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2012 DIGILAW 1366 (GAU)

ALIMA BEGUM v. ABDUL KADIR

2012-12-21

S.TALAPATRA

body2012
JUDGMENT : S. Talapatra, J. To question the legality of the judgment and order dated 5.8.2009 passed by the Judge, Family Court, Kailashahar, North Tripura in Criminal Misc. Case No. 35/2009, this petition under section 397/401 of the Cr.PC has been preferred. 2. By the impugned judgment and order, the maintenance under section 125 of the Cr.PC as sought from the respondent has been refused holding that the respondent has divorced the petitioner by pronouncing Talak and after divorce, the petitioner is not entitled to get any maintenance, as per provisions of section 125 of the Cr.PC. But, her minor daughter, namely Must. Nazma Begum, is entitled to get maintenance from her father, the respondent in as much as the said minor daughter has been residing with the petitioner. 3. The challenge is founded and focused on : (1) whether there is any legal divorce as per the Islamic tenets and (2) whether the divorced woman is absolutely dis-entitled from maintenance under section 125 of the Cr.PC in as much as the Muslim Women (Protection of Rights on Divorce) Act, 1985 has come into force. 4. For appreciation of the challenge, it is required that the essential facts are introduced at the threshold. The petitioner married the respondent on 2.10.1999 as per the Shariat laws by executing a Kabil nama. Thereafter, both the petitioner and the respondent lived their conjugal life peacefully for about six years and in the wedlock, a female child was born. On 23.1.2006, the respondent had assaulted the petitioner and she was forced to take shelter in her father's house at Irani. Since then, she has been residing in the shelter of her father with her minor child. Even though the respondent has got sufficient means, he has refused to maintain the petitioner and the said minor child. According to the petitioner, the respondent earns not less than Rs. 15,000 per month whereas, the petitioner has no means at all. When the petitioner and her minor daughter had rolled to the brink of destitution, the petitioner approached the family court for saving her from vagrancy. 5. The allegations of the petitioner were seriously resisted by the respondent. In response, he alleged that the petitioner left her matrimonial home on 9.5.2006 with one Askar Ali for leading adulterous life. When the petitioner left the matrimonial home, the respondent had lodged a complaint to the Irani Outpost. 5. The allegations of the petitioner were seriously resisted by the respondent. In response, he alleged that the petitioner left her matrimonial home on 9.5.2006 with one Askar Ali for leading adulterous life. When the petitioner left the matrimonial home, the respondent had lodged a complaint to the Irani Outpost. He has her stated in the objection that on 10.5.2006 the respondent pronounced Talak to the petitioner as per Islamic law for dissolving the marriage. It has been stated in the written objection that there was some settlement regarding payment by the parties. As such, the respondent contended vehemently that the petitioner has become dis-entitled to get any maintenance in view of the provision of section 125(4) of the Cr.PC. 6. In the course of adjudication, the Judge, Family Court, Kailashahar allowed the parties to lead their evidence for substantiation. 7. The petitioner (PW 1) has stated in tune with what she had stated in the petition under section 125 of the Cr.PC. As PW 2, Md. Siddak Ali, the father of the petitioner has stated corroborating the allegations of the petitioner. He has categorically stated that the petitioner was seriously assaulted by the respondent and had to take shelter in his house with her minor child. The respondent did not pay any maintenance. PW 2 did not state about 'Talak'. Md. Anhar Miah (PW 3) has stated that he had seen the petitioner residing in the house of her father for last two and half years. He heard from PW 2 that Abdul Kadir, the respondent herein, assaulted his daughter Alima and drove out her from the matrimonial borne. PW 3 has stated that respondent is a tailor and running his business from Babur-Bazar. PW 4 a neighbour, namely Md. Abdul Malik, has stated that the petitioner and the respondent were living as the husband and wife and in the wedlock, a female child was born. He came to learn from PW 2 that her daughter was asked to bring a huge amount from the paternal home, but, the demand could not be met. On that plea, the respondent assaulted her and drove out from the matrimonial home. One Nojib Ali (PW 5) has corroborated the testimonies of the other PWs. 8. For rebuttal, the respondent has examined himself as OPW 1 when he denied demand for a sum of Rs. 25,000 as alleged. On that plea, the respondent assaulted her and drove out from the matrimonial home. One Nojib Ali (PW 5) has corroborated the testimonies of the other PWs. 8. For rebuttal, the respondent has examined himself as OPW 1 when he denied demand for a sum of Rs. 25,000 as alleged. He has further stated that the petitioner with their minor daughter left the matrimonial home with one Askar Ali and stayed in the house of Askar Ali. When the respondent rushed to the