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2012 DIGILAW 345 (RAJ)

FAROOQ HASAN v. MADINA

2012-02-07

DALIP SINGH

body2012
Judgement Dalip Singh, J [1] Heard learned counsel for the parties. [2] This revision petition has been filed challenging the order dated 22.09.2010 passed by the learned Family Court, Ajmer on the application submitted under Section 125 Cr.P.C., by Smt. Madina, divorced wife of the petitioner and Kumari Aafrin, daughter of the petitioner for maintenance. [3] Learned Family Court by the impugned order allowed maintenance of Rs.500/- to the wife of the petitioner and Rs.500/- to his daughter. [4] Being aggrieved by the aforesaid order, the petitioner has challenged the order in respect of grant of maintenance to Smt. Madina, the wife on the ground that she was a divorced lady and in accordance with the provisions of the Muslim Women [Protection of Rights and Divorce] Act, 1986 she was not entitled to any maintenance; post divorce and post period of 'iddat'. [5] Apart from the above, it was also contended by the learned counsel for the petitioner that in the instant case at the time of the 'talak' an agreement was entered into and according to the terms of which the wife had agreed that she would not claim any maintenance and as such her application under Section 125 Cr.P.C., was not maintainable. [6] Notices were issued to the respondent and the respondent Smt. Madina has put in appearance through her counsel. [7] I have heard the learned counsel for the parties. [8] Learned counsel for the respondents pointed out that the aforesaid question which has been raised by the counsel for the petitioner in this case has already been finally decided by the Hon'ble Supreme Court in the catena of decision including the case of Shabana Bano Vs. Imran Khan, 2010 1 SCC 666 . [9] It was contended by the learned counsel that as a result of the aforesaid decision, it has now been held that divorced wife despite the provisions of the Act of 1986 would be entitled to maintenance upto the date she does not remarry and her right is not restricted upto the period of 'iddat' only and the family court is entitled to grant maintenance under Section 125 Cr.P.C. [10] Learned counsel for the petitioner faced with the above submitted on the basis of the alternate arguments that the wife at the time of dissolution of marriage had entered into an agreement on 05.06.2008. According to the terms of which she had stated categorically that henceforth she would not make any claim for maintenance and in view of the above agreement or terms she is not entitled to any amount of maintenance under Section 125 Cr.P.C. [11] I have considered the rival submissions. [12] So far as first contention is concerned, regarding the dis-entitlement on account of the applicability of the Act of 1986, I find that the Hon'ble Supreme Court in the case of Shabana Bano [supra] has laid down in Para 21 to 24 of the report, as follows :- "21. The appellant's petition under Section 125 Cr.P.C. would be maintainable before the Family Court as long as the appellant does not remarry. The amount of maintenance to be awarded under Section 125 Cr.P.C. cannot be restricted for the Iddat period only. 22. The learned Single Judge appeared to be little confused with regard to different provisions of the Muslim Act, the Family Act and Cr.P.C. and thus was wholly unjustified in rejected the appellant's revision. 23. Cumulative reading of the relevant portions of the judgments of this Court in Danial Latifi and Iqbal Bano 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. 24. 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 Cr.P.C, after the expiry of period of Iddat also, as long as she does not remarry. As a necessary consequences thereof, the matter is remanded to the Family Court at Gwalior for its disposal on merits at an early date, in accordance with law. The respondent shall bear the costs of litigation of the appellant. Counsel's fees Rs.5000/-". [13] In the light of the aforesaid authoritative pronouncement of the Hon'ble Supreme Court, it is now crystal clear that even a divorced Muslim woman would be entitled to move an application before the Family Court claiming maintenance under Section 125 Cr.P.C., and shall be entitled to receive the same beyond the period of 'iddat' till the time she does not remarry. [14] In view of the above, the first contention of the learned counsel for the petitioner has no merit and the same deserves to be dismissed. [15] As regards the second contention regarding the alleged agreement, it would be worthwhile to reproduce here the terms of the agreement relied upon by the petitioner-husband. The terms of the said compromise reads as follows :- "xxx xxx xxx". [16] Learned counsel relied upon the specific term that xxx xxx xxx [17] It may be seen that the above passage has to be seen in the light of the totality of the terms of the agreement and Para 2 of the same. The literal meaning of the said terms and conditions mean that in future the party of the second part could not be entitled to seek any amount by way of compensation. The term 'Harja-Kharcha' clearly refers to compensation as distinguished from maintenance. There is nothing in the agreement to suggest that the wife was relinquishing her rights to claim maintenance. [18] In the light of the above, the aforesaid contention of the learned counsel for the petitioner cannot be accepted. [19] In the facts and circumstances, I find no merit in the submissions of the learned counsel for the petitioner. [20] This revision petition and the stay application, accordingly, stand dismissed. [21] Interim order passed by this Court on 12.11.2010 stands vacated. [22] Petitioner shall pay the arrears of the amount due to the respondent No.1 wife in terms of the order of the learned Family Court dated 22.09.2010 in three equal installments; first installment shall be paid on or before 31.03.2012, second on or before 30.06.2012 and third on or before 30.09.2012. In case, petitioner commits default, the respondent would be entitled to recover the entire amount in accordance with law all together. [23] Consequently, the revision petition as well as the stay application stand dismissed. Revision dismissed.