Jharkhand High Court
Nuzhat Jahan vs The State Of Jharkhand on 13 October, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 602 of 2006
1. Nuzhat Jahan
2. Abu Talha @ Nahid Hussain ..... Petitioners
Versus
1. The State of Jharkhand
2. Taiyab Ali ..... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioners : Ms. Saman Ahmad, Amicus curiae
For the State : Mr. V.S. Sahay, APP
For the O.P. No.2 : Mr. A. Allam, Sr. Advocate
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08/ 13.10.2022 Heard learned counsel for the parties.
2. The instant application has been preferred challenging
the propriety and correctness of the order dated 03.05.2006, passed
by learned Principal Judge, Family Court, Ranchi, in Maintenance
Case No.56 of 2004; whereby the learned Family Court, Ranchi has
held that the petitioner No.1- (wife of O.P. No.2) is not entitled to
any maintenance allowance on the ground that she has already been
divorced by the O.P. No.2 and petitioner No.2 (child of O.P. No.2)
is only entitled to monthly allowance of Rs.600/- per month from
June, 2004; that too is very inadequate.
3. The prosecution case in brief is that the Nuzhat Jahan-
petitioner No.1 and Taiyab Ali-O.P. No.2 were married on
02.04.2000 according to Muslim rites and customs. The petitioner
No.1 went to her sasural where she was subjected to cruelty for
dowry demand of Rs.2,00,000/- for purchasing of a Car. The
petitioner No.1 was deprived of proper food and clothes. The
petitioner No. 1 even under such circumstances gave birth to a male
child namely Abu Talha @ Nahid Hussain (Petitioner No. 2).
That on 25.03.2004, the petitioner No. 1 along with her
child was driven out of her matrimonial house and had to take
shelter in the house of a neighbour who sent her to her parent's
house. The petitioner No. 1 is unable to maintain herself and her
child. The opposite party No.2 is owner of a Fair Price Shop under
the Public Distribution System of the Government. He also works
as a contractor and has got sufficient landed property. His monthly
income is not less than Rs.40,000/- from the sources.
4. Ms. Saman Ahmad, learned amicus for the petitioners
submits that the petitioner No.1 is not divorced by the O.P. No.2.
She further contends that even assuming but not admitting that the
petitioner no.1 has been divorced by the opposite party No.2; still
she is entitled for maintenance as per the settled law.
She further submits that under Muslim law, father is
under the obligation to maintenance his legitimate child until he/she
attains majority. The amount of Rs.600/- as awarded by the learned
Family court to petitioner No.2 as monthly allowance is too meagre
during these days.
She further disputed the documents exhibited by the O.P.
No.2 before the learned trial court. She lastly submits that even if a
Muslim woman has been divorced she would be entitled to claim
maintenance from her husband under Section 125 Cr. P.C. even
after the expiry of period of Iddat also as long as she does not
remarry.
5. Mr. A. Allam, learned senior counsel for the O.P. No.2
submits that there is no error in the impugned order as the learned
Family Court has rightly denied maintenance to petitioner no.1 as
she was divorced by the O.P. No.2. Further, the Family Court has
duly awarded maintenance of Rs.600/- per month to petitioner No.2
and no interference is required.
6. Having heard learned counsel for the parties and after
going through the impugned order it appears that the sole reason for
disallowing maintenance to the petitioner No.1 is that she was
divorced by the opposite party No.2.
7. For brevity, relevant portion of the order is quoted
herein below:
"O.P. has filed documents Ext. B and B/1 which
are Talaknama and its translated copy to prove that on
8.2.2004 he had divorced his wife Nuzhat Jahan which
was confirmed in the meeting of Anjuman Islamia held
on 9.2.2004. The document shows that the Dain Mehar
and expenses of Iddat period along with the expenses
of marriage was handed over to the parents of the
Applicant along with the entire articles and ornaments
given in the marriage. I do not find any reason to
disbelieve the testimony of the O.P. and his witnesses
along with documents Ext. B and B/1 that he has
already divorced Applicant No.1 on 8.2.2004.
