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2015 DIGILAW 790 (GAU)

Mustafizur Rahman v. Rejina Begum

2015-06-22

PARAN KUMAR PHUKAN

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JUDGMENT AND ORDER : Paran Kumar Phukan, J. The judgment and order dated 07.04.2014 passed by the learned Additional Chief Judicial Magistrate, Morigaon in M.R. Case No. 275/2011 granting maintenance allowance of Rs. 3,000/- per month in favour of the respondent is the subject matter of challenge in this revision. 2. There is no dispute that the marriage between the petitioner and the respondent was solemnised according to Muslim Rites on 05.08.2007. The respondent alleged in her petition that soon after the marriage acrimony had started brewing in their marital relationship because of the torture both mental and physical meted out to her by the petitioner demanding dowry from her. Ultimately, she was driven out and she had to take shelter in the house of her parents. She claimed maintenance by filing an application under Section 125 Cr.P.C. The petitioner appeared and contested the claim and denied the allegation brought against him by the respondent. According to him, she voluntarily left his house and refused to come back which compelled him to divorce her by pronouncing talaq. 3. It was contended that since she has been divorced by the petitioner, she is not entitled to maintenance under Section 125 Cr.P.C. and the legal recourse available to her is under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act 1986. 4. Since, there is no dispute regarding the factum of divorce of the respondent by the petitioner, the pertinent question which came up for consideration before this Court is whether she is entitled to claim maintenance under Section 125 Cr.P.C. in view of the Provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986. 5. It is a settled law that the object of Section 125 Cr.P.C. is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves. In the Constitution Bench decision in Khatoon Nisa v. State of U.P. (2014) 12 SCC 646, the question before the Hon'ble Supreme Court was whether a Magistrate is entitled to invoke his jurisdiction under Section 125 of the Code to grant maintenance in favour of a divorced muslim woman. 6. In Shamim Bano v. Asraf Khan (2014) 12 SCC 636 , the Apex Court by referring to Khatoon Nisa (supra) observed as follows: "12. 6. In Shamim Bano v. Asraf Khan (2014) 12 SCC 636 , the Apex Court by referring to Khatoon Nisa (supra) observed as follows: "12. At this juncture, it is profitable to refer to another Constitution Bench decision in Khatoon Nisa v. State of U.P., (2014) 12 SCC 646, wherein question arose whether a Magistrate is entitled to invoke his jurisdiction under Section 125 of the Code to grant maintenance in favour of a divorced Muslim woman. Dealing with the said issue the Court ruled that subsequent to the enactment of the Act as it was considered that the jurisdiction of the Magistrate under Section 125 of the Code can be invoked only when the conditions precedent mentioned in Section 5 of the Act are complied with. The Court noticed that there having been no divorce in the eye of the law, he had the jurisdiction to grant maintenance under Section 125 of the Code. The said finding of the Magistrate had been upheld by the High Court. The Constitution Bench, in that context, ruled thus: 10. ......The validity of the provisions of the Act was for consideration before the Constitution Bench in the case of Danial Latifi v. Union of India, (2001) 7 SCC 740 . In the said case by reading down the provisions of the Act, the validity of the Act has been upheld and it has been observed that under the Act itself when parties agree, the provisions of Section 125 Cr.P.C. could be invoked as contained in Section 5 of the Act and even otherwise, the Magistrate under the Act has the power to grant maintenance in favour of a divorced woman, and the parameters and considerations are the same as those in Section 125 Cr.P.C. It is undoubtedly true that in the case in hand, Section 5 of the Act has not been invoked. Necessarily, therefore, the Magistrate has exercised his jurisdiction under Section 125 Cr.P.C. But, since the Magistrate retains the power of granting maintenance in view of the Constitution Bench decision in Danial Latifi case under the Act and since the parameters for exercise of that power are the same as those contained in Section 125 Cr.P.C. we see no ground to interfere with the orders of the Magistrate granting maintenance in favour of a divorced Muslim woman." 7. In the case in hand, no separate application under Section 3 of the protection of the Muslim Women (Protection of Rights on Divorce) Act 1986 has been filed. The principles laid down by the Apex Court in Danial Latifi v. Union of India (2001) 7 SCC 740 , Khatoon Nisa (supra), Shamim Bano (supra) clearly shows that the Magistrate has the power to grant maintenance under Section 125 Cr.P.C. even after an application is filed under the Muslim Act, since the Magistrate retains the power of granting maintenance in favour of the woman who is unable to maintain herself. 8. Having considered the submissions of the learned advocate appearing for the parties and having gone through the facts and circumstances of the case and also the observations of the Hon'ble Apex Court, I have no hesitation to hold that the Magistrate has the power to grant maintenance under Section 125 Cr.P.C. even to a muslim woman who has been divorced by her husband. 9. The learned Magistrate has granted maintenance allowance of Rs. 3000/- per month on consideration of the income of the petitioner. He is an employee of Irrigation Department, drawing a monthly salary of Rs. 12,000/13,000/- and he would be able to spare Rs. 3000/- per month for his wife. In my considered view, the learned Court below rightly granted maintenance to the petitioner which calls for no revisional interference. 10. For the reasons aforesaid, the revision stands dismissed. Interim order stands vacated. Send down the LCR along with the copy of the judgment to the Court below for information and necessary action.