Wahidkhan S/O. Majidkhan vs Badreshmin W/O. Wahidkhan And ...
2003 Latest Caselaw 679 Bom

JUDGMENT

P.S. Brahme, J.

1.This revision application is filed by applicant Wahidkhan Majidkhan challenging the order passed by the Additional Sessions Judge, Akola in criminal revision application no. 271 of 1998 on 7.4.99 whereunder the order passed by the Judicial Magistrate, Court no.11, Akola in Misc. Criminal case no.169 of 1997, dated 5th August, 1998 is set aside. In effect, the prayer of the applicant for cancellation of maintenance has been rejected.

2.We have heard Mr. B.N.Mohta, the learned counsel for Non-applicant no.1. None for the applicant.

3.Admittedly, the applicant was husband of Non-applicant no.1. Non-applicant no.1 had filed Misc. Criminal case no.315 of 1993 in the Court of Judicial Magistrate, First Class, Akola claiming maintenance u/s. 125 of the Code of Criminal Procedure. The lower Court allowed the application and granted maintenance of Rs. 200/- p.m. to the non-applicant. The applicant had challenged that order of maintenance by preferring revision application before the Sessions Court. Admittedly, that revision application was dismissed and the order passed by the Magistrate granting maintenance came to be confirmed. Thereafter, the applicant gave divorce to the non-applicant on 31st January, 1995 and on the basis of that, he filed Misc. Criminal case no. 169 of 1997 in the Court of Judicial Magistrate, First Class, Court no. 11, Akola, u/s. 127 of the Code of Criminal Procedure for cancellation of maintenance awarded to the wife. The learned Magistrate allowed the application by his order dtd. 5th August, 1978 and thereby the order granting maintenance to non-applicant no.1 was set aside. Non-applicant no.1 challenged that order by preferring criminal revision no.271 of 1998 before the Sessions Judge, Akola, who, by his order dt. 7.4.99, set aside the order passed by the Magistrate in criminal case no.169 of 1997. This impugned order is under challenge.

4.Mr. Mohta, the learned counsel appearing for Non-applicant no.1, submitted that the Sessions Court was justified in setting aside the order as there was no justification for cancellation of the order taking recourse to section 127 of Cr.P.C. merely because the applicant gave divorce to Non-applicant no.1. The Sessions Judge has observed that the non-applicant has denied that the applicant has given divorce. On the contrary, the contention of the wife-Non-applicant no.1 was that she still was legally wedded wife of the applicant and that she has not received any Mehar amount and Dahej articles. It was for all these reasons that the wife denied the claim of the applicant for cancellation of maintenance. Mr. Mohta, the learned counsel appearing for Non-applicant has submitted that the Sessions Court was justified in setting aside the order passed by the Magistrate cancelling the order of maintenance. He submitted that even Muslim divorcee is entitled to claim maintenance from her husband. Her claim of maintenance taking recourse to the provisions u/s. 125 of the Code of Criminal Procedure laid down in the Muslim Women (Protection of Rights on Divorce) Act, 1986.

5.The learned Sessions Judge has observed that under the Muslim Women Act, a divorced woman is entitled for a reasonable and fair provision from her former husband. Reasonable and fair provision includes provision for her future needs, clothes, food and other articles for her livelihood. Not only that, she is also entitled to have reasonable and fair future maintenance. So far as the case before hand is concerned, the learned Sessions Judge took the view that initially when the maintenance was granted by the Magistrate, the applicant admitted non-applicant to be his legally wedded wife. Though he challenged the order granting maintenance by preferring revision application before the Sessions Court, till then he did not dispute the fact that non-applicant no.1 was his legally wedded wife. But, after his revision application came to be rejected, he preferred application u/s. 127 of Cr.P.C. before the Magistrate for cancellation of maintenance on the ground that he has given divorce to non-applicant no.1. The learned Sessions Judge has rightly observed that the applicant sought for cancellation of the order of maintenance only on the pretext of giving divorce to non-applicant no.1. In other words, what was in the mind of the applicant in giving divorce to non-applicant no.1 was to evade the liability to pay maintenance to non-applicant no.1. That is not the object of legislation in bringing on the statute book Muslim Women (Protection of Rights on Divorce) Act of 1986. Apart from that, non-applicant no.1 has specifically denied the factum of divorce alleged to have been given by the applicant. The learned Sessions Judge has observed that merely because divorce has been given by the applicant, that itself is not sufficient to disentitle non-applicant no.1 to claim maintenance, much less to cancel the order of maintenance already passed by the competent Court u/s. 125 of the Code of Criminal Procedure.

6.The learned Sessions Judge was justified in passing the impugned order in view of the Full Bench decision of this Court in Dagadu Chotu Pathan .vs. Rahimbi Dagadu Pathan and others, 2002 (3) Mh.L.J. 602. The Full Bench of the Bombay High Court considering the question as to whether a Muslim husband has a right to divorce his wife without reasons and at his mere whim and caprice and whether Muslim Law mandates pre-divorce reconciliation between the parties. The Honble Judges observed in para 22 that : " A divorce by the husband is Talaq and it has oral as well as written forms. The oral form of Talaq can be effected in three modes viz.Talaq-e-Ahsan, Talaq-e-Hasan, Talaq-ul-Biddat or Talaq-e-Badai. The first two forms are conditioned and they are accepted to be more civilized but while resorting to any of these two forms there are conditions precedent and it is not that the husband is at his free will to resort to any of these modes at any time and without assigning any reasons. If the husband feels that his wife does not care for him, she is incompatible, she does not listen to him, she does not love him, she refused to cohabit with him, she engages in cruel behavior, she is unfaithful or for any other reason, he has the right to give Talaq to his wife but by following certain procedure."

The High Court, in the same para, detailed the procedure to be followed by the husband while resorting to any of these two forms for giving Talaq. Therefore, the Court observed that :

" Though it is the husband, who pronounces the divorce, he is as much bound by the decision of the judges as is the wife. This shows that the husband cannot repudiate the marriage at his will. The case must be first referred to two judges and their decision is binding. Talaq must be for reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by the arbitrators, one from the wifes family and the other from the husbands. "

7.In the case before hand, admittedly, the applicant came to have given divorce to his wife -Non-applicant no.1 only on the basis of pronouncement of Talaq unilaterally without there being making compliance of many other factors, much less making provision for future maintenance of the wife. If that is so, there was no justification for the trial Court to allow the application filed by the husband-applicant u/s. 127 of Cr.P.C. for cancellation of the order of maintenance. This was much more so when the wife-Non-applicant no.1 has denied the factum of divorce.

8.The fact that the applicant-husband filed application for cancellation of maintenance u/s. 127 of Cr.p.C. after giving so called divorce to Non-applicant no.1, though, initially maintenance was granted to Non-applicant no.1 on the premises that the applicant admitted Non-applicant no.1 to be his legally wedded wife who was unable to maintain herself and the applicant has refused and neglected to maintain her. This itself spell out the mala fides on the part of the applicant in giving divorce to the applicant. The view taken by the learned Magistrate while setting aside the order of maintenance that in the Muslim Women (Protection of Right on Divorce) Act, 1986 right to claim maintenance u/s. 125 of the Code of Criminal Procedure stood obliterated and that the only remedy available with her was to move the Court under the Muslim Women (Protection of Rights on Divorce) Act, cannot be sustained. I am fortified with the view taken into consideration by the Full Bench decision of this Court in Dagdu Chotu Pathans case (supra). Therefore, no error or illegality could be found in the order impugned passed by the Sessions Judge. In the result, there is no substance in this revision application. The same is dismissed.