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Madhya Pradesh High Court · body

2013 DIGILAW 836 (MP)

Qureshia Bi v. Abdul Hameed

2013-07-19

J.K.MAHESHWARI

body2013
JUDGMENT J.K. Maheshwari, J.:- Invoking the jurisdiction under section 482 of Criminal Procedure Code and challenging the orders passed by the revisional Court dated 9-2-2011 upholding the order of the trial Court dated 6-10-2009, rejecting the application filed by the applicant under section 127 of Criminal Procedure Code as not maintainable on commencement of Muslim Women (Protection of Rights on Divorce) Act, 1986, the applicant has preferred this petition. The facts leading to file the present petition are that the applicant and the non-applicant belong to Muslim caste and married according to the Muslim religion. The applicant divorced by the non-applicant-husband on 15-10-1986, thereafter competent Court passed the judgment dated 11-5-1997 decreeing the suit of divorce. On filing an application under section125 of Criminal Procedure Code by the applicant, an amount of maintenance Rs. 125/- monthly was awarded as per order dated 15-10-1985 passed in Criminal Miscellaneous Case No. 10/83 by Judicial Magistrate First Class, Indore. After lapse of more than two decades, the applicant filed an application under section 127 of Criminal Procedure Code on 12-1-2007 seeking alteration in the monthly allowance on the ground that husband has re-married, however, maintenance awarded about 27 years back is inappropriate to meet out the present expenses due to rise in prices. Thus, looking to his present earning more than Rs. 10,000/- per month, enhanced maintenance of Rs. 3000/- may be directed to pay, to the applicant. 2. The non-applicant has raised an objection regarding maintainability of the said application in reply, inter alia contended that the applicant is the divorced woman as admitted by her, in Miscellaneous Criminal Case No. 55/04 which was rejected on account of non-production of the evidence. Thus, after commencement of the said Act, application filed by applicant under section 127 of Criminal Procedure Code is not maintainable. 3. The trial Court relying upon the judgment of this Court in the case of Munni @ Mubarik vs. Shahbaz Khan reported in 2002(2) MPLJ 340 recorded a finding that the application filed by the petitioner under section 127 of Criminal Procedure Code is not maintainable, the said order has been upheld by the revisional Court in toto, however the present petition has been filed. 4. Learned counsel appearing on behalf of the applicant submits that the orders passed by the two Courts below is unsustainable in law. 4. Learned counsel appearing on behalf of the applicant submits that the orders passed by the two Courts below is unsustainable in law. It is his contention that even after commencement of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter it be referred as 'the Act of 1986'), the applicability of the provisions of section125 to 128 of Criminal Procedure Code is not ousted. To bolster his submission, reliance has been placed on the judgment of Apex Court in the case of Danial Latifi and another vs. Union of India, (2001) 7 SCC 740 ; Iqbal Bano vs. State of U.P. and another (2007) 6 SCC 785 ; and Shabana Bano vs. Imran Khan, 2010 (3) MPLJ (S.C) 438 : 2010 (1) MPLJ (Cri.) (S.C.) 665 : (2010) 1 SCC 666 . In view of the said pronouncements, it is submitted that the order passed by the trial Court and the revisional Court may be set aside and looking to the earning of the respondent and his status, adequate amount of maintenance may be awarded by this Court allowing this petition. 5. Per contra, learned counsel representing non-applicant submits that this Court in the case of Munni @ Mubarik (supra) has considered the judgment of Danial Latifi (supra) and held that the divorced Muslim wife can take recourse only under section 3(1)(2) of the Act of 1986. However the judgment of the coordinate bench of this Court is binding on this Court, therefore interference is not warranted, hence, this petition may be dismissed upholding the orders of the Courts below. 6. After hearing learned counsel for the parties and looking to language of section 3 of the Act of 1986, it starts with the non obstinate clause, in addition to the provisions of grant of maintenance in any other law the divorced Muslim woman is held entitled a "reasonable and fair provision" and "maintenance" to her for the Iddat period or till her re-marriage. The divorced Muslim woman is having right to move an application in this regard under section 3(2)of the Act of 1986 and the Magistrate if satisfies may pass an order for grant of maintenance against her husband having sufficient means and has failed or neglected to make or pay within the Iddat period reasonable and fair provision and maintenance for her and the children. As per section 4, it is clear that till her re-marriage the amount of maintenance may be determined as per the standard of life enjoyed by her during her marriage and the means of such husband and relatives and also in proportion in which they would inherit the property. As per section 5 if on the date of first hearing of the application filed under sub-section (2) of section 3 of the Act of 1986 by divorce Muslim woman and upon issuance of the notice of the said application, on the date of first hearing a divorced Muslim woman and her former husband may declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 or under the Act of 1986, and on filing such affidavit or declaration in the Court hearing the application, the Magistrate is required to decide the application accordingly. As per section 7 of the Act, it is clear that if an application has been filed by a divorced Muslim woman under section 125 or 127 of Criminal Procedure Code, is pending on commencement of the Act of 1986, then notwithstanding anything contained under the provisions of the Code of Criminal Procedure subject to provisions of section 5 of the said Act, it may be disposed of by the such Magistrate as per the provisions of the Act of 1986. 