Gujarat High Court
Anwarhussein Mohammadrafiq Sheikh vs State Of Gujarat & on 21 January, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/4/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (MAINTAINANCE) NO. 4 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil judge ?
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ANWARHUSSEIN MOHAMMADRAFIQ SHEIKH....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR MOUSAM R YAGNIK, ADVOCATE for the Applicant(s) No. 1
MR NIRAD D BUCH, ADVOCATE for the Applicant(s) No. 1
MS HB PUNANI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 21/01/2015
CAV JUDGMENT
1. This petition is filed under Article 227 of the Constitution of India with a prayer to quash and set aside the order dated 29.11.2014, passed by the learned Judge, Family Court, Godhra, below application Exh.15 Page 1 of 15 R/SCR.A/4/2015 CAV JUDGMENT filed in Criminal Misc. Application No.460 of 2013, and thereby, to quash the proceeding of Criminal Misc. Application No.460 of 2013, which is filed by respondent No.2 herein under the provisions of Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). The petitioner has alternatively prayed to transfer the proceedings of Criminal Misc. Application No.460 of 2013 from the learned Family Court at Godhra to learned Family Court at Ahmedabad.
2. Brief facts leading to the filing of present petition are as under:
2.1. The marriage of the petitioner and respondent No.2 was solemnized on 25.04.2004 as per the rites and rituals of Muslim religion.
That a baby boy was born on 10.04.2006 out of the said wedlock. It is the case of the petitioner that on account of the disputes and differences between the husband and the wife, petitioner husband gave divorce to the respondent No.2 on 25.04.2013. The petitioner husband had sent the declaration of divorce by courier along with three cheques of dated 25.04.2013 for an amount of Rs.10,000/ each towards the maintenance for the period of Iddat. The said cheques had been deposited by respondent No.2. Thereafter, respondent No.2 initiated the proceedings under the provisions of the Domestic Violence Act, 2005 (hereinafter referred to as the 'Act of 2005') in September 2013, wherein she has sought for Rs.20,000/ per month towards the maintenance and other expenses for her son and Rs.20,000/ per month towards the rent of the residential accommodation. The respondent No.2, thereafter, initiated the proceedings under subsection (1) of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the 'Act of 1986' for short). In the said proceedings also, the respondent No.2 has prayed for an amount of Rs.1 crore towards the future maintenance. The grievance of the petitioner is that without disclosing the aforesaid proceedings, the respondent No.2 has preferred Page 2 of 15 R/SCR.A/4/2015 CAV JUDGMENT an application under the provisions of Section 125 of the Code before the learned Family Court at Godhra and prayed for maintenance of Rs.50,000/ per month. The petitioner, therefore, moved an application Exh.15 before the learned Family Court with a prayer to reject the application filed by respondent No.2 seeking maintenance under Section 125 of the Code. However, the said application Exh.15 has been rejected by the larned Family Court and therefore the present petition is preferred before this Court by the petitioner - husband.
3. Heard learned advocate Mr. Nirad Buch for the petitioner and learned APP Ms. HB Punani for respondent No.1 - State of Gujarat.
4. Learned advocate for the petitioner mainly contended that when the respondent No.2 has initiated the proceedings under the provisions of Section 3 of the Act of 1986, she cannot initiate the proceedings under the provisions of Section 125 of the Code and therefore the learned Family Court ought to have allowed the application Exh.15 submitted by the petitioner by holding that the application under the provisions of Section 125 of the Code is not maintainable. Learned advocate for the petitioner further submitted that the Act of 1986 is a Special Act and therefore it would prevail over the Code and when the respondent No.2 has chosen to proceed against the petitioner under the provisions of the Act of 1986, subsequent application under the provisions of the Code, cannot be entertained. Learned advocate further submitted that respondent No.2 has sought for the monetary relief for future maintenance in her application filed under the Act of 1986 and therefore once such an application is made for future maintenance, an application for monthly maintenance under some other provisions of other statute, cannot be validly filed and simultaneously entertained, otherwise, this would lead to conflict of decision. Learned advocate Page 3 of 15 R/SCR.A/4/2015 CAV JUDGMENT relied upon the provisions of Section 4 of the Act of 1986 and contended that the proper remedy for the respondent No.2 is to approach under Section 4 of the Act of 1986 for redressal of her grievance and not under Section 125 of the Code. Learned advocate for the petitioner further contended that the respondent No.2 is earning Rs.30,000/ to Rs.40,000/ per month out of business of real estate and is having other source of income. Learned advocate for the petitioner alternatively submitted that if this Court is not inclined for quashing of the proceedings filed by the respondent No.2 under Section 125 of the Code then the proceedings of Criminal Misc. Application No.460 of 2013 be transferred from learned Family Court, Godhra to learned Family Court, Ahmedabad as the respondent No.2 and son are residing at Ahmedabad. Learned advocate further submitted that the minor son is studying in 3 rd standard in D.A.V. International School at Ahmedabad. Hence, the learned advocate has submitted that the cause, if any, has arisen to move the application under the provisions of Section 125 of the Code at Ahmedabad and therefore the said proceedings be transferred as prayed for.
