Muntaz Begum, Nirmal ... vs Mohd.Quayyum Qureshi, Adilabad ...
2023 Latest Caselaw 2520 Tel

            THE HON'BLE SRI JUSTICE E.V.VENUGOPAL

            CRIMINAL REVISION CASE No.817 OF 2017

ORDER:

1 Heard Sri Rama Kotaiah, learned counsel representing Sri A.Jagan,

learned counsel for the petitioner and Sri Vizarath Ali, learned Assistant

Public Prosecutor appearing for the State.

2 This criminal revision case is filed challenging the order dated

11.05.2016 passed by the learned IV Additional District & Sessions Judge-

cum-Judge, Family Court, Adilabad, in Crl.R.P.No.36 of 2015 wherein and

whereby the order passed in M.C.No.62 of 2012 on the file of the

Additional Judicial Magistrate of First Class, Nirmal, dated 27.04.2015

granting maintenance to the petitioner herein was set aside.

3 The facts in nutshell are that the marriage of the petitioner was

performed with the first respondent herein on 02.02.1998 and that that

time her parents gave Rs.8,000/- to the first respondent towards dowry

besides some gold and silver ornaments and other household articles.

After one month of the marriage, the first respondent and his family

members started harassing the petitioner for additional dowry. They also

demanded the petitioner to give khula to the first respondent so that he

will another woman and when she refused for it, they beat her. Lastly on

08.03.2001, the first respondent and his family members beat her and

have driven her out of the house after snatching all the ornaments from

her and since then she has been residing at her parents' house at Nirmal.

The mediations tried by the petitioner went in vain. The petitioner came

to know that in April, 2001 the first respondent married another woman.

Thereupon the petitioner filed M.C.No.14 of 2001 on 24.01.2001 before

the court of Judicial Magistrate of First Class, Nirmal and also a criminal

case under Section 498-A of IPC and under Section 4 of Dowry

Prohibition Act against the first respondent and his family members. It is

further stated that during the pendency of the maintenance case, the first

respondent pronounced talaq to the petitioner on 05.02.2002 and the

same was mentioned by the first respondent in his counter affidavit but

he did not pay any customary dues to the petitioner and also did not

return the ornaments, jahez articles, furniture etc., to the petitioner. The

trial Court, after full fledged trial, passed orders in the M.C.No.14 of 2001

accepting the divorce given by the first respondent to the petitioner,

granted maintenance from the date of filing of petition till the date of

filing of counter i.e. from 21.04.2001 to 19.03.2002 on which date the

first respondent filed his counter (divorce communicated to the

petitioner). It was opined in the said order that the divorced Muslim

woman is not entitled to any maintenance from her former husband after

Idhat period and accordingly dismissed the maintenance petition. The

petitioner is not remarried till today. On the other hand, though the first

respondent has sufficient means to maintain the petitioner, wilfully

neglected to maintain the petitioner. Hence she claimed Rs.3,000/- p.m.

from the date of filing of the petition towards maintenance from the first

respondent.

4 The first respondent filed counter, inter alia, contending that the

petitioner filed a separate maintenance case being M.C.14 of 2001 and

the same was dismissed. In view of the orders passed in that M.C, which

is not set aside or modified, the fresh maintenance case is not

maintainable. After dismissal of the M.C.No.14 of 2001, the petitioner

filed a petition under the Muslim Women (Protection of Rights on

Divorce) Act, vide Crl.M.P.No.744 of 2007 and the same was allowed ex

parte. As per the bar under the said Act, the present petition under

Section 125 Cr.P.C. is not maintainable and liable to be dismissed.

5 Before the trial Court the petitioner herself examined as P.W.1 and

her elder sister was examined as P.W.2. The order in Crl.M.P.No.744 of

2007 was marked as Ex.P.1. On behalf of the respondent, the

respondent himself was examined as R.W.1. But no documentary

evidence was adduced on his behalf.