house of Askar Aii, he was assaulted by Askar. One local member Wahid Ali advised the respondent to lodge a complaint with the police and accordingly, he had lodged a complaint in the Irani Police Outpost in regard to his wife's leaving his house with one Askar Ali. There was a 'Salish'. According to the respondent, in the said Salish, the petitioner had admitted that she had 'relation' with Askar Ali for last five years and she would marry him. The respondent has further stated that in the Salish, he pronounced Talak to give his wife, divorce, as per the Shariat laws. After the Salish, the petitioner went to her paternal house at the instance of her father and brother. He has admitted that he had not returned the mehn mentioned in the 'Kabilnama' after giving her Talak. His wife is not entitled to get any maintenance from him since he has given Talak. One Md. Wahid Ali (OPW 2) who advised the respondent to lodge a complaint in the police station has narrated a completely new story what the respondent did not state. He stated that the petitioner had admitted her relation with Askar Ali. He has further stated that in the Salish the respondent gave three Talaks to his wife, but the mehr mentioned in the Kabilnama was not returned after Talak. One, Md. Abdus Samad (OPW 3) narrated in tune with OPW 2 and stated that the respondent had pronounced three Talaks to his wife in her presence and decided that they would execute the Talaknama. 9. On analysis of the testimonies of the petitioner and the respondent the trial court found that the respondent had divorced the petitioner by pronouncing Talaks as permissible in the Shariyat laws. Further that, even though the Talaknama has not been executed by the respondent, it cannot be said that the divorce is not complete. 9. On analysis of the testimonies of the petitioner and the respondent the trial court found that the respondent had divorced the petitioner by pronouncing Talaks as permissible in the Shariyat laws. Further that, even though the Talaknama has not been executed by the respondent, it cannot be said that the divorce is not complete. In the Para 11 of the judgment, the following finding has been returned by the Judge, Family Court, Kailashahar : "11. In the aforesaid long discussion I am of the opinion that though the petitioner was legally married wife of the opposite party but she was divorced by her husband by way of 'Talak' she is not entitled to get any maintenance as per Provision of the section 125, Cr.PC but her minor daughter Mst. Najma Begam is entitled to get maintenance from her father opposite party since she is minor and residing with her mother petitioner in the house of the father of the petitioner." 10. Based on the findings as stated the Judge, Family Court, Kailashahar has directed the respondents to pay the maintenance @ Rs. 500 to the minor child within the 10th day of every English calendar month. 11. Mr. I. Chakraborty, learned counsel, appearing for the petitioner has unfolded the petitioner's agony and submitted that this court in Hasenara Begum v. Bazar Ali, (2001) 3 GLR 576 has held that: "Both the provisions embodied under sub-sections (1) and (2) of section 4 of the Act deal with the payment of maintenance and maintenance alone and never deal with "making any provision". Under section 125 of the Cr.PC the husband's liability is confined to maintenance only and there is no stipulation for "making provision", but in "the Muslim Women (Protection of Rights on Divorce) Act, 1986" in section 3 the Parliament very deliberately used different terms so far the liabilities of the former husband is concerned. The former husband is put under obligation by the Act to make provision and to pay maintenance and according to the dissenting judgment of Hon'ble Mr. Justice S. Rao of Andhra Pradesh High Court in Usman Khan Bahamani (supra), both the terms as emphasized above cannot convey same and identical meaning. The former husband is put under obligation by the Act to make provision and to pay maintenance and according to the dissenting judgment of Hon'ble Mr. Justice S. Rao of Andhra Pradesh High Court in Usman Khan Bahamani (supra), both the terms as emphasized above cannot convey same and identical meaning. Only section 3 of the Act directs the husband to make "provision" and pay "maintenance" to his divorced wife while neither section 4 nor Chapter IX of Cr.PC impose any such obligation/liability upon anybody to make any "provision" for divorced woman." 