Karnataka High Court

Sri Syed Abdul Azeez @ Irfan vs Smt Syeda Shabab Fathima on 31 March, 2022

Bench: Sreenivas Harish Kumar

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 31 S T DAY OF MARCH, 2022

                       BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

                RPFC NO.62 OF 2016

BETWEEN:

Sri Syed Abdul Azeez @ Irfan
S/o Abdul Khaliq
Aged about 42 years
Nandidurg a Extension
Bang alore-560 046.                       ...Petitioner


(By Smt Parvathy R Nair, Advocate, for
Smt. Udita Ramesh, Advocate)

AND:

Smt Syed a Shab ab Fathima
D/o Syed Usman Ali @ Jeelani
Aged about 34 years
R/at No.55/B, 40 t h Cross
II Main Road , 8 t h Block
Jayanag ar
Bang alore-560082.                        ...Respondent

(By Smt Saritha Kulkarni, Advocate, for
Smt. Reena R, Advocate)



     This RPFC is filed und er Section 19(4) of the
Family Courts Act, against the Judgment and Decree
dated 15.03.2016 passed in Crl. Misc. No.192/2006 on
the file of the I Addl. Prl. Judge, Family Court,
Beng aluru,  allowing   the   p etition  filed under
Sec.125(1) of Cr.P.C.
                           :: 2 ::


     This RPFC having been heard & reserved on
10.03.2022, coming on for pronouncement this day,
the Court pronounced the following :

                        ORDER

This revision petition is filed under section

19(4) of the Family Courts Act, 1984 questioning

the correctness of the order dated 15.03.2016

passed by the I Additional Principal Judge, Family

Court, Bengaluru in Crl.Misc.192/2006. This

revision petition has the following background:

2. The marriage between the petitioner and

the respondent was solemnized on 2.6.2003 in

Bengaluru according to the rites and practices

under Mohammadan Law. They lived together for

12 days in Bengaluru and then flew to Jordan

where the petitioner was employed at that time.

Their matrimonial life did not last long because of

discord between them. This resulted in dissolution

of their marriage in the year 2005; the petitioner

returned to India; secured another employment :: 3 ::

and contracted second marriage. Then the

respondent initiated a proceeding under section

125 Cr.P.C. claiming maintenance for her. The

Family Court, after holding an enquiry directed the

petitioner to pay Rs.20,000/- per month to the

respondent towards maintenance till her life time

or she would contract second marriage. Therefore

the petitioner is before this court.

3. I have heard Smt. Parvathy R. Nair,

learned counsel for the petitioner and Smt. Saritha

Kulkarni, learned counsel for the respondent.

4. It was the argument of Smt. Parvathy R.

Nair that after the marriage was dissolved, the

petitioner paid Rs.6,000/- to the respondent for

the iddat period of three months. This amount

was paid by way of D.D. and that the respondent

encashed it. Since the parties are Muslims, the

petitioner is under no obligation to provide

maintenance after the dissolution of the marriage :: 4 ::

consequent upon enactment of the Muslim Women

(Protection of Rights on Divorce) Act, 1986. The

Family Court has not considered this contention of

the petitioner although it was raised before it.

Therefore the impugned order suffers from

illegality and it needs to be set aside.

5. The respondent's counsel argued that

dissolution of the marriage between the parties

would not take away the right of divorced wife to

claim maintenance if she remained unmarried. She

submitted that notwithstanding the Muslim Women

(Protection of Rights on Divorce) Act, 1986, the

divorced wife can claim maintenance under section

125 Cr.P.C. The respondent has not remarried and

in this view there is no infirmity in the impugned

order.

6. In the light of the arguments of learned

counsel, the point to be discussed is impact of

Muslim Women (Protection of Rights on Divorce) :: 5 ::

Act, 1986 on the right of divorced Muslim woman

to claim maintenance under section 125 Cr.P.C if

she remains unmarried. Already there have been

many judicial pronouncements on this point.