7. Learned Court below has relied upon the judgment of this Court in the case of Munni alias Mubarik Begum (supra) wherein another judgment of this Court in the case of Julekha Bi vs. Mohamad Fazal, 1999(2) MPLJ 64 was relied upon. In the said case of Julekha Bi (supra), the judgment of this Court in the case of Abdul Rashid (Dr.) vs. Mst. Farida, 1994 MPLJ 583 was relied upon. In the said three judgments, this Court has held that application under section 125 of Criminal Procedure Code, is not maintainable by a divorced Muslim woman. It has further been held that after commencement of the said Act the divorced Muslim wife excluded from the inclusive definition of wife given in Explanation-(b) of section 125(1) of Criminal Procedure Code. In the said three judgments, this Court has held that application under section 125 of Criminal Procedure Code, is not maintainable by a divorced Muslim woman. It has further been held that after commencement of the said Act the divorced Muslim wife excluded from the inclusive definition of wife given in Explanation-(b) of section 125(1) of Criminal Procedure Code. It has also been held that if an application under section 125 of Criminal Procedure Code is pending on the date of commencement of the Act, then such application may be dealt with as per the provisions of the Act, otherwise application under section 125 of Criminal Procedure Code cannot be maintained by a divorced Muslim wife. It has further been held that the divorced Muslim wife is entitled to claim maintenance under the provisions of said Act, up to Iddat period only and not thereafter. Thus, to find out the binding effect of the said judgments of this Court in the context of the provisions contained under the Act of 1986, and the Criminal Procedure Code interpreted by various judgments of Hon'ble the Apex Court on the issue of maintainability of such application and to grant maintenance to a divorced Muslim wife even after Iddat period may be seen in the context of Article 141 of Constitution of India. It is further required to be seen that after the judgments of Hon'ble the Apex Court in Danial Latifi, Iqbal Bano and Shabana Bono (supra), the said three judgments of this Court is binding on this Court, and subordinate Courts. 8. The question as to whether section 125 of Criminal Procedure Code applies to divorced Muslim wife, was concluded by two decisions of the Hon'ble Apex Court, those are Bai Tahira vs. Ali Hussain Fidaalli Chorthia, 1979 MPLJ (S.C.) 132 : AIR 1979 SC 362 and Fuzlunbi vs. K. Khadar Vali, AIR 1980 SC 1730 . In the said decisions the Apex Court held that a divorced Muslim wife is entitled to maintain application under section 125 of Criminal Procedure Code and further held that the amount of Mahr is different than the maintenance. But, later on two Judges Bench of Hon'ble the Apex Court were not inclined to accept the said view and were of the opinion that those cases are not correctly decided, therefore, a reference was made to the larger Bench in the case of Mohd. But, later on two Judges Bench of Hon'ble the Apex Court were not inclined to accept the said view and were of the opinion that those cases are not correctly decided, therefore, a reference was made to the larger Bench in the case of Mohd. Ahmed Khan vs. Shah Bano Begum and others, AIR 1985 SC 945 which was decided by the Constitutional Bench consists with five Judges upholding the ratio of the said two judgments. In the said case the Supreme Court held that a divorced Muslim wife so long as she had not remarried, is a wife for the purpose of section 125 of Criminal Procedure Code and a statutory right to claim maintenance is available to her. The said provisions remain unaffected by the Personal Law applicable, because it is a secular provision. The Apex Court further held that section 125 deals with the cases in which a person who possessed of sufficient means neglects or refuses to maintain his wife who is unable to maintain herself. Muslim Personal Law do not limit the liability of the husband to provide for maintenance of the divorced wife even after the period of Iddat. It has been held that Muslim husband, according to Personal Law, is under an obligation to provide maintenance beyond the period of Iddat to his divorced wife who is unable to maintain herself. The Court referring Holy Quran, a Sacred book of Islam and referring Ayat and Suras No. 241, 242 and further referring commentaries of various writers of Mohammedan Law on the said issue concluded that Ayat of the Quran leaves no doubt for a Muslim husband to make a provision for or to provide maintenance to the divorced wife till she remarry. The Court has further held