Orissa High Court
Begum Bibi And Ors. vs Abdul Rajak Khan on 29 June, 1994
Equivalent citations: 1995CRILJ604
Author: A. Pasayat
Bench: A. Pasayat
ORDER A. Pasayat, J.
1. Petitioner No. 1's application under Section 125, Code of Criminal Procedure, 1973 (in short, 'Code') having been held to be not maintainable by the learned Judicial Magistrate, first class, Bhadrak, she has moved this Court for interference.
2, Facts situation is almost undisputed and needs no elaborate reference. Bare essentials are as follows:
Petitioner No. 1 filed a petition claiming maintenance of Rs. 1,000/- per month, i.e., Rs. 500/-for herself, Rs. 250/- each for two minor children from the opposite party. According to her, opposite party demanded cash of Rs. 5,000/- from her father for acquisition of a tailoring shop. On refusal he forcibly took away the ornaments from her possession along with other valuables, and drove her away from his house along with two minor children after taking her left hand thumb impression on blank papers. Though he was duty bound to maintain her and the children, and she was unable to maintain themselves, opposite party without any reasonable cause refused to do so.
3. Opposite party resisted the claim taking the stand that the application was not maintainable as he had divorced the applicant-petitioner No. 1 by reciting the word 'Talaq' three times on 17-7-1989. A cash of Rs. 5501 /- was paid to her as mahr money, in addition to Iddat money. Further land measuring 20.5 decimals was given under custody of petitioner No. 1 on 10-12-1984 for marriage of petitioner No. 2 and for maintenance of petitioner No. 1. He also agreed to pay Rs. 60/- for maintenance of petitioner No. 2. Accordingly he prayed for dismissal of the application.
4. Evidence was led by the parties in support of their respective claims. By the impugned order, learned JMFC treated the application to be one under Muslim Women (Protection of Rights on Divorce) Act, 1986, (in short, the 'Act'). He held that on the established facts the applicant was not entitled to an order for maintenance. Learned Magistrate further held that the children are not entitled to maintenance under the Act in view of the provisions contained in Section 3(1)(b) of the Act.
5. Learned Counsel for the petitioners submitted that the view of the court below is erroneous and misconceived in law. Since there is no provision for the minor children in the Act, learned JMFC should have held the application to be maintainable under the Code, so far as the children are concerned. Learned Counsel for opposite party on the other hand submitted that the conclusions of the learned trial Magistrate about divorce are irreversible, and therefore, petitioner No. 1 is not entitled to any relief. There being no provision under the Act for minor children beyond certain age, conclusions of learned Magistrate are on terra firma. The contentions need careful consideration.
5A. Provisions contained in Sections 125 to 128 of the Code would have no application, and proceeding at the instance of a divorced wife would not be maintainable, except in cases covered by Section 5 of the Act. Certain provisions of the Act need be referred for resolving the interesting dispute. Section 3(1)(a) of the Act envisages making of reasonable and fair provision and payment of maintenance to the divorce wife commensurable with the period of Iddat. A contrary view would defeat the purpose for which the legislation is made. Provisions contained in Section 4 cast liability on the relatives or the Wakf Board, as the case may, for payment of maintenance to the divorced woman, if she is not remarried or is unable to maintain herself after the Iddat period. It fortifies the view that the liability to pay maintenance does not extend beyond the period of Iddat. In view of what has been stated in Section 5, if the husband and wife exercised their option in the manner provided, they would be governed by provisions contained in Sections 125 to 128 of the Code, and Section 7 of the Act. Similar view was taken by this Court in Criminal Revision No. 623 of 1988 disposed of on 13-11-1991, in Munal Baig v. Sakafun Bike (1992) 4 OCR 362, and in Riswana Begum v. Mly. Motiulla (1992) 5 OCR 703. Similar view has also been taken by the Andhra Pradesh High Court in Usman Khan Bahamani v. Palhimunnisa Begum, AIR 1990 Andh Pra 225: (1990) Cri LJ 1364) (FB), by the Patna High Court in Md. Yunus v. Bibi Phenkani alias Tasrun Nisa (1927) 2 Crimes 241, and by the Rajasthan High Court in Abid Ali v. Mst Raisa Begum (1988) 1 Rajasthan LR 104. A contrary view expressed by the Gujarat High Court in Arab Ashemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai, AIR 1988 Gujarat 141, does not reflect true intention of the legislature, as even a bare reading of the provisions would show.
A combined and harmonious reading of provisions of Sections 3 to 7 of the Act clearly demonstrates that the general object is to bring law of maintenance payable in consonance with the principles of Muslim Law, and therefore Sections 125 to 128 of the Code will have no application, unless option of parties in terms of Section 5 of the Act is exercised. Liability of the husband is limited for and during the period of Iddat. Tyabji's Muslim Law (4th Edition, pages 268-269) states the position as follows:
On the expiration of the iddat after talaq the wife's right to maintenance ceases whether based on the Muslim Law, or on an order under the Criminal Procedure Code.
Similar view has been expressed by Mulla in Mahommedan Law (18th Edition, para 279 at page 301).
6. There is some amount of dispute whether there was divorce. Mulla in Principles of Mohammedan Law, 18th Edition, page 327 has stated as follows:
If a man says to his wife that she had been divorced yesterday or earlier, it leads to a divorce between them, even if there be no proof of a divorce on the previous day or earlier.
While considering an aspect of the Mohammedan Law, one should not be influenced by one's sense of rigid approach as regards marriage and divorce applicable to Hindus or Muslims. The quoted portion from Mulla clearly shows that under the Mohammedan Law, husband is in an advantageous position and has been conferred a special right not only to divorce the wife orally in the manner provided under the Mohammedan Law but also by issuing a notice or filing a written statement in defence to a maintenance claim. A similar view expressed by the Andhra Pradesh High Court in Mohammad Ali v. Fareedunnisa Begum, AIR 1970 Andh Pra 298, was held to be laying down the correct position in law by this Court in Sk. Mohiuddin v. Hasina Bibi, (1988) 2 Orissa 163, and in Sayed Newaj Alii alias Neti v. Rasida Begum, (1991) 22 OJD 212 (Criminal).
7. Provisions of Section 125 of the Code would be applicable to the case of a divorced muslim woman only if both parties exercise their options at the first hearing of the application under Section 3(2) of the Act and not in any other case. Therefore, the learned Magistrate was justified in holding that provisions of Section 125 have no application and the application has rightly been treated as one under Section 3 of the Act.
8. So far as minor children are concerned, unless they arc of a particular age as prescribed in Section 3, their claim cannot be considered in a proceeding under the Act. But the question is can they be left without remedy. The answer is an emphatic no as an application under Section 125, of the Code is maintainable. Provisions of Section 125, of the Code are not repugnant to the Act, and children of divorced wife and husband who cross the age prescribed in Section 3(1)(b) are entitled to maintenance under Section 125, of the Code. Right to claim such maintenance is not taken away under Section 3 of the Act, and on the contrary gives additional safeguard to the children.
9. The learned Judicial Magistrate was not required, and ought not to have made any analysis so far as claim of minor children is concerned while dealing with petitioner No. 1's claim. In the peculiar circumstances of the case, therefore, while upholding the decision of the learned Magistrate so far as petitioner No. 1 is concerned, I direct that in case an application is made under Section 125, of the Code so far as petitioners 2 and 3 are concerned, the same shall be considered and disposed of in accordance with law by the learned Magistrate uninfluenced by his conclusion relating to their claim in the order under challenge.
The revision application is accordingly disposed of.