12. In Shakila Parveen v. Haider Ali @ Haidar and Another, 2000 C Cr.LR (Cal.) 201, Calcutta High Court has observed that : "8. Taking into consideration the objects and reasons for enacting the Muslim Women (Protection of Rights of Divorce) Act as well as the Preamble and the plain language of section 3 it cannot be said that Muslim Women Act in any way adversely affects the personal rights of a Muslim divorced woman. Nowhere in the Act it is provided that the rights which are conferred upon a Muslim divorced wife under Personal Law are abrogated, restricted or repealed. It is presumed that the Act is enacted with deliberation and full Knowledge of existing law on the object, in view of the Preamble the Act is enacted to protect the rights of Muslim Women who have been divorced by, or have obtained divorce from their husbands. In simplest language the Parliament has stated that the Act is for protecting the rights of Muslim Women. It does not provide that it is enacted for taking away some rights which a Muslim woman was having either under Personal Law or under the general law, i.e., sections 125 to 128 of the Cr.PC. 9. By the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986, the order passed by Magistrate under section 125 of Cr.PC ordering Muslim husband to oav maintenance to his divorced wife would not be nonest. There is no section in the Act which nullifies the orders passed by the Magistrate under section 125 of the Cr.PC. Further, once the order under section 125 of the Cr.PC granting maintenance to the divorced woman is passed, then her rights are crystalized and she gets vested right to recover maintenance from her former husband. There is no section in the Act which nullifies the orders passed by the Magistrate under section 125 of the Cr.PC. Further, once the order under section 125 of the Cr.PC granting maintenance to the divorced woman is passed, then her rights are crystalized and she gets vested right to recover maintenance from her former husband. That vested right is not taken away by the Parliament by providing any provision in the Act. Under section 5 an option is given to the parties to be governed by the provision of sections 125 to 128 of the Cr.PC. This section also indicate that the Parliament never intended to take away the vested right of Muslim divorced woman which was crystallized before the passing of the Act. There is no inconsistency between the provisions of Act and the provisions of sections 125 to 128 of the Cr.PC on the, contrary the provisions of Muslim Women Act grant more relief to the divorced woman depending upon the financial position of her former husband. 10. On a careful consideration of the principle decided in the above judgment I find the expression "during iddat period" should not be strictly construed only during that period. But it should be extended till a Mohammedan divorced female enters remarriage. Accordingly the learned Magistrate's order is modified and the petitioner shall be entitled to get Rs. 800 per month as maintenance from the date of application till she remarry." 13. In Shabana Bano v. Imran Khan, 2010 Crl. LJ 521, the Apex Court has enunciated the law having regard to the aspect of emancipation of the divorced Muslim women from their dehumanized existence : "23. In the light of the aforesaid contentions and in view of the pronouncement of judgments detailing the said issue, learned counsel for the appellant submits that matter stands finally settled but learned Single Judge wholly misconstrued the various provisions of the different Acts as mentioned herein above, thus, committed a grave error in rejecting the appellant's prayer. 24. In our opinion, the point stands settled by judgment of this court reported in (2001) 7 SCC 740 titled Danial Latifi and Anr. v. Union of India pronounced by a Constitution Bench of this court. Paras 30, 31 and 32. thereof fully establish the said right of the appellant. The said paragraphs are reproduced herein under: "30. 24. In our opinion, the point stands settled by judgment of this court reported in (2001) 7 SCC 740 titled Danial Latifi and Anr. v. Union of India pronounced by a Constitution Bench of this court. Paras 30, 31 and 32. thereof fully establish the said right of the appellant. The said paragraphs are reproduced herein under: "30. A comparison of these provisions with section 125, Cr.PC will make it dear that requirements provided in section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of section 125, Cr.PC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners. 31. Even under the Act, the parties agreed that the provisions of section 125, Cr.PC would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under section 125, Cr.PC would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional. 32. As on the date the Act came into force the law applicable to Muslim divorced women is as declared by this court in Shah Bano's case (1985) 2 SCC 556 ; Mohd. Ahmed Khan v. Shah Bano Begum and Ors. In this case to find out the personal law of Muslims with regard to divorced women's rights, the starting point should be Shah Bano's case and not the original texts or any other material - all the more so when varying versions as to the authenticity of the source are shown to exist. Hence, we have refrained from referring to them in detail. Hence, we have refrained from referring to them in detail. That declaration was made after considering the Holy Quran, and other commentaries or other texts. When a Constitution Bench of this court analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant textual material, we do not think, it is open for us to re-examine that position and delve into a research to reach another conclusion. We respectfully abide by what has been stated therein. All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this court in Shah Bano's case without mutilating its underlying ratio. We have carefully analysed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Bano's case. The learned Solicitor General contended that what has been stated in the Objects and Reasons in Bill leading to the Act is a fact and that we should presume to be correct. We have analysed the facts and the law in Shah Bano's case and proceeded to find out the impact of the same on the Act. If the language of the Act is as we have stated, the mere fact that the Legislature took note of certain facts in enacting the law will not be of much materiality." 