Calcutta High Court (Appellete Side)
Mamtaz Bibi vs Basir Sheikh And The State Of West Bengal on 21 April, 2009
In the High Court at Calcutta
Criminal Revision Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Kishore Kumar Prasad
C.R.R NO. 1869 OF 2000
MAMTAZ BIBI
VS.
BASIR SHEIKH AND THE STATE OF WEST BENGAL
For the Petitioner : Md. Yasin Ali,
Mr. Dipankar Mondal.
For the Opposite Party : Md. Ashraf Ali,
/Husband Md. Tarik Ferdaus.
Heard on : 6.4.2009.
Judgement on : 21.4.2009.
Kishore Kumar Prasad, J. :
The instant application invoking the inherent jurisdiction under Section 482 of the Code of Criminal Procedure has been filed by the petitioner, Mamtaz Bibi for setting aside the judgment and order dated. 25.2.2000 passed in Criminal Motion No. 397/1997 by the learned Additional Sessions Judge, 4th Court, Murshidabad by reason whereof he dismissed the revision application filed by the petitioner.
The revision application before the learned Additional Sessions Judge, 4th Court, Murshidabad in turn was filed against the judgment and order dated. 19.5.1997 passed by the learned Judicial Magistrate, 3rd Court, Berhampore in M.R. Case No. 127 of 1995 by which he allowed the application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 in part merely by directing the Opposite Party No. 1 herein to pay to the petitioner a sum of Rs. 999/- by way of Den Mohar and a sum of Rs. 1,500/- (Rs. 500 X 3) by way of maintenance for the period of Iddat and to return to the petitioner a golden Tayera gifted to her at the time of marriage.
None appeared on behalf of the Opposite Party No. 2/State of West Bengal to resist the instant application.
Learned counsel appearing on behalf of the petitioner submitted that the courts below committed a serious error of law in giving the expression "during the period of Iddat" a restricted meaning of three months and the courts below ought to have proceeded on the footing that "period of iddat" covers the entire period and extends till a Mehammedan divorced female enters remarriage.
Learned counsel also contended that courts below failed to give due weight to the admission of the Opposite Party No. 1 who in course of his evidence stated that the father of the petitioner was a rich man at the time of marriage of the petitioner and despite such admission of Opposite Party No. 1, the learned courts below came to a irrational finding that besides one golden Tayera nothing whatever was gifted by the father of the petitioner at the time of her marriage.
Learned counsel also contended that the failure on the part of the courts below to pass an order for the payment of the value of the said ornament in default of return thereof is not only illegal and improper but also resulted in an abuse of the process of the Court. Learned counsel relying on the decision of Hon'ble Apex Court in the case of Danial Latifi and Another -vs- Union of India reported in (2001) 7 SCC 740 lastly prayed for an order from this Court to send back on remand of the original proceeding being No. M.R. 127 of 1995 arising out of T.R. No. 586 of 1997 of learned Judicial Magistrate, 3rd Court, Berhampore after setting aside the judgment and order of the revisional court as also the judgment and order of the learned Trial Magistrate.
Learned lawyer for the Opposite Party No. 1 in his usual fairness submitted before the Court that in view of the conclusions arrived at by the Hon'ble Apex Court in the case of Danial Latifi and Another -vs- Union of India (Supra) since the liability of the Muslim husband to his divorced wife arising under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 to pay maintenance is not confined to Iddat period, he is unable to support the impugned judgment and order of the Courts below. He also prayed for an order to send back on remand of the original proceeding being No. M.R. 127 of 1995 after setting aside the impugned judgment and order of the courts below.
I have given my anxious and thoughtful consideration to the respective contentions of the learned counsel for the parties. I have also perused the materials on record and the impugned judgment and order of the courts below.
In order to appreciate the contentions of the learned counsel for the parties, it is useful to refer paras 35, 36 and 37 of the judgment in the case of Danial Latifi and Another -vs- Union of India (Supra) rendered by a Five- Judges Bench of the Hon'ble Apex Court which are reproduced hereinunder :-
" 35. The learned counsel appearing for the Muslim organisations contended after referring to various passages from the text books to which we have adverted to earlier to state that the law is ver clear that a divorced Muslim woman is entitled to maintenance only upto the state of Iddat and not thereafter. What is to be provided by way of Mata is only a benevolent provision to be made in case of divorced Muslim woman who is unable to maintain herself and that too by way of charity or kindness on the part of her former husband and not as a result of her right flowing to the divorced wife. The effect of various interpretations placed on Suras 241 and 242 of Chapter 2 of Holy Quran has been referred to in Shah Bano's case. Shah Bano's case clearly enunciated what the present law would be. It made a distinction between the provision to be made and the maintenance to the paid. It was noticed that the maintenance is payable only upto the stage of iddat and this provision is applicable in case of a normal circumstances, while in case of a divorced Muslim woman who is unable to maintain herself, she is entitled to get Mata. That is the basis on which the Bench of Five Judges of this Court interpreted the various texts and held so. If that is the legal position, we do not think, we can state that any other position is possible nor are we to start on a clean slate after having forgotten the historical background of the enactment. The enactment though purports to overcome the view expressed in Shah Bano's case in relation to a divorced Muslim woman getting something by way of maintenance in the nature of Mata is indeed the statutorily recognised by making provision under the Act for the purpose of the 'maintenance' but also for 'provision'. When these two expressions have been used by the enactment, which obviously means that the Legislature did not intend to obliterate the meaning attributed to these two expressions by this Court in Shah Bano's case. Therefore, we are of the view that the contentions advanced on behalf of the parties to the contrary cannot be sustained.
