Andhra HC (Pre-Telangana)
Syed Iqbal Hussain vs Syed Nasamunnissa Begum And Ors. on 5 August, 1991
Equivalent citations: 1992CRILJ1823
ORDER
1. The husband is the revision petitioner. His wife filed M.C. 41/83 in the court of the II Metropolitan Magistrate, Hyderabad for maintenance u/S. 125, Cr.P.C. for her herself and her three minor children. The learned magistrate has awarded maintenance at Rs. 200/- per month for the wife and Rs. 100/- per month for each of the three children. The husband preferred Crl.R.C. 128/85 to this court and the maintenance was reduced to Rs. 125/- per month for the wife while confirming the maintenance awarded to the children.
2. While so, the wife and children filed M.C. No. 60/89 on the file of the II Metropolitan Magistrate, Hyderabad u/S. 127, Cr.P.C. claiming enhancement of maintenance at the rate of Rs. 500/- per month for each of them. The wife was divorced on 23-5-89. The learned magistrate has enhanced the maintenance to Rs. 300/- per month for the wife from 27-7-88 to 23-5-89. So far as the minor children are concerned, the learned magistrate enhanced the maintenance from Rs. 100/- Per month to Rs. 175/- per month each from 27-7-88 to 23-5-91.
3. Aggrieved by the said decision, the husband has preferred this revision direct to the High Court. The learned counsel for the respondents raised a preliminary objection as to the maintainability of the revision on the ground that the petitioner should have first preferred the revision to the Sessions Judge before approaching this Court. Section 397 Cr.P.C. confers concurrent jurisdiction on the High Court as well as the Sessions Judge in dealing with the revisions against the orders passed by any subordinate criminal court. Though the normal procedure which is adopted is that any person aggrieved by the order of the Metropolitan Magistrate must prefer revision to the Sessions Judge and then if he is aggrieved by the order file a revisions in the High Court, since S. 397, Cr.P.C. confers concurrent jurisdiction on the High Court also, I hold that the revision cannot be dismissed in limini on the ground that the revision filed in the High Court without exhausting the remedy before the Sessions Judge is not maintainable.
4. As regards the merits of the case, the learned counsel for the petitioner argued that with the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act) the right to claim maintenances or enhancement of maintenance by the divorced women is taken away. In support of his contention he relied upon the Full Bench Decision of our High Court in Usman Khan Bhahamani v. Fathimunnisa Begum . It is held in that case that a divorced Muslim wife cannot claim maintenance under S. 125, Cr.P.C. after the passing of the Act and that the liability of the husband is limited for and during the period of Iddat.
5. The Full Bench held that "a combined and harmonious reading of the provisions of Ss. 3 to 7 of Muslim Women (Protection of Rights on Divorce) Act, 1986 already demonstrates, that the general object of the legislations is to bring the law of maintenance payable to the wife in consonance with the principles of Muslims law and, therefore, the provisions of Ss. 125 to 128 of the Code will have no application to the Act of 1986 except in case of option exercised by the parties u/S. 5 of the Act to any such claim of maintenance made by the wife u/S. 125 of the Code.
6. Relying upon that passage the learned counsel for the petitioner submitted that in the application for enhancement of maintenance filed u/S. 127 of Cr.P.C. is not maintainable. A majority of the Full Bench while holding that a divorced Muslim wife cannot claim maintenance u/S. 125 of the Crl. Procedure Code after passing the Act, held that the liability of the husband is limited for and during the period of Iddat. Therefore, the order of the learned magistrate enhancing the maintenance is perfectly correct. But the mistake committed by him is that instead of awarding the enhanced rate of maintenance even during the period of Iddat, he was confined the enhanced maintenance only to 23-5-1989 which is the date of divorce. That is not correct, I, therefore, hold the claim of the divorced muslim wife for enhanced maintenances should be limited not only to the date of divorce but also during the period of Iddat. The submission of the learned counsel for the petitioner that after the passing of the Act no application is maintainable u/S. 127 of the Criminal Procedure Code, therefore holds good for the period beyond the period of Iddat of a divorced wife.
7. Another submission made by the learned counsel for the petitioner is that by virtue of S. 3(i)(d) of the Act, the minor respondents 2 to 4 are not entitled for any maintenance, let alone enhanced rate of maintenance, beyond the period of two years from the respective dates of birth of such children. He therefore submitted that the learned magistrate is not justified in awarding the enhanced rate of maintenance up to 23-5-91 i.e. for two years after the period of divorce.