25. Judgment of this court reported in (2007) 6 SCC 785 titled Iqbal Bano v. State of U.P. and Anr. whereby the provisions contained in section 125 of the Cr.PC have been aptly considered and the relevant portion of the order passed in Iqbal Bano's case reads as under : "10. Proceedings under section 125, Cr.PC are civil in nature. Even if the court noticed that there was a divorced woman in the case in question, it was open to it to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under section 125, Cr.PC and claims made under the Act are tried by the same court. In Vijay Kumar Prasad v. State of Bihar, (2004) 5 SCC 196 it was held that proceedings under section 125, Cr.PC are civil in nature. It was noted as follows: (SCC p.200, para 14). 14. Proceedings under section 125, Cr.PC and claims made under the Act are tried by the same court. In Vijay Kumar Prasad v. State of Bihar, (2004) 5 SCC 196 it was held that proceedings under section 125, Cr.PC are civil in nature. It was noted as follows: (SCC p.200, para 14). 14. The basic distinction between section 488 of the old Code and section 126 of the Code is that section 126 has essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing on the date of application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where the husband and wife last resided together. As noted by this court in several cases, proceedings under section 125 of the Code are of civil nature. Unlike clauses (b) and (c) of section 126(1) an application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives." 26. In the light of the findings already recorded in earlier paras, it is not necessary for us to go into the merits. The point stands well settled which we would like to reiterate. 27. The appellant's petition under section 125 of the Cr.PC would be maintainable before the Family Court as long as appellant does not remarry. The amount of maintenance to be awarded under section 125 of the Cr.PC cannot be restricted for the iddat period only. 28. Learned Single Judge appeared to be little confused with regard to different provisions of Muslim Act, Family Act and Cr.PC and, thus, was wholly unjustified in rejecting the appellant's Revision. 29. Cumulative reading of the relevant portions of judgments of this court in Danial Latifi (supra) and Iqbal Bam (supra) would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women. 30. In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women. 30. In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under section 125 or the Cr.PC after the expiry of period of iddat also, as long as she does not remarry." 14. In this regard, a Full Bench of Punjab and Haryana High Court, reported in 1998 (1) ILR 267 in Kaka v. Hassan Bano and Another, has observed: "The claim of maintenance by a divorced Muslim wife necessarily need not be restricted only to the Iddat period. Unless the husband shows before the court of competent jurisdiction that he has, within the Iddat period, provided, made and paid a reasonable and fair provision and maintenance, to the wife, which is an adequate provision, for her life or till she remarries. The husband may show before the court that the wife by her own act and conduct has become dis-entitled to receive such amount in accordance with law or has earned the disqualification dis-entitling her to the payment of the amount of maintenance." 15. In Chand Muhammed v. Zeenath and Anr., 2012 Crl. LJ 1220 Kerala High Court imbibed by Shabana Bano (supra) has observed : "Since the main purpose of the Statute is to protect the interest of the divorced Muslim woman, even if two interpretations are equally possible/that interpretation which is reasonable and favourable to protect the interest of the divorced Muslim woman has to be preferred to." 16. In Shabana Bano (supra) the Apex Court has considered Iqbal Bano v. State of U.P. and Anr., AIR 2007 SC 2217 and held that: "7. (3) A divorced Muslim woman who is 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 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. 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. (4) The provisions of the Act do not defend articles 14, 15 and 21 of the Indian Constitution." 17. From the other side, Mr. S. Chakraborty, learned counsel, appearing for the respondent has submitted that the respondent has proved by evidence and the status of the petitioner is that of a divorced Muslim woman and as such, the proceeding under section 125 cannot sustain. Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 postulates for provision and maintenance of a divorced Muslim woman till her remarriage, apart from the obligation of maintaining her during the period of iddat. Mr. Chakraborty, learned counsel for the respondent has alternatively submitted that since the petitioner was living in adultery with one Askar Ali, she is dis-entitled to get any maintenance in view of the exclusionary provisions as engrafted in section 125(4) of the Cr.PC. 18. On appreciation of the evidence as led by the parties and submissions by the learned counsel, this court concludes as under : "(1) For pronouncement of Talak in a Salish having not been admitted by the wife and in absence of a Talaknama it cannot be said that the respondent had divorced the petitioner, as per the Muslim correspondence. It has been admitted by the respondent as well that despite his attempt to draw the Talaknama he could not succeed in that. Moreover, no one has been examined by the respondent to say that the Talak as claimed to have pronounced by the respondent and not admitted by the wife can constitute divorce within the ambit of tie Muslim personal laws and as enunciated by Must. Rukia Khatun v. Abdul Khalid Laskar, (1981) 1 GLR 375. (2) It is the admitted position even if the Talak is held to be valid, the respondent has not maintained the petitioner within the period of iddat, did not discharge the mehra and did not as well make any provision for her maintenance after the divorce, as obligated by section 3, of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Again, even if, it is assumed that Talak as pronounced is valid, the petitioner is entitled to maintenance or provision under section 4 of the said Act. Again, even if, it is assumed that Talak as pronounced is valid, the petitioner is entitled to maintenance or provision under section 4 of the said Act. Admittedly, the said maintenance on provision has not been made." 19. As decided by the apex court in Danial Latifi and Anr. v. Union of India, the Magistrate is conferred with power to direct maintenance of the Muslim divorced wife by the relatives or in their Wakf Board. Apart that, the provision of maintenance has to be guaranteed by the husband. By the said Constitution Bench decision in Danial Latifi (supra), the Apex Court has further held that : "While interpreting the provision of sections 3(1)(a) and 4 of the Act, it is held that a divorced Muslim woman is entitled to a fair and reasonable, provision for her future being made by her former husband which must include maintenance for future extending beyond the iddat period. It was held that the liability of the former husband to make a reasonable and fair provision under section 3(1)(a) of the Act is not restricted only for the period of iddat but that divorced Muslim woman is entitled to a reasonable and fair provision for her future being made by her former husband and also to maintenance being paid to her for the iddat period. A lot of emphasis was laid on the words "made" and "paid" and were construed to mean not only to make provision for the iddat period but also to make a reasonable and fair provision for her future. A Full Bench of the Punjab and Haryana High Court in Kaka v. Hassan Bano and Anr., has taken the view that under section 3(1)(a) of the Act a divorced Muslim woman can claim maintenance which is not restricted to iddat period. To the contrary it has been held that it is not open to the wife to claim fair and reasonable provision for the future in addition to what she had already received at the time of her divorce: that the liability of the husband is limited for the period of iddat and thereafter if she is unable to maintain herself, she has to approach her relative or Wakf Board, by majority decision in Umar Khan Bahamami v. Fathimnurisa AIR 1990 AP 225 : Abdul Rashid v. Sultana Begum: Abdul Haq v. Yasima Talat : Md. Marahim v. Raiza Begum, 1993 PMC 60. Thus preponderance of judicial opinion is in favour of what we have concluded in the interpretation of section 3 of the Act. The decisions of the High Court referred to herein that are contrary to our decision stand overruled. 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 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(l)(a) of the Act. (2) 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. (3) 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 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." 20. In short, it can be said that in view of Danial Latiff (supra), liability of the Muslim husband to his divorced wife arising under section 3(1) of the Act to pay reasonable maintenance is not confined to the iddat period. As already stated, on evidence available, there is no proof of valid Talak of the petitioner by the respondent and as such, the respondent cannot be divested of his responsibility to maintain the petitioner. Apart that, there is no proof of adultery as stated by Mr. Chakraborty, learned counsel for the respondent. Therefore, the petitioner cannot be stated as dis-entitled by the exclusionary provision to have the maintenance under the provisions of section 125 of the Cr.PC. It is made clear that even if the status of the petitioner is assumed to be the divorced Muslim woman, she is also entitled to maintenance from the respondent beyond the period of iddat. In this case, no maintenance or provision for any period has been made or paid by respondent. 