Calcutta High Court
Anwor Ali Halder vs Sakina Bibi And Anr. on 21 April, 2005
Equivalent citations: (2005)3CALLT129(HC), 2005(3)CHN649, II(2005)DMC840
JUDGMENT Asit Kumar Bisi, J.
1. The present revisional application under Section 397/ 401/482 of the Code of Criminal Procedure preferred by the present petitioner Anwor AH Halder is directed against the order dated 15th April, 2004 passed by the learned Sub-Divisional Judicial Magistrate, Hooghly (Sadar) in M.C. Case No. 13 of 2002. By the order impugned the learned Sub-Divisional Judicial Magistrate allowed the application under Section 127 of the Code of Criminal Procedure filed by Sakina Bibi presently 0. P. No. 1 and awarded allowance for maintenance at the rate of Rs. 750/- per month in her favour and Rs. 750/- per month for her daughter Rima Halder with effect from the date of the said order.
2. The facts anterior to filing of the instant revision application may be narrated thus.
3. Sakina Bibi presently O.P. No. 1 filed a case for maintenance under Section 125 of the Code of Criminal Procedure which was registered as M.C. 104 of 1985 and by the order passed on 26th December, 1985 the learned Sub-Divisional Judicial Magistrate awarded allowance for maintenance at the rate of Rs. 150/-per month in her favour and Rs. 100/- per month for her daughter.
4. Subsequently, Sakina Bibi has filed the application under Section 127 of the Code of Criminal Procedure alleging that she having no source of income has been facing much difficulty to maintain herself and her daughter with the paltry amount awarded on 26th December, 1985 owing to high price of essential commodities. According to her case her husband Anwor All Halder presently the petitioner has agricultural land measuring 30 bighas and he owns a mini deep tubewell and a tractor and deals in cattle. It has been alleged by her that her husband earns Rs. 15,000/- per month from these sources. She has prayed for enhancement of maintenance allowance payable by her husband to her and her daughter at the rate of Rs. 1,500/- per month each.
5. The said application under Section 127 of the Code of Criminal Procedure has been contested by the present petitioner figuring as opposite party in the said proceeding before the learned Court below. In his written objection he has denied all the material allegations levelled against him. His specific case is that he divorced present O.P. No. 1 Sakina Bibi by pronouncing three talaqs as per Mohammedan Law and Shariat long ago on 28th February, 1990 and he is no longer under obligation to pay allowance for maintenance to Sakina Bibi under Section 125 of the Code of Criminal Procedure and as such the question of enhancement of allowance for maintenance does not arise. His further case is that the daughter of Sakina Bibi has attained majority and as such she is not entitled to get maintenance. As alleged by him, Sakina and her daughter are expert on embroidery work and each of them earns Rs. 3,000/- per month. It has been further alleged by him that he along with his wife and children lives in his father's house and all of them are depending on income of his father.
6. The learned Court below has refused to accept the plea of divorce taken by the present petitioner who is opposite party in the maintenance proceeding. On scrutiny of the evidence on record the learned Court below has found that the talaq alleged to have been given by Anwor Ali Halder (present petitioner) to Sakina Bibi (present O.P. No. 1) was not pronounced in presence of O.P. No. 1 and there is no iota of evidence on record which goes to suggest that the said talaq was communicated to Sakina Bibi. The learned Court below has further held that even if Sakina Bibi is the divorced wife of Anwor Ali Halder she is still entitled to claim maintenance. So far as the monthly maintenance payable to the daughter is concerned it is the specific finding of the learned Court below that since the daughter is not married she is entitled to get maintenance from her father till she gets married.
7. In view of change of circumstances due to steep rise in price of the essential commodities and increasing cost of living the learned Court below allowed the application under Section 127 of the Code of Criminal Procedure filed by Sakina Bibi and enhanced allowance for maintenance at the rate of Rs. 750/- per month for Sakina Bibi and Rs. 750/- per month for her daughter Rima Halder with effect from the date of the said order.
8. Aggrieved, Anwor Ali Halder has filed the instant revision application assailing the impugned order passed by the learned Court below whereby the monthly allowance for maintenance payable by him to Sakina Bibi and the daughter has been enhanced.
9. The sole point awaiting decision in the instant revision is whether or not the impugned order passed by the learned Court below is legally sustainable in the face of the materials on record.
10. Mr. Madhusudan Sur, learned Advocate for the petitioner has contended at the outset that since the petitioner divorced present O.P. No. 1 Sakina Bibi by pronouncing three talaqs in accordance with Mohammedan Law in presence of the witnesses on 28th February, 1990 and the talaknama was registered on the self-same date, present O.P. No. 1 being a divorced Muslim woman is not entitled to get maintenance under Section 125 of the Code of Criminal Procedure. He has cited Danial Latifi and Anr. v. Union of India, reported in 2002 C Cr. LR (SC) 1, in support of his contention. So far as the allowance for maintenance payable to the daughter is concerned it has been urged by Mr. Sur on behalf of the petitioner that since the daughter of the petitioner has already become major she is not entitled to get any maintenance from her father.
11. Mr. Krishanu Banik, the learned Advocate appearing for present O.P. No. 1 Sakina Bibi, has contended, on the other hand, that the plea of divorce by pronouncing three talaqs as raised on behalf of the petitioner is not legally tenable since there is no proof that talaq was ever communicated to present O.P. No. 1 Sakina Bibi. He has further urged that a mere plea taken in the written objection of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of copy of such written objection to the wife. To buttress up his contention he has cited Shamim Ara v. State of U.P. and Anr., 2002 C Cr. LR (SC) 1070.
