Andhra HC (Pre-Telangana)
M. Subhan vs Maqbul Bee And Anr. on 24 September, 1991
Equivalent citations: 1991(3)ALT603, 1992CRILJ2612
ORDER
1. This Criminal Revision Case is filed by the husband against the order in Crl.M.P. No. 569 of 1988 in M.C. No. 34 of 1979 on the file of the Judicial First class Magistrate's Court, Hindupur. The wife filed a petition in Crl.M.P. No. 569 of 1988 claiming enhancement of maintenance from Rs. 125/- to Rs. 500/- per month. She pleaded that there is an increase in the income of the husband and her life has become costly and even for her absolute needs she would require maintenance of Rs. 500/-.
2. The husband resisted the petition on the ground that the various allegations about his income are not proper and that exaggerated claims are made in the petition. He took the plea that his wife was divorced long ago and as she is a divorced wife, after the passing of the Muslim Women's (Protection of Rights on Divorce) Act No. 25 of 1986 it is not open to the wife to claim maintenance under S. 125, Cr.P.C. and Ss. 125 to 128, Cr.P.C. are not available to her.
3. After a very elaborate enquiry, the Court came to the conclusion that the plea of divorce was negatived earlier even in MC proceedings and the same finding has been confirmed in the appellate Court and in the revisional Court and that the plea of divorce set up during the pendency of Crl.M.P. No. 569 of 1988 is not proved and hence Act 25 of 1986 is no bar for the claim and that considering the increase in income and the changed circumstances the husband is liable to pay enhanced maintenance of Rs. 300/- per month. Aggrieved by the same, the present revision is filed.
4. In the memorandum of grounds in revision it is stated that earlier, by consent the order of maintenance awarded at Rs. 75/- was enhanced to Rs. 125/- per month and hence the subsequent petition Crl.M.P. No. 569 of 1988 is not maintainable. There is not much change of circumstances to justify the filing of the Crl.M.P. No. 569 of 1988. It is also claimed that the enhancement of maintenance to Rs. 300/- is absolutely unwarranted and illegal. As the earlier application was allowed on the basis of consent of parties, the application should have been dismissed.
5. During the course of arguments, Mr. Syed Sharif Ahmed contended that apart from the grounds mentioned in the memorandum of revision Act 25 of 1986 is a complete bar for the maintainability of the petition. He contends that after Act 25 of 1986 has come into force, no proceedings can be taken by a divorced Muslim Woman under S. 125, Cr.P.C. Only with regard to the spouses who have opted under S. 5 of the Act 25 of 1986 to be governed by the provisions of Ss. 125 to 128, Cr.P.C., the proceedings under Criminal Procedure Code would be available. Mr. Syed Shariff Ahmed claims that under S. 7 which provides for transitional provisions every application by a divorced woman under S. 125 or under S. 127, Cr.P.C. pending at the time of the commencement of the Act should be decided only in accordance with the provisions of the Act. He contends that in this particular case though the plea of divorce which was taken in M.C. No. 34 of 1979 was negatived by the Court, by sending Ex. D-5 and by communicating the notice of Talaq, the husband has divorced the wife and under the Muslim law, a Mohammedan husband is entitled to divorce the wife even in the absence of the wife and mere communication of Talaq to the wife would effect the divorce. The husband would be liable to pay maintenance for the Iddat Period. He claims that in the present proceedings of Crl.M.P. No. 569 of 1988 Talaq was once again pronounced the communicated to the wife and hence no relief can be granted to the wife.
6. On behalf of the respondent-wife, Mr. O. Manohar Reddy, contends that this is a case of woman who is not divorced by the husband. The maintenance has been granted by the Court long prior to the enactment of Act 25 of 1986. In fact, the plea of divorcing the wife which was taken in the maintenance proceedings was negatived by the Court. Subsequently maintenance was granted and in a petition filed in 1985 Crl.M.P. No. 712 of 1985, by consent of parties, maintenance was enhanced from Rs. 75/- to Rs. 125/- per month as per the order dated 3-7-1987. In such circumstances, it is not open to the petitioner to plead that there was a divorce. In the present proceedings also, the Court held that D-5 is not proved and there is no proof of Talaq being communicated to the respondent. The order passed by the Court enhancing the maintenance is perfectly justified and hence the revision should be dismissed. Mr. Manohar Reddy also contends that the plea passed upon Act 25 of 1986 was not taken in the grounds of revision and hence the petitioner's counsel should not be permitted to advance any arguments on the basis of Act 25 of 1986.