Before referring to the decided cases, if a question

is put as to why a male Muslim makes it a point of

controversy whenever he is directed to pay

maintenance to his divorced wife, the answer is -

ambiguous language of section 3 of the Muslim

Women (Protection of Rights on Divorce), Act.

Section 3 reads :

"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;

:: 6 ::

(b) where she herself maintains the children born 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; and

(d) all the properties given to her before or at the time of marriage or after the 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 :: 7 ::

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 in 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 :: 8 ::

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 sub-section (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 :: 9 ::

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."

7. Clause (a) of sub-section 1 of section 3 of

the Act gives a first impression that the former

husband of a divorced Muslim woman cannot be

obligated to provide maintenance to the latter

after the iddat period. But the true purport of

clause (a) is made clear by the Supreme Court in

the case of Danial Latifi and Another vs Union

of India [Writ Petition (Civil) 868/1986]. It is

held,

"A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood, after the divorce :: 10 ::

and, therefore, the word provision indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. The expression within should be read as during or for and this cannot be done because words cannot be construed contrary to their meaning as the word within would mean on or before, not beyond and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but no where the Parliament has provided that reasonable and fair provision and maintenance is :: 11 ::

limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time."

8. Therefore the true purport of section

3(1)(a) of the Act having thus been interpreted by

the Supreme Court, the husband who has divorced

his wife cannot contend that his liability ceases

once he pays the dower or mahr. If a Muslim

woman remains unmarried after the iddat period

and if she finds it difficult to maintain herself, she

can approach the Magistrate with an application

seeking a reasonable and fair provision and

maintenance to her in accordance with sub-section

(2) of section 3 of the Act. In this view the

argument of Smt. Parvathi R Nair cannot be

accepted.

9. The order impugned in this revision

petition is passed on an application filed under

section 125 of Cr.P.C. When sub-section (2) of :: 12 ::

section 3 of the Act provides a remedy to a

divorced Muslim woman, a question would further

arise whether she can make an application under

section 125 Cr.P.C for maintenance when the Act

provides for remedy for her. In the case of Danial

Latifi (supra), comparing section 3 of the Act and

section 125 of Cr.P.C, it is held as below,

"A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support is satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right loses its :: 13 ::

significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.

Even under the Act, the parties agreed that the provisions of Section 125 CrPC 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 CrPC would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional."

10. In a situation akin to the facts in the

case on hand, the High Court of Judicature at

Allahabad in the case of Jubair Ahmad vs Ishrat :: 14 ::

Bano [Criminal Revision 2509/2014] has taken

the following view:

"21. The Supreme Court referred Iqbal Bano v. State of UP (2007) 6 SCC 785 which followed Vijay Kumar Prasad v. 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 appellant 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. It was held:

"Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi, (2001 AIR SCW 3932) (supra) and Iqbal Bano, (2007 AIR SCW 3880) (supra) would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, :: 15 ::

as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women. 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 the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry."

11. In the case of Rana Nahid @ Reshma @

Sana and Another vs Sahidul Haq Chisti [2020

SCC Online SC 522] a question arose whether an

application under section 3(2) could be entertained

by the Family Court. It is held that the Family

Court can entertain the application made under

section 3(2) of the Act in view of section 20 of the

Family Courts Act which has got an over-riding

effect. In para 107 of the judgment it is observed

as below :

:: 16 ::

"107. I am of the view that the Family Court, for the reasons discussed above, had the jurisdiction to convert the application of the Appellant under Section 125 of the Cr.P.C into an application under Section 3 of the 1986 Act for Muslim Women and to decide the same."

12. Therefore the conspectus of the

judgments referred to above make it abundantly

clear that a Muslim husband who has divorced his

wife without making any provision for the

maintenance of his divorced wife within the iddat

period is under an obligation to provide

maintenance to her as long as she remains

unmarried and is not able to maintain herself.

Whether she makes an application under section

125 Cr.P.C or section 3(2) of the Act makes no

difference. If an application under section 125

Cr.P.C is made, it can be treated as an application