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2014 DIGILAW 2659 (MAD)

M. Mohammad Ali Jinnah v. M. Balgees Beevi

2014-08-18

P.R.SHIVAKUMAR

body2014
Judgment 1. Notice before admission was given and the respondents have entered appearance through counsel. The arguments advanced by Mr. P. Senthur Pandian, learned counsel for the petitioner and Mr. K. Seemaraj, learned counsel for the respondents are heard. The copy of the impugned order of the Court below and the copies of the connected papers produced by the parties in the form of typed set of papers are also perused. 2. It is not in dispute that the revision petitioner married the first respondent and out of the wedlock they were blessed with a child who is none other than the second respondent. Due to difference of opinion and mutual distrust, the couple got separated and the attempts made by the Jamathars proved to be a failure as the wife was demanding to set up a separate residence for the petitioner, the first respondent and their child alleging some kind of harassment by the mother of the petitioner herein. However, the petitioner was not prepared to concede her demand. Accordingly, the gap widened and it resulted in the pronouncement of triple talaq by the petitioner herein. After the marital tie was snapped by the pronouncement of triple talaq, the petitioner did not make any provision for the maintenance of his erstwhile wife namely, the first respondent and his child namely, the second respondent. 3. Claiming that the first respondent was not having sufficient means to maintain herself and her child namely, the second respondent and that the petitioner having sufficient means to maintain them failed and neglected to do so, a petition came to be filed by the first respondent for herself and on behalf of the second respondent before the learned Family Court, Madurai under Section 125 of the Code of Criminal Procedure claiming an order against the petitioner herein directing payment of maintenance. 4. The learned Judge of the Family Court, after hearing, opining that the respondents herein did not have sufficient means to maintain themselves whereas the petitioner herein failed to maintain the respondents herein even though he was possessed of means to maintain them passed the impugned order on 06.12.2013 directing him to pay maintenance to the respondents at the rate of Rs.2,500/- per month for the maintenance of the first respondent and Rs.1,500/- per month for the maintenance of the child namely, the second respondent. 5. 5. Aggrieved by and challenging the said order, the husband namely, the revision petitioner has brought forth this Criminal Revision Case. The challenge made by him is two fold. They are as follows:- (i) The husband cannot be held liable to pay maintenance beyond the iddat period as per Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and (ii) The means/income of the revision petitioner has not been proved by sufficient evidence and still the learned Judge of the Family Court arbitrarily fixed a total sum of Rs.4,000/- to be paid to the respondents herein per month. 6. The first objection does not hold good in view of the authoritative pronouncement of the Hon'ble Supreme Court in Mohd. Ahmed Khan Vs. Shah Bano Begum reported in 1985 SCR (3) 844. It was held therein that Section 125 being a welfare legislation intending to benefit the wife including the divorced wife shall be applicable even to a divorced Muslim woman and that the provisions of the Act 25 of 1986 will not in any way alter the position of such divorced woman vis-a-vis the erstwhile husband of such woman. 7. Yet another attempt was sought to be made by making a reference to Section 5 of the above said Act and contending that the revision petitioner had not given his consent for the proceedings being governed by Sections 125 to 128 of the Code of Criminal Procedure. Such a contention is also liable to be rejected as the question of exercising the option under Section 5 shall arise only when the divorced wife makes an application under Section 3(2) of the Act 25 of 1986 and such an option contemplated under Section 5 of the said Act is irrelevant when the claim is made under Section 125 of the Code of Criminal Procedure. 8. Coming to the question of quantum, the main contention of the learned counsel for the revision petitioner is that the finding of the Court below is perverse insofar as such a finding regarding means of the husband was based on the assumption that he owns immovable properties, whereas all the properties were proved to be that of his mother. The law on this point has undergone drastic changes by the march of law. The law on this point has undergone drastic changes by the march of law. A person who is hale and healthy cannot be allowed to sit idle and contend that he does not have the income sufficient for his own maintenance and for maintaining his wife, children and aged parents. The husband who is not visited with any disability is expected to earn not only for himself but also for his wife and children who depend on him. In this case, if at all the revision petitioner was not having sufficient means to maintain himself, his wife and child, he ought not to have contracted the marriage with the first respondent and after having contracted the marriage, he ought not to have given birth to the second respondent. Apart from that the petitioner after getting rid of the respondents, admittedly contracted the second marriage. He would not have ventured to contract the second marriage when he was not having sufficient means to maintain himself, the erstwhile wife and his child. 9. If all these aspects are taken into consideration, this Court can come to a conclusion that the petitioner is no doubt capable of earning sufficient income not only for his maintenance but also for the maintenance of his present wife and also the maintenance of his past wife and his child born through the first respondent. Regarding the question of quantum, the amount awarded by the learned Judge of the Family Court shall be hardly sufficient for a woman to support herself and also to bring up her child with the dignity and status that is comparable to her status enjoyed by her while she was with the revision petitioner. Even as against the award of such meagre sum as maintenance, the petitioner has chosen to prefer this Criminal Revision Case challenging the order impugned in this Criminal Revision Case. This Court does not find any merit in it and the same deserves to be dismissed. Accordingly, the Criminal Revision Case is dismissed.