in the case of SHABANA BANO .vs. IMRAN KHAN ( 2010 (1) SCC 666 ) wherein taking into consideration the fact situation that a divorced Muslim woman having filed an application under Section 125, Cr.P.C., would continue such proceedings after her divorce, the Apex Court held ’till such applicant-woman does not get re-married, her claim for maintenance is maintainable irrespective of the absence of any application under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.’ Her entitlement continues even in post Iddat period as long as she does not remarry’. 21. What emanates from the dictum in the cases above is, a divorced Muslim woman can still maintain a petition under Section 125, Cr.P.C. claiming maintenance after divorce from her husband. There is, therefore, legal permissibility for proceeding with a petition under Section 125, Cr.P.C. by a Muslim divorced woman. But the question is, though such a course is permissible, is it in her interest? There is, therefore, legal permissibility for proceeding with a petition under Section 125, Cr.P.C. by a Muslim divorced woman. But the question is, though such a course is permissible, is it in her interest? Necessarily the object with which the benevolent provision of Section 125, Cr.P.C. was engrafted in the Code of Criminal Procedure and the object behind the Muslim Women (Protection of Rights on Divorce) Act, 1986, shall not escape our notice. 22. The beneficial object and rationale of Section 125, Cr.P.C. is to mitigate the suffering of a women in a situation where she is likely to be driven to destitution or vagrancy undoubtedly in furtherance of social justice and to provide for her survival with dignity so far as money could do. To achieve such object, mere rendition of orders declaring her entitlement and quantifying the amount towards maintenance is not enough. We should be concerned with the end result. Cases are not unknown where just orders passed under Section 125, Cr.P.C. granting maintenance are frustrated either due to derelictory tactics by the person against whom the said order is passed, or by reason of his financial incapacity to comply with the order, or other disability. In such cases, obtaining an order would be subjective satisfaction of the woman because of ineffective mode of enforcement as provided under sub-section (3) of Section 125, Cr.P.C. which reads thus: “125. In such cases, obtaining an order would be subjective satisfaction of the woman because of ineffective mode of enforcement as provided under sub-section (3) of Section 125, Cr.P.C. which reads thus: “125. Order for maintenance of wives, children and parents (1) … (2) … (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of nay amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation-If a husband has contacted marriage with another woman of keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.” As could be seen from the provision, on failure to comply with the order, magistrate may for every breach, issue warrant for levying the amount due in the manner provided for levying fines and may sentence such person for the whole or in part of each month’s allowance of maintenance or interim maintenance and may sentence him to imprisonment for a term which may extend to one month or until payment. The procedure so engrafted for enforcing the order no doubt contemplates penal action against the defaulter permitting his imprisonment for a term which may extend to one month or until payment if sooner made, yet it does not achieve the object to help the woman to recover the quantified amount early or expeditiously. 23. The procedure so engrafted for enforcing the order no doubt contemplates penal action against the defaulter permitting his imprisonment for a term which may extend to one month or until payment if sooner made, yet it does not achieve the object to help the woman to recover the quantified amount early or expeditiously. 23. Besides, such penal action is permissible if he fails to show sufficient cause. In other words, not only the procedure prescribed in cumbersome, but does not aid effectively the woman in securing monetary benefit flowing from the order. The permissibility of issuing warrant for levying the amount due in the manner provided for levying fine also involves cumbersome process, and as experience goes, recovery proceedings is hardly successful. In the resultant position, though a proceeding under Section 125, Cr.P.C. may culminate in awarding maintenance to the woman, because of ineffective procedure prescribed under sub-section (3) of Section 125, Cr.P.C., in circumstances like death or financial incapacity of the person against whom the order is passed, or insolvency or detention of such person as a consequence of conviction; or physical disability or loss of avocation; or delay or difficulty in securing the presence of the person, action seeking maintenance does not reach a logical end. Thus, the coercive process provided becomes ineffective, rendering the order illusory. 24. In comparison to the relief granted under Section 125, Cr.P.C., the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, make it more objective and result-oriented. Section 3 of the said Act provides the following reliefs: 3. Mahr or other properties of Muslim woman to be given to her at the time of divorce. 24. In comparison to the relief granted under Section 125, Cr.P.C., the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, make it more objective and result-oriented. Section 3 of the said Act provides the following reliefs: 3. Mahr or other properties of Muslim woman to be given to her at the time of divorce. (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to: (a) a reasonable and fair provision and maintenance to be paid within the Iddat period by her former husband, (b) where she herself maintains children born either before or after the divorce, a reasonable and fair provision and maintenance to be paid by her former husband for two years from the respective date of birth of her children, (c) amount equal to the sum of Mahr/dower agreed to be paid to her at the time of marriage or any time thereafter according to Muslim law; and (d) all properties given to her before, at the time and after marriage by her relatives, husband or any relative of the husband or any relatives of the husband or his friends. (2) Where a reasonable and fair provision and maintenance or amount of Mahr/dower had not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to the divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to the magistrate for an order for payment of such provision and maintenance, Mahr/dower or the delivery of properties, as the case may be. (3) …. It must further be noticed that there is an in-built safeguard by way of alternate remedy provided under Section 4 of the said Act to ensure she gets future maintenance in case such order cannot be passed against the former husband under Section 3. (3) …. It must further be noticed that there is an in-built safeguard by way of alternate remedy provided under Section 4 of the said Act to ensure she gets future maintenance in case such order cannot be passed against the former husband under Section 3. Section 4 reads thus: ‘Notwithstanding anything contained in the foregoing provisions of this Act or any other law for the time being in force, where a 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 or 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 this 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.’ Sub-section (2) of Section 4 creates a statutory obligation on the State Wakf Board established under Section 9 of the Wakf Act, 1954, or under any other law, functioning in the area where the woman resides, to pay such maintenance as may be determined by the magistrate under sub-section (1). It reads thus: ‘Where a divorced woman is unable to maintain herself and she has no relative as mentioned in sub-section (1) or such relatives or any of them have not enough means to pay maintenance ordered by the magistrate or other 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 proviso to sub-section (1), the magistrate may, by order direct the State Wakf Board established under Section 9 of the Wakf Act, 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.’ 25. Therefore, in case of her relatives not being in a position to pay the amount of maintenance, her entitlement to recover it from the Wakf Board functioning in that area ensures realization of the benefit of the order of maintenance and thus, undoubtedly ensures enforcement of the order, preventing the woman being driven to destitution or vagrancy. Despite such beneficial provisions in the Muslim Women (Protection of Rights on Divorce) Act, 1986, still divorced Muslim women pursue action under Section 125, Cr.P.C. and shy from invoking the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986. 26. Thus, the conclusion would be, though there is legal permissibility for a divorced Muslim woman to maintain a petition under Section 125, Cr.P.C., and the magistrate would be justified in granting such relief, there is no reason why they should not be asked to proceed to seek relief under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This view is fortified from the decision of the Apex Court in the case of IQBAL BANO (supra). Accordingly, the first point is answered. 27. Applying the settled legal position, it has to be held that the impugned order restricting grant of maintenance to Salma Parveen only for the period of Iddat is unsustainable and it is thus set aside. 28. Accordingly, the first point is answered. 27. Applying the settled legal position, it has to be held that the impugned order restricting grant of maintenance to Salma Parveen only for the period of Iddat is unsustainable and it is thus set aside. 28. On merits it is to be seen that while the wife alleges she is incapable of maintaining herself, the husband assertively contends she is gainfully employed in Vikram Hospital, Mysore, and has secured assignments at New Delhi, which augments her income. His further contention is, because of action for his prosecution for various offences under the Indian Penal Code, his passport is impounded and he is unable to leave the country which has frustrated her career prospects. While the wife contends he is affluent and draws a lucrative salary, so is his contention against her. But the evidence placed before the trial court falls short of legal proof to accept their contentions. On behalf of the wife, it is submitted she is pursuing post graduation course and has not yet secured permanent employment to have a stable earning. She is still shown as a student which fact he disputes. Similarly her contention that he is employed in the country itself with lucrative salary is not convincingly established. 29. As I have taken the view that the impugned order restricting maintenance to the wife for the period of Iddat is not justified and as the husband is also questioning it, it is necessary to set aside the impugned order and remand the case back to the trial court for de novo consideration. 30. In the result both the petitions, viz., R.P.F.C.60/09 and R.P.F.C.15/10 are allowed. The matter is remanded to the trial court with the following directions: I) To record a finding as to whether Salma Parveen-wife proves she has been neglected by her husband to be maintained and whether she is incapable of maintaining herself; II) To record a finding as to whether Salma Parveen-wife has been divorced by her husband on 14.7.2004 as alleged, and if so, whether she is entitled for maintenance as per Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986; III) To enquire as to whether Mushtaq Nayak-husband is gainfully employed and if so, his income. In case he is found to be incapable of making payment, to hold an enquiry under Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, to decide whether the relatives of Salma Parveen can maintain her. If it is shown that they are not capable of maintaining her, then to pass appropriate orders as provided under Section 4(2) of the said Act, directing the Wakf Board to pay the amount of maintenance that may be quantified. IV) The petitioner-wife shall either amend the petition or file a memorandum to raise grounds in support of the relief under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. V) Out of the sum of Rs.2,10,000/-deposited by the husband in terms of the order, Salma Parveen-wife is permitted to draw Rs.30,000/-being maintenance for 3 months. During the pendency of the proceedings, the magistrate shall pass an order granting interim maintenance, subject to the final order that maybe passed. VI) Petitions are disposed of in terms of this order. No order as to costs. Registry is directed to send a copy of this order to the Principal Judge of Family Courts throughout the State of Karnataka, and also to the Chairman, Karnataka Board of Wakfs, Bangalore.