that "dawar" "Mahr" is payable at the time of dissolution of marriage cannot justify that it is payable "on divorced" to wife. Referring the provisions of section 127(3)(b) of the Code, held that if Mahr is an amount which the wife is entitled to receive from the husband, in consideration of the marriage that is very opposite amount being payable in consideration of divorce. Divorce dissolves the marriage, therefore, no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. Divorce dissolves the marriage, therefore, no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce. A man may marry a woman for love, looks, learning or nothing at all and he may settle a sum upon her as a mark of respect for her. But, he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable 'on divorce'. Thus upholding the validity of the judgment of Bai Tahira and Fuzlunbi (supra), held that that a divorce Muslim wife is entitled to apply for maintenance under section 125 and that Mahr is not a sum which under the Muslim Personal Law is payable on divorce. In the said judgment the Court recommended the form of uniform Civil Code throughout the territory of India and finally concluded that divorced Muslim wife is entitled for maintenance other than Mahr till she remarry, if residing separately with a justifiable reason. 9. Thereafter Parliament has enacted the law known as Muslim Women (Protection of Rights on Divorce) Act, 1986 to protect the rights of Muslim women who have been divorced and obtained divorce from their husband to provide for matters connected therewith or incidental thereto. The said Act came into existence on 19th May, 1986 wherein various provisions have been made to the divorced Muslim wife notwithstanding the provisions made in any other law which are in force. Varies of the said Act in the context of the judgment of Apex Court in the case of Shah Bono Begum (supra) and further referring inconsistency with the provisions under section 125 of the Code of Criminal Procedure and also challenging the constitutional validity, in the context of Articles 14 and 21 of the Constitution of India, was challenged before the Hon'ble Apex Court in the case of Danial Latifi and another (supra). The Supreme Court in the said judgment laid down the law as under: In interpreting the provisions where matrimonial relationship is involved the social conditions prevalent in society have to be considered. The Supreme Court in the said judgment laid down the law as under: In interpreting the provisions where matrimonial relationship is involved the social conditions prevalent in society have to be considered. In Indian 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. Indian 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 all her other avocations and entirely devolves 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, there: can be no answer to the question as to how a woman can be compensated so far as emotional fracture or loss of investment is concerned. 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 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 beliefs or national, sectarian, racial or communal constraints. The purpose of the Muslim Women (Protection of Rights on Divorce) Act 1986 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. The purpose of the Muslim Women (Protection of Rights on Divorce) Act 1986 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. However, 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. 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 contention that the expression "within" in section 3(1)(a) should be read as "during" or "for" cannot be accepted because words 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 section13(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. The important section in the Act is section 3 which provides that a divorced woman is entitled to obtain from her former husband "maintenance", "provision" and "mahr" and to recover from his possession her wedding presents and dowry and authorizes the Magistrate to order payment or restoration of these sums or properties. The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband. The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband. The wording of section 3 of the Act appear to indicate that the husband has two separate and distinct obligations; (1) to make a "reasonable and fair provision" for his divorced wife, and (2) to provide "maintenance" for her. The emphasis, of this section is not on the nature or duration of any such "provision" or "maintenance", but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, "within the iddat period". If the provisions are so read, the Act would exclude from liability for post-iddat period maintenance to a man who has already discharged his obligation of both "reasonable and fair provision" and "maintenance" by paying these amounts in a lump sum to his wife, in addition to having paid his wife's mahr and restored her dowry as per section 3(1)(c) and 3(1)(d) of the Act. The precise point that arose for consideration in Shah Bono case was that the husband had not made a "reasonable and fair provision" for his divorced wife even if he had paid the amount agreed as mahr half a century earlier and provided iddat maintenance and he was, therefore, ordered to pay a specified sum monthly to her under section 125, Criminal Procedure Code This