21. It is made clear that even if the status of the petitioner is assumed to be the divorced Muslim woman, she is also entitled to maintenance from the respondent beyond the period of iddat. In this case, no maintenance or provision for any period has been made or paid by respondent. 21. It appears that there are two divergent views in regard to entitlement of maintenance of the Muslim divorced woman. In Danial Latifi (supra), the Constitution Bench of the Apex Court enunciated the law that 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 said Act and the liability of the Muslim husband to his divorced wife arisen under section 3(l)(a) of the Act to pay maintenance is not and cannot be treated confined to the iddat period. It has seen further held that a divorced Muslim woman who has not remarried and who is not in a state to maintain herself after the iddat period can proceed under section 4 of the Act against her relatives who are liable to maintain her in proportion of 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 Wakf Act, to pay such maintenance. This decision has definitely excluded the provisions of section 125, Cr.PC to come as an aid for rescuing the Muslim divorced woman from vagrancy, which has been criticized for that reason from the human right's parameters. The fundamental principles of the Muslim laws rather uphold the practise of caring the destitute. 22. In Shabana Bano (supra), the Apex Court after considering Danial Latifi (supra), has revisited this aspect of the law holding that the cumulative reading of the relevant portions of the judgments in Danial Latifi (supra) and Iqbal Bano (supra), would make it abundantly clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim woman and on such premises it has been held that a petition under section 125, Cr.PC, therefore, would be maintainable in the Family Court or other competent courts as long as the divorced Muslim woman does not remarry. The amount of maintenance to be awarded under section 125, Cr.PC cannot be restricted for the iddat period only. In Shabana Bano (supra), the Apex Court has re-interpreted the statutory provisions to some extent. The apex court has critically visited Danial Latifi (supra) and weighed the proposition that a divorced Muslim woman may claim maintenance from the relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to the Muslim Laws and if the relatives are found under disability to pay maintenance, the Magistrate may direct the State Wakf Board, established under the Wakf Act, to pay such maintenance. In harmony to what has been enunciated in Shabana Bano (supra), this court holes that a divorced Muslim woman would be entitled to claim maintenance under section 125 of Cr.PC from her husband as long as she does not remarry and a fair and reasonable provision has not been made by the husband. The amount of maintenance to be awarded under section 12.5 of Cr.PC cannot be restricted to the iddat period only. Apart that it appeared that for the first time in the written objection the incidence of talak has been narrated and communicated to the petitioner, even though the OPWs have stated that in the 'salish' the respondent No.1 pronounced talaks as per the Shariat Laws and from that point of time the petitioner's status is, that of, a Muslim divorced woman. However, it has been admitted that the Mehr as promised to be paid in the Kabilnama has not been paid to the petitioner. Whether the talak as claimed to have pronounced abruptly in the salish can be treated as a valid divorce is a matter of paramount consideration. 23. This court in Must. Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 GLR 375, held : "11. Whether the talak as claimed to have pronounced abruptly in the salish can be treated as a valid divorce is a matter of paramount consideration. 23. This court in Must. Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 GLR 375, held : "11. In our opinion the correct law of 'talaq' as ordained by Holy Quran is: (i) that 'talaq' must he for a reasonable cause; and (ii) that it must be preceded by an attempt at reconciliation between the husband and wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, 'talaq' may be effected. In our opinion the Single Judge has correctly laid down the law in Criminal Revision No. 199/77 (supra), and, with respect the Calcutta High Court in ILR 59 Cal. 833 and the Bombay High Court in ILR 30 Bom. 537 have not laid down the correct law. 12. Mr. Mazumdar has fairly conceded to the correctness of the view taken by us but he submits that in the instant case the 'talaq' has been effected in accordance with law. The husband's case was that he effected the 'talaq' by executing a deed at the residence of the wife's father. But the husband has not mentioned the ground of the divorce or that his life was unbearable or that there was an attempt at reconciliation. We, therefore, hold that the husband has failed to prove that there was a valid 'talaq' in this case." In this case also there is no evidence that the husband has mentioned the ground of divorce or that his wife was unbearable or that there was an attempt of reconciliation. 