Gauhati High Court
Md. Afsar Ali Khan vs Mustt. Subia @ Sahida Khatun on 7 February, 1990
Equivalent citations: II(1991)DMC559
JUDGMENT S. Haque, J.
1. The petitioner impugnes the order dt. 29.7.83 passed by the Sessions Judge in Crl. Revision No. 16 (1) 83 granting maintenance, allowance to the opp. party Mustt. Subia alias Sahida Khatun by setting aside the order dt. 12.1.83 of the Judicial Magistrate, Dhubri in Misc. Case No. 84/79 Under Section 125 of the Cr.P.C.
2. Mustt. Subia alias Sahiba was wife of Afsar Ali and had 3 children. But Afsar Ali divorced her on 23.6.79 and he married another woman. She had no source of income to maintain herself and so she filed the case under Sec. 125 Cr.P.C. Afsar Ali contested stating that he divorced her as she had adulterous connection with one Sanowar Ali and gave her 'muharana amount and maintenance for the iddat period and so, not liable to pay any further maintenance under Section 125 Cr.P.C.
3. The Magistrate rejected the petitioner of Mustt. Sahida Khatun. She preferred the revision and the Sessions Judge vide order dt. 29.7.83 set aside the order of the Magistrate and allowed the maintenance petition Under Section 125 Cr.P.C. and granted maintenance at the rate of Rs. 25/- per month.
4. Learned Magistrate committed serious misappropriation of evidence leading to mis-marriage of justice, and therefore the Sessions Judge committed no error to look into the evidence of the parties in revision. The Sessions Judge had scrutinised the evidence of the opposite party (Afsar Ali) and found that the charge of adultry against Sabia Sahida Khantun was not proved. Afsar Ali never disclosed to the neighbours about her adulterous life, now any neighbour was cited as witness to say about Sonowar Ali visiting house of Afsar Ali in his absence to meet Sahida Khatun, The 2 minor children living with Afsar Ali were under his full control and influence to depose as tutored. As Afsar Ali married another woman after divorcing Sahida Khatun, he manufactured the false plea in order to avoid paying maintenance to his divorced wife Sahida Khatun. Learned Sessions Judge had rightly held that the charge of adulterous life by Sahida during her stay in the house of Afsar Ali had not been proved; and there was no iota of evidence at all that she was living in adultry after divorce. She was living in her parents house.
5. Afsar Ali could not prove that he gave the expenses of iddat period and the 'Muharana amount'. Talak was given under a talaknama and it was not mentioned therein that Muharana amount was paid and that iddat period expenses had also been given when she was driven out of the house on divorce. The defence plea of payment of muharana in the written statement and during argument would not debar Sahida Khatun from claiming muharana independently according to law. Payment of muharana would not free the husband from liability of paying maintenance under Section 125 Cr.P.C. Payment of muharana could not be proved by Afsar Ali. Muharana is a legitimate due to the wife; it is the duty of husband and compulsory for him to pay the muharana during the subsistance of marriage and on dissolution of marriage by operation of law or by divorce, the lady had right to claim it and there is no time limit for claim.
6. Sahida Khatun, a divorced lady, was regarded as 'wife' under the law untill her remarriage acceding to explanation (b) of the proviso of Sub-section (1) of Section 125 of the Cr.P.C. for the purpose of claiming maintenance. She had no source of income. Afsar Ali was an able bodied man and was maintaining his second wife and children of the previous wife. He is bound to maintain his former wife Sahida Khatun till she is remarried. She was earning livelihood by working here and there. She was not a bagger while she was living as wife of Afsar Ali, then why she should be put under compulsion to be a bagger by impressing the seal of becoming a divorced lady to which Afsar Ali was responsible. Afsar Ali is duty bound to maintain her till she Is remarried or till she acquires property/income of sufficient volume which would be enough for her maintenance.
7. It is very much surprising as to how the Sessions Judge fixed Rs. 25/- per month for her maintenance and living rest to earn by bagging or working here and there. Rs. 251- will not even meet her expenses for a lady. Has this Court power to revise it suo-moto ? Certainly it has such power considering the facts and circumstances of the case and the Court will be failing in duty if the revision in the rate of maintenance is not made to-wards higher degree. It is a fit case to exercise such power. When injustice or inadequacy is forced upon a weaker Section of the society and is brought or comes to the notice of the High Court, it becomes the duty to put it at the standard of justice and adequacy. This Court decide to alter and raise maintenance allowance to Rs. 100/- per month and with observation that this amount would also be very meager for her maintenance but done so considering the economic status of Afsar Ali and that he is also to maintain other members of his family.
8. Learned Counsel Mr. T.C. Majumdar submits that the petitioner Afsar Ali is protected under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 and not liable to pay maintenance as Sahida Khatun is divorced lady, Mr. A.S. Choudhury submits that the provisions of the Act is not applicable to this case because this case ended in the year, 1983 long before the commencement of the Act 1986 and in support of his submission refers this Court's Division Bench Judgment dt. 8.3.88 reported in 1988 G.L.R. (II) Page 1. It was made clear by this Court in that case (Idris All v. Ramesha Khatun) that the provisions of the Act, 1986 have no retrospective force and it covered the cases filed after the Act, 1986 comes into force and to those cases pending Under Section 125 or 127 Cr.P.C. when the Act was brought into force. There can be no controversy on this point any more. Mr. Choudhury's submissions carry force. The petitioner cannot escape from his liability of paying the maintenance to his former wife Sahida Khatun, and the provisions of that Act, 1986 are of no help to him.
9. This revision is dismissed. The rate of maintenance allowance is altered and raised to Rs. 100/- per month with effect from 1st day of August, 1983. The petitioner Afsar Ali is directed to pay all arrear amounts within 6 (six) months and to pay regularly the monthly maintenance allowances from February, 1990.
10. Send down the records immediately for actions by the Court below.