5. On the other hand, learned APP Ms. HB Punani has pointed out that though the respondent No.2 has initiated the proceedings under the provisions of the Act of 2005 and Act of 1986, till today, the concerned Court has not passed any order of granting maintenance to the respondent No.2. The learned APP has submitted that the petitioner has given the application Exh.15 only with a view to delay the proceedings of Criminal Misc. Application No.460 of 2013. The learned APP has further submitted that even the respondent No.2 - wife has initiated the proceedings under the provisions of the Act of 2005 as well as the Act of 1986 before the concerned Court at Godhra, the petitioner has never raised any grievance with regard to transfer of those proceedings, and Page 4 of 15 R/SCR.A/4/2015 CAV JUDGMENT therefore, now, it would not be proper on the part of the petitioner to seek the transfer of the proceedings, which are initiated by the respondent no.2 under the provisions of the Code, from the learned Family Court at Godhra to the learned Family Court at Ahmedabad. Further, in counter to the contention raised by the learned advocate for the petitioner that the wife is earning handsome amount by way of business of real estate and from other source and therefore the proceedings under the provisions of Section 125 of the Code may be quashed, learned APP submitted that the Court may not deal with this contention at this stage since it is too early and premature for this Court to deal with this contention and the petitioner can very well raise this contention before the learned Family Court at an appropriate stage. Learned APP further referred to the provisions of Section 3 of the Act of 1986 and the provisions of Section 125 of the Code and submitted that it is open for the respondent No.2 - wife to initiate the proceedings under Section 125 of the Code and she can claim amount of maintenance per month from her husband. Learned APP further referred to the reasoning given by the learned Family Court while rejecting the application Exh.15 and submitted that no illegality is committed by the learned Family Court, and therefore, while exercising powers under Article 227 of the Constitution of India, this Court may not interfere with the impugned order passed by the learned Family Court. Learned APP relied upon the decision of the Hon'ble Apex Court in case of Shamim Bano v. Asraf Khan reported in 2014(5) Scale 299 and also the decision of this Court in case of Farhan Haji Gafar Gudda v. Rijwanaben Usmanbhai Patel & Ors. reported in 2013 (3) G.L.R. 2007 and contended that the contention on which the petitioner has questioned the impugned order is no more res integra. Learned APP thus submitted that the petition may be dismissed.
Page 5 of 15 R/SCR.A/4/2015 CAV JUDGMENT6. Having heard the learned advocates for the respective parties and having gone through the documents produced on record, it is clear that the petitioner has given an application Exh.15 in Criminal Misc. Application No.460 of 2013 before the learned Family Court at Godhra with a view to delay the proceedings initiated by the respondent No.2 - wife under Section 125 of the Code. From the record, it is further clear that the respondent No.2 initiated the proceedings under the provisions of the Act of 2005 on 16.09.2013 by submitting an application to the Protection Officer, wherein, she has claimed various relief/s. Thereafter, the respondent No.2 has filed an application under subsection (1) of Section 3 of the Act of 1986 before the learned Judicial Magistrate First Class, Godhra, wherein, she has prayed for grant of an amount of Rs.1 crore for future maintenance. In the meantime she has also initiated the proceedings under Section 125 of the Code before the learned Family Court at Godhra, wherein, she has prayed that the husband be directed to pay Rs.50,000/ per month by way of maintenance to her and her son. When this Court inquired from the learned advocate appearing for the petitioner about the orders passed by the learned Magistrate in the application preferred under the provisions of the Act of 1986 as well as in the application preferred under the provisions of the Act of 2005, the learned advocate for the petitioner fairly submitted that till today order of maintenance is not passed by the Courts below in favour of respondent No.2 - wife. Thus, prima facie, it is clear that though respondent No.2 - wife has initiated the proceedings and claimed the relief under the provisions of the Act of 2005, till today, the concerned Court has not passed any order in favour of the respondent No.2 - wife. Similarly, the learned Magistrate has also not passed any order granting future maintenance in favour of respondent No.2 - wife in the proceedings initiated under the provisions of the Act of 1986. At this stage, it is relevant to note that the aforesaid two proceedings are filed Page 6 of 15 R/SCR.A/4/2015 CAV JUDGMENT by respondent No.2 - wife alone, whereas the application under Section 125 of the Code is filed by respondent No.2 - wife as well as her minor son, who is studying in 3rd standard.