12. So far as the allowance for maintenance of the daughter is concerned Mr. Banik on behalf of the present O.P. No. 1 has submitted that the said daughter being Muslim female is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure from her father till she gets married. In support of his contention he has cited Noor Saba Khatoon v. Mohd. Quasim, .
13. The learned Court below disbelieved the plea of divorce raised by the petitioner/husband inasmuch as there is no iota of evidence to indicate that such divorce was ever communicated to the wife Sakina Bibi.
14. It is settled law that the talaq to be effective has to be pronounced and the plea of previous divorce taken in the written statement and its communication to the wife by delivery of a copy of such written statement cannot by itself be treated as effectuating talaq on the date of delivery of such copy to the wife. It has been held by the Supreme Court in Shamim Am v. State of U.P. and Anr. (supra) on page 1080 at para 16 that a plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on the wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. Having regard to the above principles of law and the facts and circumstances emerging from the materials on record I find that there is no proper proof of talaq and mere plea of talaq raised by the petitioner/husband is not tenable in absence of communication of talaq to O.P. No. 1 wife. It appears that the petitioner/husband has taken such plea of divorce by pronouncing three talaqs in accordance with Mohammedan Law on 28th February, 1990 in presence of the witnesses and placed reliance on the talaknama dated 28th February, 1990. But the plea of such previous talaq subsequently taken in the written objection to the application under Section 127 of the Code of Criminal Procedure and delivery of copy thereof to the wife cannot by itself be treated as effectuating talaq and that is evidently more so when except that plea taken in the written objection there is nothing to suggest or indicate that the alleged talaq was communicated to the wife.
15. Even if it is assumed for the sake of argument that the present petitioner Anwor Ali Halder divorced O.P. No. 1 Sakina Bibi, the factum of such divorce ipso facto cannot prevent Sakina Bibi from claiming maintenance from Anwor Ali Halder. In the landmark decision of the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum and Ors., , it has been held :--
"...Since the Muslim Personal Law, which limits the husband's liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by Section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself. The argument of the appellant that, according to the Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is limited to the period of iddat, despite the fact that she is unable to maintain herself, has therefore to be rejected. The true position is that, if the divorced wife is able to maintain herself, the husband's liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. The outcome of this discussion is that there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself."
(Emphasis supplied)
16. After the aforesaid judgment the Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986.
17. In Danial Latifi and Anr. v. Union of India (supra) at pages 20-21 (para 33) the Supreme Court observed as follows :--
"...Before the Act, a Muslim woman who was divorced by her husband was granted a right to maintenance from her husband under the provisions of Section 125, Cr. PC until she may remarry and such a right, if deprived, would not be reasonable, just and fair. Thus the provisions of the Act depriving the divorced Muslim women of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search other relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Section 125, Cr. PC. Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all other women in India cannot be stated to have been effected by a reasonable, right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, a divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law as indicated under the Code which are available to Hindu, Buyddhist, Jain, Parsi or Christian women or women belonging to any other community."
18. While upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 in the case of Danial Latifi (supra) the Supreme Court held as follows (page 23, para 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."
19. The object and scope of Section 125, Cr. PC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves. It was clearly pointed out by the Supreme Court in Danial Latifi (supra) on page 19 at para 30. It is significant to point out in this context that section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 lays down inter alia that if, on the date 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, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly. The provisions of the said Act which are made available to the divorced Muslim women are really in addition to the claims available to them under Section 125 of the Code of Criminal Procedure. The said Act nowhere indicates that the divorced Muslim women cannot file an application under Section 125 of the Code of Criminal Procedure independent of that Act. The right to maintenance conferred by Section 125, Cr. PC is a statutory right which the legislature has created and the same was enacted to provide a quick remedy to a class of persons who having no source of income are unable to maintain themselves. The object of Section 125 of Cr. PC is to prevent vagrancy and destitution. So Section 125, Cr. PC has its own sustaining force and stands on its own strength.
20. Applying the ratio of the abovenoted decisions and the principles of law to the facts and circumstances of the present case I concur with the learned Court below in holding that Sakina Bibi is entitled to claim maintenance from Anwor AH Halder under Section 125, Cr. PC even if it is assumed for the sake of argument that the former is the divorced wife of the latter.
21. So far as the claim for maintenance of the daughter is concerned I find considerable force in the contention of Mr. Banik on behalf of O.P. No. 1 that the said daughter being Muslim female is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure from her father till she gets married.
22. In Noor Saba Khatoon (supra) at page 3284 (para 10) the Supreme Court has clearly laid down that both under the personal law and the statutory law (section 125, Cr. PC) the obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife. So it is settled law that the children of Muslim parents are entitled to claim maintenance under Section 125, Cr. PC for the period till they attain majority or are able to maintain themselves, whichever is earlier, and in case of females, till they get married. So even if in the instant case the daughter has become major she having no source of income is entitled to get maintenance from her father till she gets married. Admittedly, the daughter of Sakina Bibi and Anwor AH Halder is unmarried. So her claim for maintenance from her father till her marriage is legally sustainable.
23. From all that has been stated above I find that in his well-reasoned judgment the learned Sub-Divisional Judicial Magistrate, Hooghly (Sadar) has rightly dealt with all aspects of the matter and allowed the application under Section 127, Cr. PC by directing the present petitioner Anwor Ali Halder to pay enhanced maintenance at the rate of Rs. 750/- per month to present 0. P. No. 1 Sakina Bibi and at the rate of Rs. 750/- per month for her daughter Rima Halder from the date of the said order. The impugned order does not suffer from any infirmity. There is no merit in the revisional application preferred by the petitioner.
24. The revisional application is accordingly dismissed.
25. Let a copy of this order be sent down to the learned Court below forthwith.
26. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.