8. The provision of S. 3(i)(b) is subject matter of interpretation by my learned brother Y. Bhaskar Rao J. in Shaik Mahaboob Basha v. Shaik Karimunnisa Begum (2) (1989) 2 Andh LT 292 : (1989 Cri LJ 2295) and M. A. Hameed v. Arif Jain (3) 1990 Cri LJ 96 (Andh Pra). The learned judge held that the provision of S. 125, Cr.P.C. are not repugnant to the Act and that the children of divorced wife and husband who cross the age of two years are entitled to maintenance u/S. 125, Cr.P.C. The learned judge held that the right of child to claim maintenance u/S. 125 of Cr.P.C. is not taken away by S. 3 of the Act, but it has given additional safeguard to the children as in the cases referred to above. The maintenances was awarded in this case in MC 41/83 much earlier to the commencement of the Act. As held by the learned judge, there is no provision under the Act taking away the right of child to claim maintenance u/S. 125 of Cr.P.C. and that the cancellation of maintenance granted to the child is erroneous. The learned counsel for the revision petitioner argued that the above two decisions No. 2 and 3 supra have been rendered, before the full bench has decided the scope and effect of the provisions of the Act and, therefore, no reliance can be placed upon the decision Nos. 2 and 3 supra and the view taken by the Full Bench that Ss. 125 to 128 of Cr.P.C. have no application subsequent to the passing of the Act must be relied upon. But the Full Bench has considered only the right of a divorced Muslim wife to claim maintenance. The Full Bench has no occasion to consider the scope and effect of Section 3(i)(b) as applicable to the minor children of a divorced wife. That being the case, the decisions of my learned brother Bhaskar Rao, J. in Nos. 2 and 3 supra held the field and they operate as binding precedent. Relying, therefore, upon the two decisions I hold that in spite of the passing of the Act the right of a Muslim child to claim enhanced rate of maintenace u/S. 127, Cr.P.C. is not taken away. If so, it follows that the minor children (respondents 2 of 4) are entitled to claim maintenance u/S. 125 of Cr.P.C. till they attain majority or respondents 2 to 4 are married, whichever is earlier.
9. The last submission made by the learned counsel for the revision petitioner is that under the provisions of clause (1) of S. 125 the magistrate is empowered to award maintenance "not exceeding Rs. 500/- in the whole" whereas the total maintenance awarded by the learned magistrate comes to Rs. 825/ for wife as well as the children. The learned counsel therefore argued that the maximum amount that a magistrate is empowered to award by way of maintenance or enhanced maintenance is only Rs. 500/- per month and the magistrate has committed grave error in enhancing the maintenances to Rs. 300/- per month for wife and Rs. 175/- per month for each of the three children which exceeds the limit prescribed u/S. 125, Cr.P.C. That version cannot be accepted in the light of the decision of the Supreme Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal (4) . In that case the Supreme Court has clearly laid down that the words "in the whole" occurring in S. 125 Cr.P.C. cannot be interpreted to mean that the total amount awarded for the wife child, mother and father together cannot exceed Rs. 500/- and what the section plainly means is that the court cannot grant more than Rs. 500/- for each one of the claimants. Their Lordships clarified that the words "in the whole" in the context mean, taking all the items of maintenance together but not all the members of the family. In view of the interpretation given by the Supreme Court, the contention of the learned counsel for the petitioner cannot be accepted.
10. The next question that arises for consideration is whether the mistakes pointed out by the learned counsel for the respondents can be rectified in the revision in spite of the fact that the respondents have not filed a revision against the order of the learned magistrate confining the enhanced rate of maintenance to the wife only up to 23-5-1989 which is the date of divorce and confining the quantum of enhanced rate of maintenance to the minor children up to 23-5-1991. Section 397 empowers the High Court or the Sessions Judge to call for and examine the record of any proceeding before the inferior criminal court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or an order recorded or passed. The High Court has got ample suo motu power to call for and examine the record of any inferior court. That being the case, even though the revision has been filed by the husband challenging the correctness of the order of the learned magistrate, when certain other irregularities have come to light at the instance of the respondents, the High Court is empowered to rectify these mistakes in exercise of its revisional jurisdiction I, therefore, hold that in spite of the fact that the wife and minor children of the petitioner have not filed a separate revision petition, the mistakes brought to light at the instance of the respondent's counsel can by all means set right while disposing of the revision filed by the husband.
11. In the result, while dismissing the revision petition I hold that the first respondent (wife) is entitled for enhanced rate of maintenance of Rs. 300/- per month up to three lunar months after 23-5-91 (the period of Iddat) and that respondents 2 to 4 the minor children, are entitled for enhanced rate of maintenance till they attain majority or respondents 2 to 4 get married, whichever is earlier.
12. Revision dismissed.