Shaikh Mohamed S/O Shaikh Vajir ... vs Naseembegum W/O Sk. Mohamed And ...
2006 Latest Caselaw 733 Bom

JUDGMENT

Anoop V. Mohta, J.

1. The petitioner - husband has challenged the impugned order dated 19-9-1999 passed by the Family Court Aurangabad, in Petition No. E-789/1998 whereby the petitioner has been directed to pay maintenance amount of Rs. 300/- per month to the respondent - wife from the date of the application by holding that the petitioner has refused and neglected to maintain her and she is entitled to the maintenance even though the petitioner has given divorce to her.

2. The respondent had filed earlier Misc. Application No. 30/1996 under Section 125 of the Code of Criminal Procedure (Cr.P.C.) in the Court of the Judicial Magistrate, First Class, Gangapur (JMFC). The parties are governed by the Mohammedan Law. By the said order the JMFC had granted the maintenance in following terms.

1) The petition of the petitioner No. 2 Asma (minor) is granted totally from the date of filing this present petition till future period she is liable for maintenance. The respondent is ordered and directed to pay monthly maintenance @ Rs. 250/- p.m. to her towards her maintenance from the date of filing the present petition.

2) The petition for petitioner No. 1 is partly allowed.

The respondent is ordered and directed to pay monthly maintenance @ Rs. 300/- (Say rupees Three hundred) to the petitioner No. 1 towards her maintenance from the date of filing present petition till the date of divorce i.e. from July, 1994 to August, 1996 totally for 25 months at the rate of Rs. 300/- per month.

3) He is further ordered & directed to pay Rs. 300/- per month to her towards maintenance during the Iddat period from the date of divorce i.e. for three months from 26-8-1996 to 26-11-1996.

4) He is further ordered & directed to pay Mehar amount Rs. 786/- to the petitioner immediately.

5) He is further ordered & directed to pay Rs. 400/- towards the costs of this proceeding.

This order remained unchallenged therefore became final between the parties.

3. The petitioner, therefore, has raised objection to the second application in question filed by respondent No. 1 - wife under Section 125 of the Criminal Procedure Code on the ground that under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as "Muslim Women Act") respondent No. 1 - wife cannot claim for maintenance as a divorcee. The JMFC has already granted maintenance till the date of divorce on earlier such application and she has already accepted Iddat and Mahr amounts and therefore has no right to ask for maintenance by invoking the provisions of Section 125 of the Criminal Procedure Code again. The Family Court, however, has rejected the said objection on a foundation of Allabuksh Karim Shaikh v. Noorjahan Allabuksh Shaikh 1994 Mh.L.J. 1376, wherein, this Court has observed that a divorced wife has right to ask for maintenance from her husband and further that divorced wife is entitled for maintenance till re-marriage. Therefore, as respondent No. 1 has not performed second marriage after the divorce, she has right to claim maintenance from the petitioner, and therefore, granted maintenance of Rs. 300/- per month from the date of the application.

4. The relevant sections of the Muslim Women Act for the purpose of present petition are Sections 3, 4 and 5 which are reproduced herein;

3. Mahr or other properties of Muslim woman to be given to her at the time of divorce.--(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to,--

(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;

(b) where she herself maintains the children bora to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law;

(d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in Clause (d) of Sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.

(3) Where an application has been made under Sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that,--

(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or

(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to Clause (d) of Sub-section (1) have not been delivered to her,

make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in Clause (d) of subsection (1) to the divorced woman:

Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.

(4) If any person against whom an order has been made under Sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974), and may sentence such person; for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.

4. Order for payment of maintenance.--(1) Notwithstanding anything contained in the foregoing provisions of the Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during the marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportion in which they would inherit her property and at such periods as he may specify in his order:

Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her:

Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him, be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.

(2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in Sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso of Sub-section (1), the Magistrate may, by order, direct the State Wakf Board established under Section 9 of the Wakf Act, 1954 (29 of 1954), or under any other law for the time being in force in a State functioning in the area in which the woman resides, to pay such maintenance as determined by him under Sub-section (1), as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.

Section 5 is reproduced as below:

5. Option to be governed by the provisions of Sections 125 to 128 of Act 2 of 1974.-If, on the day of the first hearing of the application under Sub-section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.

Explanation.--For the purposes of this section, "date of the first hearing of the application" means the date fixed in the summons for the attendance of the respondent to the application.

5. In Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh reported in 2000(3) Mh.L.J. 555, the Full Bench of this Court has considered the provisions of the Muslim Women Act along with the provisions of Sections 125 and 128 of the Criminal Procedure Code and answered issues in following terms:

63. We will now summarise our answers to the questions, raised before us:

The 1st question

i) Whether the Muslim husband's liability under Section 3(a) of the Muslim Women Act to make a reasonable and fair provision and pay maintenance is only restricted to the iddat period or whether it extends beyond the iddat period?