7. The two points that arise for consideration in this revision are :
1. Whether the Order granting maintenance and enhancement of maintenance is liable to be set aside by reason of Act 25 of 1986 coming into force
2. Whether the enhancement granted by the Magistrate in justified.
POINT NO. 2 :
8. As far as the facts are concerned, the Magistrate has elaborately discussed the increase in income the acquisition of properties by the husband and the income from the lands and came to the conclusion that though the amount need not be enhanced to Rs. 500/- as claimed by the wife, the enhancement of maintenance from Rs. 125/- to Rs. 300/- per month is just and proper. The Court took into consideration that the salary of the husband had increased and that he is getting a large amount as D.A., overtime allowance and batta and that he has income from the lands, house rents and he has regular income from the pety shop and so enhancement to Rs. 300/- per month is justified. Normally the revisional Court will not go into the question of fact regarding the quantum of maintenance and hence it is unnecessary for this Court to disturb the finding of fact regarding the quantum of enhancement. I hold Point No. 2 in favour of the respondent.
POINT NO. 1 :-
9. It would be remembered that the original M.C. No. 34 of 1979 was filed and maintenance was awarded at Rs. 75/- per month. In the main M.C. proceedings, the respondent-husband took the plea of his having divorced the wife but that plea was disbelieved and the finding of the Magistrate's Court was confirmed even at the stage of revision. Subsequently Crl.M.P. No. 712 of 1986 was filed by the wife claiming enhancement of maintenance. By consent order dated 3-7-1987, the maintenance was enhanced to Rs. 125/- per month which was passed more than one year after coming into force of Act 25 of 1986. Act 25 of 1986 came into force on 19-5-1986. Thus it is clear that at the stage of Crl.M.P. No. 712 of 1985, the present revision petitioner-husband did not take the plea that by virtue of passing of Act of 25 of 1986, he is no longer liable to pay maintenance. It is significant to remember that the order dated 3-7-1987 is based upon consent of parties.
10. Mr. Syed Shariff Ahmed proceeded on the basis that petitioner in Crl.M.P. No. 569 of 1988 is a divorced wife. This fact is not correct. In fact, having failed in that plea earlier, he has now come forward with the new theory of his sending the notice of Talaq on 12-10-1988. In fact in the counter filed in the Crl.M.P. No. 569 of 1988, he never mentioned when he divorced the petitioner and by what mode or process he divorced her. There was no mention of his pronouncing Talaq and communicating it by way of notice. Much less is there any mention of sending notice of Talaq on 12-10-1988. In para 4 of the counter filed on 29-8-1988, he only pleaded that as per Act 25 1986, she is a divorced wife and hence is not entitled to maintenance. Ex. D-4 notice obviously came into existence as an after thought nearly 1 1/2 months after filing the counter. The learned Magistrate, after an elaborate consideration of evidence on this aspect, came to the conclusion that Ex. D-5 Talaq nama is not proved before the Court and D.W. 2 who was examined on that aspect was not produced for the purpose of cross-examination. The Court recorded its finding in the following terms : "Therefore, the plea of the respondent that he has given divorce is not proved before the Court beyond reasonable doubt". When there is no proof of divorce, there is no question of the application of Act 25 of 1986 to the claims of the parties.
11. Mr. Syed Shariff Ahmed, relying upon several decisions viz., Syed Jaamaluddin v. Valian Been, (1975) 2 APLJ (HC) 20 : (1975 Cri LJ 1884), Mohammad Ali v. Fareedunnisa, , Modh. Shamsuddin v. Noor Jahan Begum, AIR 1955 Hyd 144 : (1955 Cri LJ 950), contends that according to the Hanafi law, for a valid pronouncement of divorce (Talaq) the presence of the wife is not necessary and it can validly be given in her absence and that it comes into effect from the time it is communicated to the wife. He also contends, placing reliance upon these decisions, that the liability of the husband is only to pay maintenance for the period of Iddat and he has no liability to pay maintenance for the period beyond the Iddat period. The legal position enunciated in these three decisions is not in dispute. But on the facts of the present case, there is no proof of a valid divorce between the parties. The alleged Talaqnama and the Talaq notice are not proved. Abdul Khader v. Azeeza Bee, AIR 1944 Mad 227 : (1944 (45) Cri LJ 672), lays down that in case of Talaq in the absence of the wife, the wife would be entitled to maintenance till she comes to know of it but not afterwards. This decision seems to be taking the extreme view and it does not even grant the maintenance for the period of Iddat commencing from the time of the wife coming to know of the pronouncement of Talaq. Mohammad Ali v. Fareedunnisa (supra) and Syed Jamaluddin v. Valian Bee (supra) lay down that in cases where the wife makes a demand for maintenance and then the husband issued a notice to the effect that she had already been divorced, then the wife is entitled to maintenance only for three months from the date of notice because the Talaq takes effect from the time of notice.
12. Mr. Syed Shareef Ahmed placed reliance on the provisions of the Act 25 of 1986 and claimed that by virtue of S. 7, the wife is not entitled to maintain the proceedings in Crl.M.P. No. 569 of 1988. I am afraid, this argument is not sound and it is not based upon a correct understanding of S. 7 of the Act. Section 7 of the Act reads as follows :
"Every application by a Divorced Woman under section 125 or under Section 127 of the Code of Criminal Procedure, 1973 (2 of 1974) pending before a Magistrate on the commencement of this Act shall, notwithstanding anything contained in that Code and subject to the provisions of S. 5 of this Act be disposed of by such Magistrate in accordance with the provisions of this Act."