position was available to Parliament on the date it enacted the law but even so, the provisions enacted under the Act are "a reasonable and fair provision and maintenance to be made and paid" as provided under section 3(1)(a) of the Act and these expressions cover different things, firstly, by the use of two different verbs - "to be made and paid to her within the iddat period, it is clear that a fair and reasonable provision is to be made while maintenance is to be paid, secondly, section 4 of the Act, which empowers the Magistrate to issue an order for payment of maintenance to the divorced woman against various to her relatives, contains no reference to "provision". Obviously, the right to have, "a fair and reasonable provision" in her favour is a right enforceable only against the woman's former husband, and in addition to what he is obliged to pay as "maintenance". Obviously, the right to have, "a fair and reasonable provision" in her favour is a right enforceable only against the woman's former husband, and in addition to what he is obliged to pay as "maintenance". A comparison of sections 3(1)(a) and 3(3) with section 125, Criminal Procedure Code will make it clear 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 the Supreme Court herein than the one provided under the Code of Criminal Procedure deprives them of their right, loses its significance. Even under the Act, the provisions of section 125, Criminal Procedure Code 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, Criminal Procedure Code would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional. As on the date the Act came into force the law applicable to Muslim divorced women was as declared by this Court in Shah Bono case, so to find out the personal law of Muslims with regard to divorced women's rights, the starting point should be Shah Bono case and not the original text or any other material all the more so when varying versions as to the authenticity of the source are shown to exist. That declaration was made after considering The Holy Quran, and other commentaries or other texts. When a Constitutional Bench of this Court analysed Suras 241-42 of Chapter II of The Holy Quran and other relevant textual material, it is not open to the Court to now to re-examine that position and delve into a research another conclusion. 10. That declaration was made after considering The Holy Quran, and other commentaries or other texts. When a Constitutional Bench of this Court analysed Suras 241-42 of Chapter II of The Holy Quran and other relevant textual material, it is not open to the Court to now to re-examine that position and delve into a research another conclusion. 10. In view of forgoing, the "Court has held that the provisions of the Act of 1986 is not inconsistent with the provisions of section 125 of Criminal Procedure Code and held that even after commencement of the Act of 1986 the provisions of section 125 of Criminal Procedure Code would still be attracted. The Magistrate has conferred the power to make appropriate provisions of maintenance which could be earlier granted by the Magistrate under section 125 of Criminal Procedure Code continues, even under the Act of 1986 to a divorced Muslim wife. It has also been held that the law laid down in the case of Shah Bono Begum (supra) relying upon the Ayat and Suras of Holy Quran, makes it clear that even under Muslim Personal Law the payment of maintenance to a wife is not limited up to the Iddat period, it may be paid even after the period of Iddat till her remarriage. While interpreting the word "within" the period of "Iddat as specified under section 3(1)(a) of the Act, held it would be "during" or "for" cannot be accepted, meaning thereby of the word is "within" or "on or before" and not "beyond". Thus, even after expiry of the period of Iddat, the husband is bound to pay the maintenance to wife if he fails to do so then the wife is entitled to get an order as per section 3(3) of the Act of 1986. Thus, it is clear that the payment of maintenance to a wife is not limited up to the Iddat period but payable thereafter also till the divorced Muslim wife remarry. The said judgments of the Hon'ble Apex Court have been considered in the case of Iqbal Bano (supra) and laid down the law as under: 3. The learned Magistrate held that there was no material to substantiate the plea of divorce and accordingly maintenance was granted. Order was challenged by filing a revision before the learned Additional Sessions Judge. The said judgments of the Hon'ble Apex Court have been considered in the case of Iqbal Bano (supra) and laid down the law as under: 3. The learned Magistrate held that there was no material to substantiate the plea of divorce and accordingly maintenance was granted. Order was challenged by filing a revision before the learned Additional Sessions Judge. Stand of the respondent was that after enactment of the Muslim Women (Protection of Plights on Divorce) Act, 1986 (in short "the Act"), petition under section 125, Criminal Procedure Code was not maintainable. It was also stated that not only in the reply to the notice, was there mention about the utterance of the words "talaq" "talaq" "talaq", there was mention in the written statement also, amounting to divorce. Learned Additional District and Sessions Judge accepted the plea. He held that after the enactment of the