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2016 DIGILAW 1036 (CAL)

Hasna Banu Bibi v. Sundar Ali Sk.

2016-12-16

INDRAJIT CHATTERJEE

body2016
JUDGMENT : Indrajit Chatterjee, J. 1. This is an application filed under Section 401 read with Section 482 of the Code of Criminal Procedure in which the judgment and order dated June 19, 2013 passed by the learned Additional Chief Judicial Magistrate, Kalna, District – Burdwan, in connection with Misc. Case No. 98 of 2002 has been assailed before this Court wherein the said Court was pleased to allow in part the application filed by this petitioner under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the said Act of 1986) and the petitioner was awarded an amount of Rs.1001/- as ‘Den Mohar’ (dower money) to be claimed from her ex-husband that is the present opposite party. The opposite party was further directed to pay Rs.9000/- to the petitioner towards the value of the articles of marriage given to her during her marriage. Thus, this opposite party is suffering a decree to the tune of Rs.10,001/-. 2. It may be mentioned that assailing the order of the learned Additional Chief Judicial Magistrate, Kalna as passed in Misc. Case No.98 of 2002 one revisional application was preferred by the opposite party ex-husband before the learned Additional Sessions Judge, Kalna which was registered as Criminal Motion No.15 of 2013. As per order of this court dated 30.10.2014 this court ordered that the said revisional application will be decided along with this CRR and the records of the said revisional application was call for and such records have been duly received. 3. Thus, through this order this court is not only disposing of CRR No.2709 of 2013 but also Criminal Motion No.15 of 2013 of the Additional Sessions Judge, Kalna. 4. The relevant fact can be stated in brief thus: that the petitioner and the opposite party got married as per Muslim Rites and customs as back as on June 21, 1979 and they lived together as husband and wife till June 03, 1991 when the opposite party drove the petitioner out of her matrimonial home giving Talak to her on February 24, 1988. 5. The petitioner/wife filed one application under Section 125 of the said Code of 1973 in the Court of learned Sub-Divisional Judicial Magistrate, Kalna, District – Burdwan which was registered as Misc. 5. The petitioner/wife filed one application under Section 125 of the said Code of 1973 in the Court of learned Sub-Divisional Judicial Magistrate, Kalna, District – Burdwan which was registered as Misc. Case No.87 of 1991 and the said court vide order dated December 31, 1997 was pleased to reject the prayer for maintenance of the divorced Muslim wife with the observation that the petitioner be at liberty to avail the protection given under Sections 3 and 4 of the said Act of 1986. However, in that proceeding the learned Magistrate was pleased to allow the maintenance for the minor son to the tune of Rs. 200/- per month from the date of filing of the application that is from 16.08.1991. 6. The said order of the learned SDJM Kalna was challenged by both the petitioners and this opposite party respectively before the learned Additional Sessions Judge, 1st court at Burdwan which were registered as Criminal Motion No.32 of 1998 and 98 of 1998. The present petitioner assailed the said order both for denying her right to get maintenance under Section 125 of the Act of 1973 and also as regards the quantum of maintenance granted to her son. The opposite party ex-husband filed his revisional application (98 of 1998) on the ground as to why the order was directed to come effect form the date of filing. The prayer of the ex-husband opposite party was rejected by the first revisional court. The prayer of the present petitioner (32 of 1998) was however allowed in part and the quantum of the maintenance of the child was enhanced from Rs.200/- to Rs.400/-. The present petitioner also filed one Misc. Case No.188 of 2000 praying for enhancement of her son’s maintenance from Rs.400/- to Rs.1500/- per month but that was considered and rejected by the SDJM, Kalna as per order dated 30.12.2004. The learned first revisional court was however was not at all with the claim of the petitioner that she was entitled to get maintenance under Section 125 of the Act of 1973 and that portion of the claim was rejected. 7. The learned first revisional court was however was not at all with the claim of the petitioner that she was entitled to get maintenance under Section 125 of the Act of 1973 and that portion of the claim was rejected. 