Answer:

i.) The husband's liability to pay maintenance to a divorced wife ceases the moment iddat period gets over. He has to pay maintenance to her within the iddat period for the iddat period. But he has to make reasonable and fair provision for her within iddat period, which should take care of her for the rest of her life or till she incurs any disability under the Muslim Women Act. While deciding the amount regard will be had to the needs of the divorced women, the standard of life enjoyed by her during her marriage and the means of former husband and the like circumstances. If the husband is unable to arrange for such a lump sum payment he can ask for instalments and the Court shall consider granting him instalments. Till the husband makes the fair and reasonable provision, the Magistrate may direct monthly payment to be made to the wife even beyond the iddat period subject to the fixation of the amount of fair and reasonable provision.

The 2nd question

ii) Whether the Muslim Women Act has the effect of invalidating the orders/judgments passed under Section 125 of the Code i.e. whether the Muslim Women Act operates retrospectively so as to divest parties of vested rights?

Answer

ii) The orders passed under Section 125 of the Code prior to the enactment of the Muslim Women Act are not nullified by reasons of coming into force of the Muslim Women Act. Such orders are binding on both sides and can be executed under Section 128 of the Code. The Muslim Women Act does not divest the divorced woman of the right to get maintenance under Section 125 of the Code vested in her by reason of orders of the competent Court passed prior to its coming into force. The 3rd question

iii) Whether after the commencement of the Muslim Women Act, a Muslim divorced wife can apply for maintenance by invoking the provisions of Chapter IX of the Code? Answer

iii) After commencement of the Muslim Women Act, a Muslim divorced wife cannot apply for maintenance under the provisions of Chapter IX of the Code. It is only under Section 5 of the Muslim Women Act by agreement can the husband and the divorced wife approach a Magistrate under Chapter IX of the Code.

The 4th question

iv) Whether the Family Court has jurisdiction to try application of the Muslim divorced women for maintenance after coming into force of the Muslim Women Act?

Answer

iv) After coming into force of the Muslim Women Act, a Muslim woman can apply under Sections 3 and 4 of the said Act only to the Magistrate of the first class having jurisdiction under the Code. The Family Court cannot deal with such applications.

In view of these answers declared by the Full Bench and especially in reference to 3rd question, as quoted above, it is clear that after the commencement of the Muslim Women Act, a Muslim divorced wife cannot apply for a maintenance under the provisions of Chapter IX of the Code. It is only under Section 5 of the Muslim Women Act by an agreement, the husband and the divorced wife may approach the Magistrate.

6. Considering the scheme of the Muslim Women Act and especially Sections 3 and 5 thereof, it is necessary for a Muslim divorced woman and her former husband, at the first hearing of the application under Sub-section (2) of Section 3 to file an affidavit or any other such declaration in writing in such manner as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure. The Magistrate shall dispose of such application accordingly. The section is designed to mean that after coming into force of the Muslim Women Act, no proceeding can be initiated on an application under Section 125 of the Criminal Procedure Code by the divorced wife except as provided under Section 5 of the Muslim Women Act. In the present case, admittedly no such mandate has been followed by either of the parties.

7. The learned Advocate appearing for the respondent wife has strongly relied on para 64 (c) of the Full Bench judgment in Karim Abdul Rehman's case (supra). The Full Bench has also relied on Allabuksh v. Noorjahan 1994 Mh.L.J. 1376. The Full Bench has considered that judgment in para 64 which is reproduced herein:

64. We are mindful of the fact that the decision of the Division Bench of this Court in Allabuksh's case (supra) was rendered on 22-6-1994. It was followed by the learned Single Judge of this Court in Shaikh Babbu v. Sayeda Masarat Begum 1999(3) Mh.L.J. 465. These decisions are holding the field till date. Obviously therefore the fate of a number of matters has been decided on the basis of the said judgment. Bearing the above fact in mind, after having answered the questions, we issue the following directions in the light of the observations made by us in the present judgment.

(a) All pending applications under Section 125 of the Code filed by divorced Muslim women pending after the commencement of the Muslim Women Act will be treated as applications under the Muslim Women Act and will be disposed of as per the provision of the said Act.

(b) All applications under Section 125 of the Code filed by divorced Muslim women which are pending in the Family Court will be transferred to the concerned Magistrate's Court for disposal according to the provisions of the Muslim Women Act. Interim order passed therein will be continued till the Magistrate disposes them of.