24. In Shamim Ara v. State of U.P. and Anr., AIR 2002 SCW 4162 , the decision of this court in Must. Rukia Khatun (supra) has got the Apex Court's approval. In Shamim Ara (supra), the liberal view of talak for bringing the marital relation between the Muslim spouses to an end has been subject to inclement criticism and strong disapproval for being heavily loaded in favour of the Muslim husband and such view has been expressed in no uncertain terms. Rukia Khatun (supra) has got the Apex Court's approval. In Shamim Ara (supra), the liberal view of talak for bringing the marital relation between the Muslim spouses to an end has been subject to inclement criticism and strong disapproval for being heavily loaded in favour of the Muslim husband and such view has been expressed in no uncertain terms. In Shamim Ara (supra) it has been sarcastically referred as under : "The only condition necessary for the valid exercise of the right of divorce by a husband is that he must be a major and of sound mind at that time. He can effect divorce whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in anger that is considered perfectly valid. No special form is necessary for effecting divorce under Hanafi law... The husband can effect if by conveying to the wife that he is repudiating the alliance. It need not even be addressed to her. It takes effect the moment it comes to her knowledge." 25. Shamim Ara (supra) has questioned that whether the Muslim wives should continue to suffer the tyranny for all times? Should their personal law remain so cruel towards the unfortunate wives? The interpretation of a legislation must be informed by the social perspective and purpose and within its grammatical flexibility, must further the beneficent object. And so we must appreciate the Islamic ethos and the general sociological background which inspired the enactment of the law before locating the precise connotation of the words used in the statute. Justice V.R. Krishna Iyer, as he then was, has observed in A. Yousuf Rawther v. Sowramma, AIR 1971 Ker. 261 that it is a popular fallacy that a Muslim man enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage. "The whole Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him, 'if they (namely, women) obey you, then do not seek a way against them'." (Quaran IV:34). The Islamic "law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy, but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. The Islamic "law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy, but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously." 26. The question that eminently surfaced is that whether there had been valid talaq of the petitioner by her husband under the Muslim Law? It has been observed that even though marriage under the Muslim Law is only a civil contract yet the rights and responsibilities consequent upon it are of such paramountcy to the welfare that a high degree of sanctity is attached to it. But in spite of the sacredness of the character of the marriage-tie, Islam recognises the necessity. In exceptional circumstances, of keeping the way open for its dissolution. Quoting in the judgment several Holy Quaranic verses and from commentaries thereon by the well-recognised scholars of great eminence, Justice Iyer has expressed disapproval of the statement that "the whimsical and capricious divorce by the husband is good in law, though bad in theology" and observed that such a statement is based on the concept that the women were chattel belonging to men, which the Holy Quran does not brook. The correct law of talaq as ordained by the Quran is that talaq must be for a reasonable cause and be preceded by attempts as reconciliation between the husband and the wife by two arbiters - one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected. In Rukia Khatun (supra), what this court has enunciated has been reproduced. Unless there is a genuine attempt for reconciliation in the mode as stated, the talaq cannot be treated as valid talaq. In Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan and Ors., (2002) 3 Bom LR 50, a full bench of Bombay High Court has enunciated the law further : "26. Unless there is a genuine attempt for reconciliation in the mode as stated, the talaq cannot be treated as valid talaq. In Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan and Ors., (2002) 3 Bom LR 50, a full bench of Bombay High Court has enunciated the law further : "26. The above discussion does indicate that mere pronouncement of Talaq by the husband or merely declaring his intentions or his acts of having pronounced the Talaq is not sufficient and does not meet the requirement of law. In every such exercise of right to Talaq, the husband is required to satisfy the precondition of arbitration for reconciliation and reasons for Talaq. Conveying his intentions to divorce the wife are not adequate to meet the requirement of Talaq in the eyes of law. All the stages of conveying the reasons for divorce, appointment of arbiters, the arbiters resorting to conciliation proceedings so as to bring reconciliation between the parties and the failure of such proceeding or a situation where it was impossible for the marriage to continue are required to be proved as condition precedent for the husband's right to give Talaq to his wife. It is, thus, not merely the factum of Talaq, but the conditions preceding to this stage of giving Talaq are also required to be proved when the wife disputes the factum of or the effectiveness of Talaq or the legality before a court of law. Mere statement made in writing before the court, in any form, or in oral depositions regarding the Talaq, having been pronounced sometimes in the past is not sufficient to hold that the husband has divorced his wife and such a divorce is in keeping with the dictates of Islam." 