36. In Arab Ahemadhia Abdulla and etc vs. Arab Bail Mohmuna Saiyadbhai & Ors. Etc. MANU/GJ/0093/1988; AIR 1988 Guj 141, (1988) 1 GLR 452; Ali vs. Safaira, (1988) 3 Crimes 147; K. Kunhashed Hazi v. Amena, 1995 Cri.L.J. 3371; K. Zunaideen v. Ameena Begum, (1998) II DMC 468; Karim Abdul Shaik v. Shenaz Karim Shaik, 2000 Cr.L.J. 3560 and Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh & Anr., 1999 (3) Mh.L.J. 694, while interpreting the provision of Sections 3(1) (1) and 4 of the Act, it is held that a divorced Muslim woman is entitled to a fair and reasonable provision for her future being made by her former husband which must include maintenance for future extending beyond the iddat period. It was held that the liability of the former husband to made a reasonable and fair provision under Section 3(1)(a) of the Act is not restricted only for the period of iddat but that divorced Muslim woman is entitled to a reasonable and fair provision for her future being made by her former husband and also to maintenance being paid to her for the iddat period. A lot of emphasis was laid on the words "made" and "paid" and were construed to mean not only to make provision for the iddat period but also to make a reasonable and fair provision for her future. A Full Bench of the Punjab and Haryana High court in Kaka v. Hassan Bano & Anr. II (1998) DMC 85 (FB), has taken the view that under Section 3 (1) (a) of the Act a divorced Muslim woman can claim maintenance which is not restricted to iddat period. To the contrary it has been held that it is not open to the wife to claim fair and reasonable provision for the future in addition to what she had already received at the time of her divorce; that the liability of the husband is limited for the period of iddat and thereafter if she is unable to maintain herself, she has to approach her relative or Wakf Board, by majority decision in Umar Khan Bahamami v. Fathimnurisa, 1990 Cr.L.J. 1364: Abdul Rashid v. Sultana Begum 1993 Cr.L.J. 76; Abdul Haq v. Yasima Talat; 1998 Cr.L.J. 3433; Md. Marahim v. Raiza Begum, 1993 (1) DMC 60. Thus preponderance of judicial opinion is in favour of what we have concluded in the interpretation of Section 3 of the Act. The decisions of the High Courts referred to herein that are contrary to our decision stand overruled.
37. 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 Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after 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."
Applying the principles of law as enunciated by the Hon'ble Apex Court in the case of Danial Latifi and Another -vs- Union of India (Supra) to the facts and circumstances of the case and keeping in mind the respective submissions of the learned counsel for the parties, I am satisfied that the instant case is squarely covered by Section 482 of the Code of Criminal Procedure justifying in interfering with the impugned judgment and order leading to miscarriage of justice and non-compliance with the mandatory provisions of the Act and in setting aside the judgment and order of the courts below.
It would, therefore, be necessary to remand the matter back to the learned Trial Magistrate/Magistrate-in-charge after setting aside the judgment and order of the courts below. The learned Trial Magistrate/Magistrate-in-charge of that Court will re-hear the parties on the merits of the rival contentions and thereafter proceed to dispose of the application on its own merits and in accordance with law so far as possible within a period of six months from the date of communication of this judgment.
The parties will be at liberty to adduce further evidence in this case in support of their respective cases as made out in the original application as also in the original written objection.
For the reasons aforesaid, the instant application deserves to be allowed and I direct so.
The impugned judgment and order of the courts below are set aside. The case is sent back on remand to the court of learned Trial Magistrate/Magistrate-in-charge, 3rd Court, Berhampore for a fresh decision in accordance with law and in the light of the judgment of the Hon'ble Supreme Court as indicated above on the basis of the evidence already on record and also on the basis of the further evidence that may be adduced by the parties within a period of six months from the date of communication of this judgment. In the case, the parties do not avail themselves of chance for adducing further evidence, the learned Trial Magistrate/Magistrate-in-charge will dispose of the case after writing out a detailed judgment touching all the points on the basis of evidence already on record after hearing the argument of the learned lawyer for the parties.
The petitioner and Opposite Party No. 1 are directed through their respective counsel before this court to appear before the Court of learned Trial Magistrate/Magistrate-in-charge of that court on 4.5.2009 by 11 A.M. I make it clear that I have not expressed any opinion on the merits of the case.
Criminal Section is directed to send a copy of this judgment to the concerned Trial Magistrate and also to the concerned revisional court forthwith for information and necessary action.
Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned counsel for the parties upon compliance of all formalities.
(Kishore Kumar Prasad, J.)