Therefore, I hold that the Applicant No.1 Nuzhat Jahan
is not entitled to any maintenance allowance. However,
her child Abu Talha @ Nahid Hassan aged about 4
years is entitled to maintenance allowance. I find that
the monthly allowance of Rs.600/- per month as
directed by Anzuman Islamia is adequate for the
maintenance of the child. Accordingly, I direct O.P.
Taiyab Ali to pay a sum of Rs. 600/- per month to the
Applicant for maintenance of minor son. The order
shall take effect from the date of filing of the
Application i.e. from the month of June, 2004.
However, any amount of maintenance paid after filing
of this case shall be adjusted towards the arrear.
Application u/s 125 Cr. P.C. is hereby allowed in part."
8. There has been a long debate as to whether a Muslim
woman will be entitled for maintenance under Section 125 Cr. P.C.
even after the period of iddat.
Now the law is no more res integra. In the case of Md.
Ahmed Khan vs Shah Bano Begum reported in (1985) 2 SCC 556,
Five-judge Bench of the Hon'ble Apex Court held that the Code of
Criminal Procedure controls the proceedings in such matters and
overrides the personal law of the parties and in case of conflict
between the terms of the Code and the rights and obligations of the
individuals under personal law, the Code would prevail.
The Supreme Court referred the case of Iqbal Bano vs.
State of UP (2007) 6 SCC 785 which followed Vijay Kumar
Prasad vs. State of Bihar, (2004) 5 SCC 196 to hold that
proceedings under Section 125, Cr. P.C. are civil in nature and laid
down that a petition under Section 125 of the Cr. P.C. filed by a
divorced woman would be maintainable before the Family Court as
long as wife does not remarry and the amount of maintenance to be
awarded under Section 125 of the Cr. P.C. cannot be restricted for
the iddat period only. In other words, 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 women.
It is to be noticed that the right of maintenance available
to wife from husband is absolute right and even divorce cannot
affect this right unless the wife is disqualified on account of
remarriage or her sufficient earning.
9. In the light of the aforesaid discussion and settled
proposition of law, the impugned order needs to be quashed and set
aside. 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 the Cr. P.C. after the expiry of period of iddat also, as
long as she does not remarry.
Now there can be no shadow of doubt that the divorced
Muslim woman is entitled to claim maintenance under Section 125
Cr. P.C.
10. As the learned Family Court has denied maintenance to
the petitioner No.1 for the sole reason that she has been divorced by
the O.P. No.2, as such the instant application, is hereby, allowed and
the case is remitted back to the Family Court with a direction to
pass a fresh order for maintenance after noticing both the parties in
the light of observation given herein above.
11. The learned trial court should keep in mind the price
inflation and other financial constraints which the petitioner No.1 is
bearing while fixing the quantum of maintenance.
12. It goes without saying that since it is a case of
maintenance, the learned Family Court is directed to conclude the
entire proceeding as expeditiously as possible preferably within a
period of six months.
13. Needless to say, since the petitioner No.1 has not been
paid any maintenance till date, as informed by learned counsel for
the petitioner, the learned trial court should also pass an order of
interim maintenance in favour of petitioner Nos. 1 & 2.
14. With the aforesaid direction, the instant application
stands allowed.
15. The Court appreciates the assistance rendered by Ms.
Saman Ahmad, learned amicus for the petitioners who has prepared
meticulous notes on prosecution evidence and produced copies of
the judgments.
16. The Secretary, Jharkhand High Court Legal Services
Committee shall reimburse Ms. Saman Ahmad, learned Amicus on
submission of bill(s) for this case @ Rs.5,000/- per appearance
subject to the maximum limit as per the applicable Notification.
17. Let a copy of this order be communicated to the court
below, the Secretary, Jharkhand High Court Legal Services
Committee and also to the petitioners and O.P. No.2.
18. Let the lower court record be sent back to the court
concerned forthwith.
(Deepak Roshan, J.)
Pramanik/
