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Tripura High Court · body

2014 DIGILAW 120 (TRI)

Md. Abdul Kuddus v. Nazma Begam

2014-03-04

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta; C.J.:- The short but interesting question which arises in this petition, is whether a divorced Muslim wife is entitled to maintenance under Section 125 Cr.P.C. after the period of iddat is over. Briefly stated, that facts of the case are, that the respondent muslim wife filed a petition for grant of maintenance to herself and her daughter. The respondent raised a contention that the minor child was being paid maintenance @ Rs. 300/- per month, as decided by the village elders. He also stated that he had divorced his wife by executing a talaknama on 17.09.2000. The learned Trial Court vide order dated 07.06.2006 had directed the husband to pay maintenance @ Rs. 700/- per month to the wife and Rs. 500/- per month to the daughter i.e. @ Rs. 1200/- per month. The husband, being dissatisfied by the aforesaid order of the learned Sub Divisional Judicial Magistrate, Dharmanagar, North Tripura, has approached this Court in revision proceeding. 2. The learned Sub Divisional Judicial Magistrate, Dharmanagar, North Tripura, came to the conclusion that there was no legal divorce and, therefore, vide his order dated 07.06.2006, awarded maintenance under Section 125 Cr.P.C. It is this order which is under challenge before me. 3. A constitutional bench of the Apex court in Mohd. Ahmed Khan versus Shah Bano Begum and others, reported in (1985) 2 SCC 556 , after discussing the entire law on the subject and also dealing with the Personal Muslim Law held that a Muslim woman was entitled to maintenance under Section 125 Cr.P.C. The relevant portion of the judgment reads as follows: ...We have attempted to show that taking the language of the statute as one finds it, there is no escape from the conclusion that a divorced 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. 4. Shah Bano Begum's case, as this case is popularly known as, led to the Parliament intervening and passing the Muslim Women (Protection of Rights on Divorce) Act, 1986. 4. Shah Bano Begum's case, as this case is popularly known as, led to the Parliament intervening and passing the Muslim Women (Protection of Rights on Divorce) Act, 1986. In the introduction to the Act, it was stated that in Shah Bano Begum's case it was held that if a Muslim divorced woman is able to maintain herself, the husband's liability ceases after the expiry of the period of iddat but if she is unable to maintain herself even after the period of iddat she is entitled to have the recourse under Section 125 Cr.P.C. It was to dilute the judgment that this Act was passed by the parliament. 5. The constitutional validity of this Act was challenged in Danial Latifi and another versus Union of India reported in (2001) 7 SCC 740 . A Constitution Bench of the Apex Court upheld the Constitutional validity of the Act but summed up its conclusions in the following manner,- 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 iddad 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. (4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India. 6. 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. 6. Therefore, what the Apex court held was that a Muslim husband was liable to maintain his wife who had not remarried and was unable to maintain herself even after the period of iddat was over and he was duty bound to make a reasonable and fair provision for the maintenance of the divorced wife even after the period of iddat. The Apex court specifically held that the liability of the Muslim husband to his divorced wife does not cease on the completion of the iddat period. It was also held that the divorced Muslim women who were not re-married or who were not unable to maintain themselves after the iddat period could proceed to get maintenance under Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 from the husband or his relatives. Therefore, though the constitutional validity of the Act was upheld, the Apex court also clearly held that the Muslim husband was liable to provide reasonable maintenance towards his divorced wife even after the iddat period was over. In this judgment nowhere was it said that Section 125 Cr.P.C. will not apply to a Muslim wife. 7. In case there was any doubt left after Danial Latifi's case, the matter was set at rest by judgment of the Apex Court in Iqbal Bano versus State of UP and another reported in (2007) 6 SCC 785 , wherein the Apex court held,- 10. Proceedings under Section 125 Cr.P.C. 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.P.C. and claims made under the Act are tried by the same court. 8. The learned Single Judge of this Court in Smt. Alima Begum versus Md. Abdul Kadir passed in Crl. Rev. P. 73 of 2009, held as follows,- 29. Proceedings under Section 125 Cr.P.C. and claims made under the Act are tried by the same court. 8. The learned Single Judge of this Court in Smt. Alima Begum versus Md. Abdul Kadir passed in Crl. Rev. P. 73 of 2009, held as follows,- 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(1)(a) of the 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 Mano (supra). 9. In Shabana Bano versus Imran Khan reported in (2010) 1 SCC 666 the Apex court formulated the following question of law 10. The basic and foremost question that arises for consideration is whether a Muslim divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 Cr.P.C. and, if yes, then through which forum. Thereafter, after discussing the provision of the Muslim Act, the Family Court's Act and the Code of Criminal Procedure, the Apex court held that the divorced Muslim wife's petition under Section 125 Cr.P.C. would be maintainable before the Family Court as long as the wife does not re-marry. It was further held that the amount of interest to be awarded under Section 125 Cr.P.C. cannot be restricted for the iddat period only. In this behalf reference may be made to the following portion of the judgment of the Apex court,- 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 rejecting the appellant's revision. 23. 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 rejecting 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 125Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry. Thus, the Apex court has now clearly laid down that a Muslim woman even after divorce would be entitled to claim maintenance from her husband under Section 125 Cr.P.C. as long as she does not marry. In view of the above discussion, the present Criminal Revision petition is accordingly dismissed. Send down the LCRs forthwith.