7. Against the said order of rejection this petitioner wife challenged the order before this court which was registered as Criminal Revision No. 2521 of 1998, who appeared in person before this court and the matter was decided in contest but the application was rejected vide order of this court dated 25th of August, 2000. This court put a stamp as per the said order that a Muslim wife is not entitled to get any maintenance under Section 125 of the Act of 1973. However, in that judgment of this court and the judgment of the trial court (passed in 87 of 1991) and also of the first revisional court the five bench decision of the apex court as passed in Mohammed Ahmed Khan vs. Shah Bano Begum and Ors. 1985 (2) SCC 556 : 1985 SCC Cri 245 was not taken care of. 8. The petitioner thereafter filed a petition under Sections 3 and 4 of the said Act of 1986 before the learned Additional Chief Judicial Magistrate, Kalna, District – Burdwan, being Misc. Case No. 98 of 2002 (now under challenge). 9. It may be noted that this opposite party/husband was employed in the Department of Consumer Affairs, Government of West Bengal and as per claim of Mr. Anand Keshari, learned Advocate appearing for the opposite party that he has retired from service during pendency of this revisional application. Mr. Ayan Bhattacharyay, learned Advocate, of the petitioner disputed such claim of retirement from service by the opposite party. He further submitted that this opposite party has been re-employed by the Government of West Bengal and he is now attached to the Office of the District Magistrate, Hooghly at Chinsurah. 10. On behalf of the petitioner Mr. Bhattacharyay, learned Advocate by taking me to the impugned judgment submitted that the learned Trial Court wrongly held that this petitioner wife is not entitled to get any maintenance under Sections 3 and 4 of the said Act of 1986 simply because her prayer was rejected under Section 125 of the said Code of 1973 and confirmed by this Court. Bhattacharyay, learned Advocate by taking me to the impugned judgment submitted that the learned Trial Court wrongly held that this petitioner wife is not entitled to get any maintenance under Sections 3 and 4 of the said Act of 1986 simply because her prayer was rejected under Section 125 of the said Code of 1973 and confirmed by this Court. He submitted that this is an instance of wrong application of law and in view of the subsequent development of law this petitioner is entitled to get maintenance under that Special Act of 1986. He further claimed that this petitioner estranged wife duly claimed maintenance under Sections 3 and 4 of the said Act 1986 to the tune of Rs.2000/- per month and this petitioner as PW-1 duly supported her case. He submitted that it is now an admitted position that this petitioner is one divorced Muslim wife. 11. Mr. Bhattacharyay cited a decision of the Apex Court in the case of Shabana Bano Vs. Imran Khan, reported in (2010) 1 SCC 666 , wherein the Apex Court held that Muslim divorced wife is entitled to maintenance from her ex-husband under Section 125 of the said Code of 1973 till her remarriage and further that she is entitled to maintenance even in post iddat period as long as she does not remarry. In that decision the Apex Court further held interpreting Section 125 of the said Code of 1973 that it being a beneficial legislation its benefits must accrue even to a divorced Muslim wife. He further submitted that in the decision referred to above the decision of the Apex Court as passed in (2001) 7 SCC 740 (Danial Latify vs. Union of India) was also referred and in Paragraph no.18 of this judgment [Shabana Bano (supra)] the court held that the points as to whether one divorced Muslim wife is entitled to get maintenance under Section 125 has been set at rest by the judgment passed by the Apex Court in Danial Latify (supra) wherein Paragraph no.30 the court observed that the purpose, object and scope of Section 125 Cr.P.C is to prevent vagrancy by compelling those who are under and obligation to support those who are unable to support themselves. In paragraph no.32 the court held that as on the date the Act came into force the law application to Muslim divorced woman was already declared by the Apex Court in Shah Bano Begum (supra). 12. On behalf of the opposite party/ex-husband it is submitted by Mr. Anand Keshari, learned Advocate that this opposite party duly assailed the order of the learned additional judicial magistrate passed in Misc. Case No. 98 of 2002 through the Criminal Motion No.15 of 2013. He further submitted that the petitioner swallowed the order of this Court as passed in Criminal Revision No. 2521 of 1998 wherein this Court categorically held that the divorced Muslim wife is not entitled to get any maintenance under Section 125 of the said Code of 1973 and that the petitioner did not file any review petition as against the said order and did not take up the matter before the Apex Court. Thus he submitted that the said judgment has attained finality and the judgment passed by the learned Sub-Divisional Judicial Magistrate as passed in Misc. Case No. 87 of 1991 also become final and this matter cannot be reiterated in the year 2016. 