It is significant to remember that according to the language of S. 7, every application by a divorced woman under S. 125 or under S. 127, Cr.P.C. pending before a Magistrate at the commencement of this Act alone will have to be disposed of in accordance with the provisions of the Act. This application was actually filed on 20-4-1988, nearly two years after the commencement of the Act. S. 7 of Act 25 of 1986 cannot be invoked in the present case.
13. Mr. Syed Shariff Ahmed placed strong reliance upon All India Muslim Advocates Forum v. Osman Khan Brahmani, (1990) 1 Andh LT 560 (FB) and claimed that operation of the provisions of S. 125 or S. 127, Cr.P.C. are excluded on the commencement of Act 25 of 1986 and a divorced Muslim woman cannot claim maintenance under S. 125, Cr.P.C. from her former husband after the passing of Act 25 of 1986. I may make it clear that as regards the scope of S. 3 of the Act, my views are more in consonance with the views of the dissenting judge Justice Bhaskar Rao and the views expressed by the Kerala High Court in Ali v. Sufaira, (1988) 3 Crimes 147. In my considered opinion, the correct interpretation of law regarding S. 3 of the Act is the one given by Justice Sreedharan in the Kerala decision. The views expressed by the dissenting Judge in the Full Bench judgment of the A.P. High Court are in consonance with the same. In my humble opinion, the legislative intent evident from S. 3 of the Act is that the Act contemplated different things to be provided for the divorced woman. Under Clause (a) of S. 3(1) a reasonable and fair provision and maintenance are contemplated. They should be paid to her within the Iddat period. Under Clause (c), the amount equal to Meher or dower should be paid. Under Clause (d) all properties given to her before or at the time of the marriage or after marriage including the gifts given by relatives and friends of the husband should be returned to her. When the legislature stipulates different things to be given to the divorced wife, it would be unjust and inequitable to give restricted interpretation so as to indicate that the reasonable and fair provision and maintenance for the Iddat period are one and the same. When this Act is described as beneficial legislation brought in for the amelioration of divorced Muslim Women, canons of interpretation require that a liberal interpretation should be given. In my humble opinion, the majority judgment of the Full Bench in All India Muslim Advocates Forum v. Osman Khan Brahmani, (1990 (1) Andh LT 560) (supra) has given a restricted and a narrow interpretation more depending upon the Muslim textual law. It should be remembered that according to S. 3(1) of the Act, the law enacted by this Act 25 of 1986 is an overriding law. S. 3(1) begins with sentence, "Notwithstanding anything contained in any law for the time being in force". In my humble opinion the law as enacted in Act 25 of 1986 has overriding effect and it overrides even the textual Muslim law.
14. I am fully conscious of the fact that under the law of precedents sitting as a single Judge, I am bound by the majority judgment of the Full Bench. Though I take a totally different view, I would abide by the binding majority judgment in the Full Bench decision. In the present case on hand, there is no necessity to go into the question of applicability of Act 25 of 1986 because there is no proof of a divorce having taken place. The attempted divorce sought to be established through Exs. D-4 and D-5 and R.W. 2 is not believed by the trial Court. In my considered opinion Act 25 of 1986 is no bar for the maintainability of Crl.M.P. No. 569 of 1988. I hold this point in favour of the respondent.
15. In this context, I may also mention that in the grounds of revision no specific ground was taken based upon the Act 25 of 1986. It would be unjust and inequitable to allow the revision petitioner's advocate to rely upon Act 25 of 1986 especially when no specific ground was taken in the revision.
16. In a situation like the present one, the decision reported in M. H. Hameed v. Arif Jan @ Shahida Begum, (1990) 2 Andh WR 282 : (1990 Cri LJ 96), is the one decision which seems to provide a solution to the parties. In that decision, Justice Bhaskar Rao held where maintenance is awarded under S. 125, Cr.P.C. prior to the passing of the Act 25 of 1986, the right to maintenance is not taken away by the passing of the Act. In the present case also, the maintenance was awarded earlier to the passing of Act 25 of 1986 and in fact, by consent order it was enhanced after Act 25 of 1986 came into force. The facts mentioned in that decision indicate that after maintenance was awarded prior to Act 25 of 1986 then the husband divorced the wife and then she filed O.S. No. 260 of 1977 for meher and the suit was decreed. Thereafter the husband filed Crl.M.P. No. 3009 of 1987 in M.C. No. 72 of 1976 for cancellation of the maintenance to the wife. In such a back ground, Justice Bhaskar Rao held that there is no provision in the Act taking away the right of maintenance which the wife had prior to the coming into force of this Act.
17. In the result, the revision is dismissed. The order of the Magistrate in Crl.M.P. No. 569 of 1988, D/- 21-8-1989 is hereby confirmed.
18. Petition dismissed.