Act, petition by any married Muslim woman under section 125, Criminal Procedure Code is not maintainable. Such woman can claim maintenance under the Act and not under Criminal Procedure Code. It was further held that mention was made in the written statement about the divorce purportedly 30 years back and the mentioning about this fact in law amounted to divorce. Accordingly, order of the learned Magistrate was set aside. The High Court dismissed the writ petition summarily and observed as follows: Heard learned counsel for the revisionist. The learned Additional District and Sessions Judge has committed no illegality in modifying the order passed by the Magistrate in declining the maintenance after the date of divorce. The view expressed by the First Revisional Court that no Muslim woman can maintain a petition under section 125, Criminal Procedure Code is clearly unsustainable. The Muslim Woman (Protection of Rights on Divorced) Act, 1986 only applies to divorced woman and not to a woman who is not divorced. Furthermore, proceedings under section 125, Criminal Procedure Code are civil in nature. Even if the Court noticed that there was a divorced Muslim woman who had filed an application under section 125, Criminal Procedure Code, it was open to the Court to treat the same as a petition under the 1986 Act considering the beneficial nature of the legislation, especially since proceedings under section 125, Criminal Procedure Code and claims made under the Muslim Women Act are tried by the same Court. 6. 6. The dismissal of the revision petition by the High Court in the manner done is clearly unsustainable. The absence of these reasons has rendered the High Court's order unsustainable. 11. In the aforesaid, the Apex Court has expressed the view that Muslim Women can maintain a petition under section 125 of Criminal Procedure Code. The Act of 1986 applies to the divorced women and not to a woman who is not divorced. The proceedings under section 125 of Criminal Procedure Code are civil in nature. In case the Court noticed that an application has been made by divorced Muslim woman under section 125 of Criminal Procedure Code, it is open to the Court to treat the same with the petition under the provisions of the Act and decide it protecting the rights of such Muslim woman. 12. Thereafter the Apex Court in the case of Shabana Bono (supra) has further considered the judgment of Danial Latifi (supra) and Iqbal Bono (supra) and held that the learned Single Judge was wholly confused with regard to different provisions of Muslim Act and the Family Courts Act and Criminal Procedure Code and was wholly unjustified to reject the application filed by the petitioner. 13. In view of the discussions made hereinabove, it is clear that after commencement of the Muslim Women (Protection of Rights on Divorce) Act, 1986 the applicability of section 125 to 128 of Criminal Procedure Code is not excluded. It is the option to the parties to take recourse under section 125 to 128 of Criminal Procedure Code even on filing an application under section 3(2) of the Act of 1986. Bare reading of section 5 of the Act of 1986, if the Muslim divorced woman or husband, as the case may be, on notice on the first date of hearing opted to take recourse or want to proceed under sections 125 to 128 of Criminal Procedure Code then the Court cannot restrict them from the said recourse, and can not direct them to take recourse only under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. In addition to the aforesaid while upholding the validity of the said Act by the constitutional Bench judgment of this Court in the case of Danial Latifi (supra) the previsions of section 125 of Criminal Procedure Code has been compared with towards the reasonableness of the provisions of the said Act and concluded as under: i) A Muslim, husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of section 3(1)(a) of the Act. ii) 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. iii) 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. iv) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India. 14. It is to be noted that the law laid down in the judgment of Shah Bono Begum (supra) by the Constitutional Bench of the Apex Court has been approved while declaring the Act of 1986 as intra vires. In the case of Danial Latifi and another (supra) the Hon'ble Apex Court concluded that under the Act of 1986 in section 3(1)(a) words "reasonable and fair provision" and "maintenance" are having two distinct areas and further referring section 4thereof held that to make a "reasonable and fair provision" is different than "maintenance" awardable to divorced Muslim wife by a husband. Section 4 further offers a reasonable provision for maintaining a divorced Muslim wife by the family members or by the Wakf Board as the case nay be, in the circumstances prevalent so. Section 4 further offers a reasonable provision for maintaining a divorced Muslim wife by the family members or by the Wakf Board as the case nay be, in the circumstances prevalent so. The ratio of the said two decisions have been reiterated in the case of Iqbal Bono and Shabana Bano (supra) by the Supreme Court as mentioned herein above. Thus, to conclude as per the said precedent and in the light of the codified provisions of the Act of 1986, it is to be held that hike application filed by a divorced Muslim woman