13. He further submitted that when the criminal revisional application was decided by this Court the judgment of the Apex Court as passed in the case of Shah Bano Begum & Ors. (supra) was already delivered giving right to one divorced Muslim wife to get maintenance under Section 125 of the said Code of 1973 but that was not cited by this court while disposing of the criminal revisional application. Mr. Keshari also referred to the decision of the Apex Court as passed in Danial Latify (supra) particularly to paragraph no.37 wherein the Apex Court while upholding the validity of the act held that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously include her maintenance as well and such reasonable and fair provision will extend beyond the iddat period must be made by the husband within the iddat period in terms of Section 3 (1)(a) of the Act and the Apex Court further reiterated that liability of Muslim husband to his divorced wife arising under Section 3 (1) (a) of the Act to pay maintenance is not confined to iddat period. 14. Mr. 14. Mr. Keshari fairly submitted that it is settled law now that a Muslim divorced wife is entitled to get maintenance from her ex-husband even after the iddat period under the provisions of Sections 3 and 4 of the said Act of 1986 but he further submitted by taking me to the petitioner giving rise to Misc. Case 98 of 2002 to say that nothing was pleaded to convince this Court that the petitioner is unable to maintain herself. 15. He further submitted that this petitioner is enjoying the land, homestead property of her ex-husband including the fruit bearing trees and her son is now employed, who is in a position to give some financial help to her mother. He reiterated that there is nothing wrong in the judgment passed by the learned Trial Court as the petitioner failed to bring out a case before the said Court that she was unable to maintain herself. 16. In reply Mr. Bhattacharyay submitted that this petitioner is entitled to get maintenance from her ex-husband as per the provisions of Sections 3 and 4 of the said Act of 1986 and in view of the judgment of the Apex Court as passed in the case of Shabana Bano (Supra) as referred to above. 17. I have gone through all the judgments referred to above including the judgment passed by this court. The judgment passed by this court, I repeat did not consider the decision of Shabana Bano (Supra) disposed of much earlier by the Apex Court. 18. The decision of the Apex Court as passed in Danial Latify (supra) cannot be a savior to the ex-husband. The argument of Mr. Keshri that this petitioner failed to make out a case before the learned trial court that she is not in need of maintenance is not convincing to this court. This petitioner fought legal battle since 1991 and unless one wife in distressed she cannot take up such long journey to get her grievance redressed. The fact that this petitioner/wife is enjoying the usufructs of the property of the opposite party is being taken care of in this judgment. 19. This court on scrutiny of the impugned judgment is satisfied that his petitioner failed to prove that actually the dower money was Rs.10,000/- and the court rightly assessed it to be Rs.1,001/-. The fact that this petitioner/wife is enjoying the usufructs of the property of the opposite party is being taken care of in this judgment. 19. This court on scrutiny of the impugned judgment is satisfied that his petitioner failed to prove that actually the dower money was Rs.10,000/- and the court rightly assessed it to be Rs.1,001/-. The learned trial court also rightly assessed the value of the list of the articles given at the time of marriage to be Rs.9,000/-. Regarding the claim of the opposite party that Rs.9000/- was paid in extra while paying the maintenance for his son ‘Selim’ as noted in Order No.30 dated 30.12.2004 in Misc. Case No.188 of 2000 of the Sub-Divisional Judicial Magistrate, Kalna cannot be adjusted in the proceeding under Sections 3 and 4 of the Act of 1986. The claim of the opposite party in this regards as made in that Criminal Motion No.15 of 2013 is answered in the negative. Thus, Exhibit-M of Misc. Case No.98 of 2002 cannot be of any help to the opposite party. 