27. The law is dynamic and its meaning cannot be pedantic but purposeful. In view of this, the Apex Court in Shamim Ara (supra) held : "16. We are also of the opinion that the talaq to be effective has to be pronounced. The term 'pronounce' means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate (See Chambers 20th Century Dictionary, New Edition, p. 1030). There is no proof of talaq having taken place on 11.7.1987. We are also of the opinion that the talaq to be effective has to be pronounced. The term 'pronounce' means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate (See Chambers 20th Century Dictionary, New Edition, p. 1030). There is no proof of talaq having taken place on 11.7.1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5.12.1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effecting talaq on the date of delivery of the copy of the written statement to the wife. The respondent No. 2 ought to have adduced evidence and proved the pronounced of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31.8.1988, filed in some previous judicial proceedings not inter parte, containing a self-serving statement of respondent No. 2, could not have been read in evidence as relevant and of any value." Different high courts are divided in their opinion on interpreting the jurisdiction of the criminal court for exercising its power as conferred by section 125 of the Cr.PC after enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Apex Court has bludgeoned the extremely divergent interrelations to a greater extent by developing the law in the background of the changing social order and the right-based growth. 28. The Apex Court has bludgeoned the extremely divergent interrelations to a greater extent by developing the law in the background of the changing social order and the right-based growth. 28. In this case also there is no proof whatsoever that there had been any attempt of reconciliation by the two arbiters as enunciated by this court in Rukia Khatun (supra) and it appears that for the first time in the written objection the episode that the talaq was pronounced in the past has been communicated to the petitioner. Such talaq cannot be accepted as the legal talaq nor can it have any effect on the petitioner as per the Sharait Laws and as such the finding as returned on that issue by the Family Court is liable to be interfered with and accordingly it is interfered. 29. For the reasons as stated, this court holds that the Muslim divorced woman unless secured with fair and reasonable provision for maintenance, in view of section 3(l)(a) of tie Act, the Muslim woman is entitled to seek maintenance beyond the period of iddat from the husband either under section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 or under section 125 of the Code of Criminal Procedure, 1973. The option of forum exclusively lies to the divorced Muslim women. So is the law as declared by the Apex Court in Shabana Bano (supra). 30. In this case, since the Talaq has not been accepted as the legal Talaq, the status of the petitioner has to be construed as the married wife of the respondent and as such her claim for maintenance under section 125 of Cr.PC cannot be questioned on the ground of locus and, hence, the finding of the Family Court in this regard has been interfered with. It is directed that the respondent shall pay the petitioner a sum of Rs. 2,000 per month, in addition to the maintenance as has been directed to be paid for their daughter, within 10th day of every English Calendar month w.e.f. 1.1.2013 without fail. The said amount of maintenance shall be sent to the petitioner by way of Money Order and the cost of Money Order has to be borne by the respondent. 2,000 per month, in addition to the maintenance as has been directed to be paid for their daughter, within 10th day of every English Calendar month w.e.f. 1.1.2013 without fail. The said amount of maintenance shall be sent to the petitioner by way of Money Order and the cost of Money Order has to be borne by the respondent. Even though the petitioner is entitled to have the order of maintenance from the date of filing the petition under section 125 of Cr.PC, this court, considering the attending circumstances is not inclined to direct the respondent to pay the arrears from the date of application but the respondent shall pay a lump-sum amount of Rs. 10,000 to the petitioner within 3 months from the date of receipt of this order in 2 equal instalments, in addition. 31. The impugned judgment and order dated 5.8.2009 passed by the Judge, Family Court, North Tripura, Kailashahar in Criminal Misc. Case No. 36/2009 is hereby set aside for it relates to refusal of maintenance to the petitioner. 32. With these observations and direction, this revision petition stands allowed. Copies of this order be supplied by the Registry to the counsel for the parties, free of cost.