under section 3(2) of the Act would not debar her to take recourse of section 125 to 128 of Criminal Procedure Code which is a secular provision irrespective to religion or caste. In case the application has been filed by a divorced Muslim woman under section 3(2) of the Act and on issuance of the notice to the husband, on such application on the first date of hearing, as per declaration or affidavit in writing it be decided accordingly, by the Magistrate. This confers that on submitting an application, the Magistrate shall proceed according to the option of either party. The transitional provision made in section 7 do not affect the provision of section 5 of the Act because the transitional provision is only to deal the contingency regarding pendency of the application under section 125 of Criminal Procedure Code on the date of commencement of the Act subject to section 5 of the Act of 1936. 15. In view of forgoing discussion and looking to the facts of the present case, it is apparent that the applicant has filed an application under section 127 of Criminal Procedure Code seeking alteration of the allowance awarded to her by the trial Court about two decades before on an application under section 125 of Criminal Procedure Code. It is not brought on record that after service of notice, husband has submitted any option or declaration to opt for provisions of the Act of 1986. In such circumstances, the wife herself opted to proceed as per section 125 to 128 of Criminal Procedure Code, however, the Court cannot direct that such application is not maintainable in view of commencement of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. 16. In such circumstances, the wife herself opted to proceed as per section 125 to 128 of Criminal Procedure Code, however, the Court cannot direct that such application is not maintainable in view of commencement of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. 16. In view of analytical detail discussions made hereinabove referring various provisions of the Act of 1986, which are considered in various judgments of the Hon'ble Apex Court, including the two Constitutional Bench judgments, referred herein above, this Court is bound by the ratio laid down in the said judgments of the Apex Court. As per Article 141 of the Constitution of India law declared by the Supreme Court is binding on all Courts. It includes the High Courts and subordinate Courts. However, the judgments of this Court in the cases of Abdul Rashid (Dr.) vs. Mst. Farida, 1994 MPLJ 583 , Julekha Bi vs. Mohammad Fazal, 1999(2) MPLJ 64 , Munni alias Mubarik vs. Shahbaz Khan, reported in 2002(2) MPLJ 340 are hereby ignored. However, the findings and the orders passed by the trial Court and revisional Court relying upon the judgments of this Court holding that the application under section 127 filed by the applicant is not maintainable, are hereby set aside. 17. Looking to the facts of the present case wherein an amount of Rs. 125/- towards maintenance has been awarded to the applicant/wife by the Judicial Magistrate First Class as per order dated 15-10-1985 on an application under section 125 of Criminal Procedure Code the application under section 127 of Criminal Procedure Code has been filed by the wife on 12-1-2007 which is held as not maintainable by the trial Court. Thus, after two and half decades if the application for alteration of the allowance is relegated for decision of the trial Court, it would again take some time for decision, which would riot be justifiable for a divorced wife who is waiting for alteration of amount from about half of her life span. Thus, in my considered opinion the amount of maintenance can be quantified by this Court in the facts and circumstances of the case. 18. It is seen from the record that the applicant/wife is residing separately after the decree of divorce granted by the Court. The husband has remarried and enjoying his life with the second wife. Thus, in my considered opinion the amount of maintenance can be quantified by this Court in the facts and circumstances of the case. 18. It is seen from the record that the applicant/wife is residing separately after the decree of divorce granted by the Court. The husband has remarried and enjoying his life with the second wife. As per the averments of the application filed in the year 2007, he was earning more than Rs. 10,000/- per month, therefore, the demand of Rs.3,000/- has been prayed for, however, in the considered opinion of this Court, the wife is residing separately with a justifiable cause from her former husband and in the facts and circumstances of the case looking to the status of the husband who is now living with the second wife an amount of Rs. 2,000/- for maintenance deserves to be awarded to the applicant/wife. In the facts and circumstances of the present case, it is directed that, the said amount of maintenance would be payable from the date of the order passed by the trial Court. Resultantly, this petition filed by the applicant wife stands allowed. The order dated 6-10-2009 passed by the trial Court as well as the revisional Court dated 9-2-2011 are hereby set aside. The applicant is held entitled to receive an amount of Rs. 2000/- per month towards maintenance from the date of the order passed by the trial Court. The applicant would also be entitled for the cost which is quantified as Rs. 3000/-.