20. The settled principle of law as passed in Shabana Bano (Supra) duly considered in Danial Latify (supra) is that a muslim divorced wife is entitled to get maintenance under Section 125 of the Code of Criminal Procedure. The matter is not in issue before this court as the judgment assailed before this court was passed under Sections 3 and 4 of the Act of 1986. This court relying on the decision of Shabana Bano (Supra) is satisfied that this petitioner is entitled to get maintenance/fair provision for the future of the divorced wife. This being so this court is satisfied that the learned trial court was wrong in rejecting the application of the petitioner on that score that she was not entitled to get any maintenance after the Iddat period which is totally contrary to the decision of the Apex Court as passed in Shabana Bano (Supra). This court on reading and rereading the evidence adduced by the parties, considering the argument put forward by the learned counsels and also status of the parties this court is satisfied that the learned trial court erred in denying the maintenance even to the tune of Rs.2,000/- per month only in favour of the ex-wife. 21. This court on reading and rereading the evidence adduced by the parties, considering the argument put forward by the learned counsels and also status of the parties this court is satisfied that the learned trial court erred in denying the maintenance even to the tune of Rs.2,000/- per month only in favour of the ex-wife. 21. This opposite party ex-husband was one government employee, however it has not been proved before this court by cogent evidence that he has been reemployed. Be that as it may, this court can say that this opposite party/husband has enough means to pay rupees a small amount of Rs.2,000/- per month as maintenance for his ex-wife. This court in assessing such maintenance amount has taken into consideration the fact that this petitioner is enjoying the usufructs of some landed property of her ex-husband. 22. I may be permitted to reiterate that the question giving Talak by the husband to this petitioner cannot now be agitated in view of the previous judgments in between the parties. 23. Thus, the impugned order passed by the learned Additional Chief Judicial Magistrate, Kalna in Misc. Case No.98 of 2002 is hereby set aside so far it relates to negation of maintenance to the tune of Rs.2000/- per month. At the same time the prayer of the present opposite party as made out in Criminal Motion No.15 of 2013 is considered and rejected on the ground stated above. 24. Thus, in view of the aforesaid discussion so long made, this court is satisfied that this petitioner is entitled to get maintenance from her ex-husband to the tune of Rs.2,000/- per month as claimed by the petitioner from the date of filling of Misc. Case No. 98 of 2002. The prayer of Mr. Bhattacharyay that this court has power to enhance this amount from Rs.2,000/- per month to any higher amount cannot be conceded by this court as there is no such prayer before this court and no such case was made out before the trial court. However, the matter may be left open to be decided if any case for enhancement of the said maintenance is filed. It may be noted that the maintenance was claimed as back as in the year 2002 when the money value of Rs.2000/- was at least four fold compare to today’s valuation. 25. However, the matter may be left open to be decided if any case for enhancement of the said maintenance is filed. It may be noted that the maintenance was claimed as back as in the year 2002 when the money value of Rs.2000/- was at least four fold compare to today’s valuation. 25. The opposite party must also clear up at a time Rs.10001/- (Rs.1001/-+Rs.9000/-) within one month from this day otherwise it may be put in execution by the petitioner. 26. This order will take effect from the date of filing of Misc. Case No.98 of 2002 that is 06.07.2002. The opposite party must clear the arrear maintenance that is Rs.3,46,000/- in twelve equal monthly installments. The opposite party must go on paying the current maintenance since January 2017 on the 7th day of that month and on the 7th day of the consecutive months. 27. Failure to pay the arrear maintenance or current maintenance will give right to the petitioner to pray for execution of the order and in extreme case the learned trial court may issue warrant of arrest to secure such payment. 28. The department is directed to communicate this order to the learned trial court along with the lower court record of that court including file no. ‘A’ and ‘C’ of Misc. Case No.98 of 2002. 29. The department is also directed to communicate another copy of this order along with the record of Criminal Motion No.15 of 2013 to the Additional Sessions Judge, Kalna, District-Burdwan (containing file No. ‘A’ and ‘B’ of that case) which was called for vide memo no.6238-Cr (A) dated 20.11.2014 of this court from the First Revisional Court being the Additional Sessions Judge, Kalna, District-Burdwan.