6 On appreciation of the entire material available on record, the trial

Court allowed the petition granting Rs.2,000/- per month to the petitioner

towards maintenance. Aggrieved by the said order, the respondent filed

Crl.R.P.No.36 of 2015 and the learned IV additional District and Sessions

Judge, Adilabad, by order dated 11.05.2016 allowed the said revision

petition and set aside the order of the learned trial Court. Hence the

present criminal revision case.

7 It is the contention of the learned counsel for the petitioner that a

divorced Muslim woman is entitled to claim maintenance from her

husband if she is not remarried and even after iddat period also.

8 In Pattam Gousha B.I vs. Pattan John Shaida 1 the High Court

of Andhra Pradesh following the principle laid down by the Hon'ble apex

Court in Shamim Ara vs. State of UP 2 and Danial Latifi vs. Union of

India 3, held that a divorced Muslim woman is entitled to maintenance

form her former husband even after the period of iddat.

9 Keeping the above principle in mind, when looked into the facts of

the present case, in M.C.No.14 of 2001 the petitioner was granted

maintenance only during the period of iddat and the court rejected rest of

her claim for future maintenance in view of the principles governed by

Manu/AP/0757/2022

(2002) 7 SCC 518

(2001) 7 SCC 740

the Mohammedan Law. However, the learned trial Court in the present

maintenance case has awarded Rs.2,000/- p.m. to the petitioner

observing that the petitioner is entitled to the same while interpreting the

scope of Sections 3 and 4 of Muslim Women (Protection of Rights on

Divorce) Act, 1986. The appellate Court reversed the said finding on the

ground that since the order passed in the earlier maintenance case i.e.

M.C.No.14 of 2001 was not set aside or varied, principles of res judicata

will operate and hence the order of the learned trial Court is not

sustainable since the proceedings under Section 125 Cr.P.C are both

quasi civil and quasi criminal.

10 In Danial Latifi vs. Union of India (3 supra) a Five Judge

Bench, on the point - whether, if husband had paid mahr to wife then

would it indemnify husband from his obligation under Section 125 of

Criminal Procedure Code, 1973, held that a careful reading of the

provisions of the Act would indicate that at the time of divorce Muslim

husband was required to contemplate future needs and made

preparatory arrangements in advance for meeting those needs and that

nowhere the Parliament has provided that reasonable and fair provision

and maintenance was limited only for the iddat period and not beyond it

and it would extend to whole life of divorced wife unless she gets married

for a second time. The Bench held that 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.

11 As seen from the record, the petitioner herein filed Crl.M.P.No.744

of 2007 claiming mahr. Though that petition was ordered in her favour,

the first respondent did not positively respond to it.

12 In Pattam Gousha B.I. vs. Pattan John Shaida (1 supra) also

the Andhra Pradesh High Court observed that even the divorced muslim

woman is entitled for maintenance under Section 125 of Cr.P.C. for her

whole life so long as she does not remarry and her right to maintenance

against the husband is not restricted to the period of Iddat only.

13 Therefore, even if the order in M.C.No.14 of 2001 was to the

limited extent of time for providing maintenance to the petitioner, but in

view of Section 127 (1) Cr.P.C, and in view of the ruling of the Hon'ble

apex Court in the above judgments, the petitioner is entitled to

maintenance. The principles of res judicata opined by the lower revisional

court will not apply to the present case because the Code of Criminal

Procedure controls the proceedings in such matters and overrides the

personal law of the parties and if there was a conflict between the terms

of the Code and the rights and obligations of the individuals, the former

would prevail, as held in Danial Latifi case (3 supra).

14 The criminal revision case is accordingly allowed, setting aside the

order dated 11.05.2016 passed by the learned IV Additional District &

Sessions Judge-cum-Judge, Family Court, Adilabad, in Crl.R.P.No.36 of

2015 and the order passed in M.C.No.62 of 2012 on the file of the

Additional Judicial Magistrate of First Class, Nirmal, dated 27.04.2015 is

restored.

15 As a sequel, miscellaneous petitions, if any, pending in this criminal

revision case shall stand closed.

------------------------

E.V.VENUGOPAL, J.

Date: 20.09.2023 Kvsn