7. In the aforesaid factual aspects of the matter, now, I would like to refer to the relevant provisions of the Act of 1986 as well as the provisions of Section 125 of the Code. Section 3 of the Act of 1986 reads as under:
"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;
(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 subsection (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 Page 7 of 15 R/SCR.A/4/2015 CAV JUDGMENT application to a Magistrate for 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 subsection (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 no t been paid or that the properties referred to in clause(d) of subsection (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 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 subsection(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 subsection (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 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."
8. Now, the relevant part of the provisions of Section 125 of the Code reads as under:
Page 8 of 15 R/SCR.A/4/2015 CAV JUDGMENT"125. Order for maintenance of wives, children and parents.(1) If any person having sufficient means neglects or refuses to maintain
(a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this subsection, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.] Explanation.For the purposes of this Chapter, (a) "minor"
means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875); is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, Page 9 of 15 R/SCR.A/4/2015 CAV JUDGMENT or has obtained a divorce from, her husband and has not remarried.
[(2) ............
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(4) No Wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
9. Thus, from the aforesaid provisions of Section 3 of the Act of 1986, it can be seen that a divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband and is also entitled to 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, whereas, the provisions of Section 125 of the Code are meant for monthly maintenance to the wife.
10. In the case of Shamim Bano (Supra), as observed in para 7, "two issues came up for consideration before the Hon'ble Supreme Court, first was whether the appellant's application for grant of maintenance under Page 10 of 15 R/SCR.A/4/2015 CAV JUDGMENT Section 125 of the Code is to be restricted to the date of divorce and, as an ancillary to it, because of filing of an application under Section 3 of the Act after the divorce for grant of mahr and return of gifts would disentitle the appellant to sustain the application under Section 125 of the Code; and second, whether regard being had to the present fact situation, as observed by the high Court, the consent under Section 5 of the Act was an imperative to maintain the application." The Hon'ble Supreme Court, after considering the aforesaid provisions and various decisions of the Hon'ble Supreme Court, observed in para 13 as under:
"13. The aforesaid principle clearly lays down that even an application has been filed under the provisions of the Act, the Magistrate under the Act has the power to grant maintenance in favour of a divorced Muslim woman and the parameters and the considerations are the same as stipulated in Section 125 of the Code. We may note that while taking note of the factual score to the effect that the plea of divorce was not accepted by the Magistrate which was upheld by the High Court, the Constitution Bench opined that as the Magistrate could exercise power under Section 125 of the Code for grant of maintenance in favour of a divorced Muslim woman under the Act, the order did not warrant any interference. Thus, the emphasis was laid on the retention of the power by the Magistrate under Section 125 of the Code and the effect of ultimate consequence."
11. The Hon'ble Supreme Court further observed in para 15, 16 and 17 as under:
"15. Coming to the case at hand, it is found that the High Court has held that as the appellant had already taken recourse to Section 3 of the Act after divorce took place and obtained relief which has been upheld by the High Court, the application for grant of maintenance under Section 125 of the Code would only be maintainable till she was divorced. It may be noted here that during the pendency of her application under Section 125 of the Code the divorce took place. The wife preferred an application Page 11 of 15 R/SCR.A/4/2015 CAV JUDGMENT under Section 3 of the Act for grant of mahr and return of articles. The learned Magistrate, as is seen, directed for return of the articles, payment of quantum of mahr and also thought it appropriate to grant maintenance for the Iddat period. Thus, in effect, no maintenance had been granted to the wife beyond the Iddat period by the learned Magistrate as the petition was different. We are disposed to think so as the said application, which has been brought on record, was not filed for grant of maintenance. That apart, the authoritative interpretation in Danial Latifi (supra) was not available. In any case, it would be travesty of justice if the appellant would be made remediless. Her application under Section 125 of the Code was continuing. The husband contested the same on merits without raising the plea of absence of consent. Even if an application under Section 3 of the Act for grant of maintenance was filed, the parameters of Section 125 of the Code would have been made applicable. Quite apart from that, the application for grant of maintenance was filed prior to the date of divorce and hearing of the application continued.
16. Another aspect which has to be kept uppermost in mind is that when the marriage breaks up, a woman suffers from emotional fractures, fragmentation of sentiments, loss of economic and social security and, in certain cases, inadequate requisites for survival. A marriage is fundamentally a unique bond between two parties. When it perishes like a mushroom, the dignity of the female fame gets corroded. It is the law's duty to recompense, and the primary obligation is that of the husband. Needless to emphasise, the entitlement and the necessitous provisions have to be made in accordance with the parameters of law.