(c) All applications under Section 125 of the Code filed by divorced Muslim women, which have been decided finally pursuant to the decision of the Division Bench of this Court in Allabuksh's case (supra) will not be reopened due to the present judgment.

8. The above directions issued by the Full Bench itself make the position very clear that all pending applications under Section 125 of the Criminal Procedure Code will be governed as per the directions referred to above. It also means, and as strongly relied, that all applications under Section 125 of the Criminal Procedure Code filed by the divorced Muslim women, which have been decided finally pursuant to the decision of the Division Bench in Allabuksh's case (supra), will not be reopened due to the present judgment.

9. The 3rd question as answered is relevant in this case whereby the Full Bench has further declared that such application under the provisions of Chapter IX of the Code after commencement of the Muslim Women Act shall not be applicable except by following the procedure as contemplated under Section 5 of the Muslim Women Act.

10. The Apex Court in Danial Latifi v. Union of India while upholding the.constitutional validity of the Muslim Women Act, observed in para 31 as under:

31. Even under the Act, the parties agreed that the provisions of Section 125, Criminal Procedure Code would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125, Criminal Procedure Code would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional." And further concluded in para 36 as under:

36. While upholding the validity of the Act, we may sum up our conclusions:

(1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.

(2) Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to the iddat period.

(3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

(4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

The Full Bench decision in Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh (supra) has also been taken note of by the Apex Court in Danial Latifi's case (supra).

11. In view of all this mandate and in the facts and circumstances of the present case wherein, though not challenged by either parties, the order dated 10th January, 1997 passed by the JMFC became final and binding, the Court has granted maintenance even to the wife being a divorcee in the terms as quoted above. Respondent No. 1 - wife has accepted the same i.e. maintenance for Iddat period from the date of divorce and Mahr amount as awarded. Such divorcee is definitely entitled to claim a maintenance as observed in Allabuksh's case (supra) and also observed by the learned Full Bench, unless she has not performed second marriage and or in any other circumstances.

12. The limited question in this application is whether the second application under Section 125 of the Criminal Procedure Code was maintainable or not before the Family Court. The application under Section 125 of the Criminal Procedure Code is maintainable subject to the mandate of Section 5 of the Muslim Women Act. In absence of the same, such application as in the present matter was itself wrong in view of the answer given by the Full Bench in reference to 3rd question. The second application under Section 125 of the Criminal Procedure Code as filed by respondent No. 1 - wife has been decided wrongly by the Family Court on 19-9-1999 based on the Allabaksh's case (supra) which was further followed in Shaikh Babbu reported in 7999 (3) Mh.L.J. 465.

13. The decision of the Full Bench is dated 11-7-2000. The present criminal revision application is dated 10-3-2000. On 26-3-2000 this Court had admitted the matter and granted ad interim relief in terms of prayer Clause (C). The prayer Clause (C) is reproduced herein:

C) Pending hearing and final disposal of the Criminal revision application, the operation of the order of the family Court Aurangabad in petition E-789/98 dated 19-9-1999 may kindly be ordered to be stayed.

In the result, the effect and operation of the impugned Family Court order has been stayed since then. Therefore on the date of the decision of the Full Bench the said judgment on application under Section 125 of the Criminal Procedure Code filed by the divorced Muslim woman i.e. respondent No. 1, cannot be said to have been decided finally pursuant to the decision in Allabuksh's case (supra). The issue, in view of the pending revision application, has been pending since then before this Court. In view of this factual aspect it is difficult to accept the contention of the learned Advocate appearing for the respondent - wife that the judgment of the Full Bench protects the cases decided under Section 125 of the Criminal Procedure Code including the present one. The present case was not decided finally on the date of the order passed by the Full Bench (supra). This Court has, in fact, granted stay to the said order of the Family Court while admitting the petition of the petitioner on 23-6-2000. All these events took place even prior to the decision of the Full Bench. Therefore, I am of the view that the respondent - wife is not entitled for the benefit in view of para 64 (c) of the Full Bench judgment as contended by the learned Counsel for the respondent - wife.

14. Taking into account the clear-declaration by the Full Bench in reference to question No. 3 and further on the foundation of Sections 3 and 5 of the Muslim Women Act, 1 am of the view that such application filed by the Muslim divorced women under Section 125 of the Criminal Procedure Code without following the due procedure as contemplated under Section 5 of the Muslim Women Act itself would not be maintainable. Therefore, the impugned order of grant of maintenance, in the facts and circumstances of the case, is unsustainable. It is quashed and set aside accordingly However, liberty is granted to the respondent - wife to file appropriate application afresh, in accordance with law.

15. The Criminal Revision Application is therefore allowed. Rule is made absolute in terms of prayer Clause (B). No order as to costs.