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Madhya Pradesh High Court · body

2015 DIGILAW 914 (MP)

AZMA SULTAN v. AUSAF AHMAD KHAN

2015-09-01

VANDANA KASREKAR

body2015
JUDGMENT : 1. The applicants have filed this Civil Revision challenging the order dated 21-7-2006 passed by 2nd Additional Sessions Judge, Damoh in Criminal Revision No. 122/2005 thereby rejecting the claim of applicant No. 1 for maintenance. 2. Brief facts of the case are that applicant No. 1 is the wife of the respondent. The marriage between applicant No. 1 and the respondent was solemnized in the year 1990 in accordance with the custom and rites of Muslim Law. Out of the said wedlock, applicants No. 2 to 4 were born. The allegation of applicant No. 1 is that respondent thrown out her from her matrimonial house on 20-8-2003 and since then applicant No. 1 along with her three daughters are residing with her parents. Thereafter the applicants filed an application under section 125 of Criminal Procedure Code for grant of maintenance of Rs. 3,000/- per month to each of the applicants. The applicants in their application filed under section 125 of Criminal Procedure Code, has pleaded that the respondent/husband is having business of sale of milk and he is also T.V. And Radio Instructor in I.T.I., Govindpura, Bhopal wherefrom he is having a salary of Rs. 20,000/- per month as well as he is earning Rs. 1,000/- per day from the business of dairy. 3. The respondent/husband filed his reply and admitted the marriage and birth of three daughters but has alleged that applicant No. 1 leading life of adultery. He further alleged that applicant No. 1/wife has always gone to her parents house. He also alleged that applicant No. 1 has independent source of income. It is alleged by the respondent that he has divorced applicant No. 1 on 23/11/2004 before Notary and, therefore, she is not entitled to get maintenance under section 125 of Criminal Procedure Code. 4. The trial Court vide its order dated 17-10-2005 allowed the application filed by the applicants and directed the respondent to pay Rs. 1,000/- to each of the applicants towards their maintenance. Against the order passed by the trial Court, the respondents filed a revision before learned 2nd Additional Session Court who has rejected the maintenance granted by the trial Court to applicant No. 1 on the ground that she is divorced Muslim lady and maintained the order of maintenance in favour of applicants No. 2 to 4. Against the order passed by the trial Court, the respondents filed a revision before learned 2nd Additional Session Court who has rejected the maintenance granted by the trial Court to applicant No. 1 on the ground that she is divorced Muslim lady and maintained the order of maintenance in favour of applicants No. 2 to 4. Being aggrieved by the order dated 21-7-2006 passed by 2nd Additional Sessions Judge, Damoh, the applicants have filed the present revision before this Court. 5. Learned counsel for the applicants submits that the revisional Court has erred in refusing the maintenance to applicant No. 1 on the ground that being a divorced lady she is not entitled to get the maintenance under section 125 of Criminal Procedure Code after the period of Iddat and, therefore, the revisional Court has refused to grant maintenance in favour of applicant No. 1. Learned counsel for the applicants has relied upon the judgment passed by the Apex Court in the case of Shabana Bano vs. Imran Khan, (2010) 1 SCC 666 and has submitted that in the said judgment, the Apex Court has held that a Muslim woman entitlement to maintenance continues even in post-Iddat period as long as she does not remarry. He further argued that in the present case, applicant No. 1 has not remarried and, therefore, she is entitled to get maintenance and, thus, the revisional Court has committed error in refusing the grant of maintenance in favour of applicant No. 1. 6. Nobody appeared on behalf of the respondent, though served. 7. I have heard learned counsel for the parties and perused the record. From perusal of the record, it appears that applicant No. 1 and respondent had entered into the marriage in the year 1990 and applicant No. 1 has given birth to three daughters. Some time after marriage, respondent started misbehaving with the applicant No. 1 and thrown her out from the matrimonial house and, therefore, the applicant No. 1 has started living separately with her three daughters in her parents house. From the record as well as the evidence, it is clear that applicant No. 1 has not remarried. 8. Hon'ble the Apex Court in the case of Shabana Bano (supra) in paragraphs 23 and 24 has held as under : "23. From the record as well as the evidence, it is clear that applicant No. 1 has not remarried. 8. Hon'ble the Apex Court in the case of Shabana Bano (supra) in paragraphs 23 and 24 has held as under : "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 woman. 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 of Criminal Procedure Code after the expiry of period of Iddat also, as long as she does not remarry. As a necessary consequence 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." 9. From the plain reading of the judgment delivered by Hon'ble the Apex Court, it is clear that a divorced Muslim woman is also entitled to get maintenance from divorced husband as long as she does not remarry. In the present case, the applicant No. 1 has not remarry and, therefore, she is certainly entitled to get the maintenance. Thus, the revisional Court has committed an error in refusing to grant the maintenance to applicant No. 1. 10. Accordingly, the revision is allowed and the impugned order dated 21-7-2006 passed by the revisional Court, so far as by which the revisional Court has refused to grant maintenance to applicant No. 1 is concerned, is hereby set aside and the order passed by the trial Court is hereby restored.