17. Under these circumstances, regard being had to the dictum in Khatoon Nisa's case, seeking of option would not make any difference. The High Court is not correct in opining that when the appellantwife filed application under Section 3 of the Act, she exercised her option. As the Magistrate still retains the power of granting maintenance under Section 125 of the Code to a divorced Muslim woman and the proceeding was continuing without any objection and the ultimate result would be the same, there was no justification on the part of the High Court to hold that the proceeding after the divorce took place was not maintainable."Page 12 of 15 R/SCR.A/4/2015 CAV JUDGMENT
12. This Court in the case of Farhan Haji Gafar Gudda (Supra), in para 12, observed as under:
"12. It was in light of the above mentioned decision that Hon'ble Apex Court considered the issue of applicability of Section 125 after enactment of the Act and the issue about the right of Muslim divorced woman to prefer application under Section 125 of the Code after enactment of the Act and to claim maintenance after Iddat period on the ground that she has not remarried and is not able to maintain herself/children staying with her. After considering the decisions in case of Mohd. Ahmed Khan v. Shah Bano & Ors. (supra), Iqbal Bano v. State of U.P. (supra), Danial Latifi (supra) and also upon considering the provisions under Section 125 of the Code and the provision under the Act, Hon'ble Apex Court observed and held in Shabana Bano v. Imran Khan (supra) that "......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. In the said decision Hon'ble Apex Court further observed that, "....... 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"
13. In view of the aforesaid decisions of the Hon'ble Supreme Court and this Court, it is clear that a divorced Muslim woman would be entitled to claim maintenance after Iddat period from her divorced husband as long as she does not remarry. Thus, from the aforesaid decisions, it is clear that the proceedings under Section 125 of the Code can be initiated by the divorced Muslim wife and she can claim monthly maintenance after Iddat period from her divorced husband as long as she does not remarry. Similarly, she can also initiate the proceedings under Section 3 of the Act of 1986, which is providing for grant of reasonable and fair maintenance within the Iddat period. Be that as it may, it is also Page 13 of 15 R/SCR.A/4/2015 CAV JUDGMENT clear from the record that till today no amount is awarded towards maintenance to the respondent No.2 - wife either in the proceedings filed by her under the provisions of the Act of 2005 or in the proceedings under the provisions of Act of 1986 and therefore when she has filed the proceedings under Section 125 of the Code, it cannot be said that it is not maintainable and more particularly the said proceedings are initiated by the respondent No.2 - wife as well as her minor son.
14. Now, so far as the contention with regard to the income of respondent No.2 is concerned, the petitioner has not produced any documents from which it can be said that the respondent No.2 is earning handsome amount and she is able to maintain herself as well as her minor son. In absence of any evidence with respect to the income of the petitioner, at this stage, it is very difficult for this Court to come to a definite conclusion with regard to the income of respondent No.2 and as suggested by learned APP, the petitioner can very well raise this issue before the learned trial Court at an appropriate stage.
15. The learned advocate for the petitioner alternatively prayed that if this Court is not inclined to quash the impugned order passed by the learned Family Court, Godhra, the proceedings initiated under the provisions of Section 125 of the Code be transferred from Family Court at Godhra to Family Court at Ahmedabad. In this regard, it is relevant to note that the respondent No.2 - wife has initiated different proceedings under the provisions of the Act of 2005 as well as the Act of 1986 before the concerned Courts at Godhra and at no point of time, the petitioner - husband has raised any objection with regard to transfer of those proceedings. It prima facie appears that this prayer is made only with a view to delay the proceedings and by raising the point of transfer, the petitioner is trying to escape from his liability of paying a fair and Page 14 of 15 R/SCR.A/4/2015 CAV JUDGMENT reasonable maintenance to his divorced wife and his minor son.
16. Thus, it follows from the foregoing discussion that the contention on which the petitioner has questioned the impugned order is no more res integra and the Hon'ble Apex Court has settled the issue and clarified the legal position in various decisions. Hence, the petition challenging the impugned order passed by the learned Judge, Family Court, Godhra below application Exh.15 in Criminal Misc. Application No.460 of 2013, must fail. The impugned order does not suffer from any infirmity. The order is in consonance with the observations made by and legal situation clarified by Hon'ble Apex Court and therefore it does not warrant any interference in petition under Article 227 of Constitution of India. Therefore, the petition deserves to be rejected and is accordingly rejected.
(VIPUL M. PANCHOLI, J.) Jani Page 15 of 15