Allahabad High Court
Nikhat Parveen And Another vs State Of U.P. And Another on 21 October, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:167477 Court No. - 87 Case :- CRIMINAL REVISION No. - 3482 of 2023 Revisionist :- Nikhat Parveen And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sanjai Kumar Singh Counsel for Opposite Party :- Ajay Kumar Srivastava,G.A. Hon'ble Manjive Shukla,J.
1. Heard Sri Sanjai Kumar Singh, learned counsel appearing for the revisionists, learned AGA appearing for the State and Sri Dinesh Kumar Mishra, learned counsel appearing for Opposite Party No.2.
2. The instant revision has been filed by the revisionists challenging therein the judgment and order dated 13.4.2023 passed by the Principal Judge, Family Court, Kushinagar at Padrauna whereby revisionists' application filed under Section 125 Cr.P.C. for award of maintenance had been rejected on two grounds; firstly that Revisionist No.1 is deliberately avoiding to live with her husband i.e. Opposite Party No.2 and secondly, that parties belong to Muslim religion therefore, the case filed for maintenance under Section 125 Cr.P.C. is not maintainable.
3. Facts of the case, in brief, are that Revisionist No.1 and Opposite Party No.2 solemnized their marriage, as per rituals of Muslim marriages, on 9.10.2015. Later on, Revisionist No.1 left the house of her husband in the year 2020 and started living with her parents. Opposite Party no.2 sent a notice of divorce on 23.9.2020 wherein it was alleged that he has given divorce to Revisionist No.1. Thereafter, Revisionist No.1 lodged a criminal case on 10.11.2020 with the allegations that she had been tortured by her in-laws by the demand of dowry.
4. When Opposite Party No.2 failed to provide adequate maintenance to the revisionists, they filed an application under Section 125 Cr.P.C. before the Principal Judge, Family Court, Kushinagar at Padrauna and the case was registered as Criminal Case No.877/2021 (Nikhat Parveen and another Vs. Md. Ovaid). Ultimately, the Principal Judge, Family Court, Kushinagar at Padrauna, had rejected the aforesaid application filed under Section 125 Cr.P.C. vide impugned order dated 13.4.2023 on the ground that Revisionist No.1 is deliberately avoiding to live with her husband and further, since parties belong to Muslim religion therefore, the case for payment of maintenance under Section 125 Cr.P.C. is not maintainable.
5. Learned counsel appearing for the revisionists has argued that Revisionist No.1 was tortured by her in-laws by the demand of dowry and therefore, she left the house of her husband i.e. Opposite Party No.2 and started residing with her parents. It has further been argued that regarding torture of Revisionist No.1, a criminal case has also been registered on 10.11.2022 therefore, there is sufficient cause for Revisionist No.1 to leave the house of her husband.
6. Learned counsel appearing for the revisionists has submitted that though, under Section 125(4) Cr.P.C., it has been provided that if wife deliberately avoids to live with her husband, she would not be entitled for maintenance, but in the cases where there is allegation of demand of dowry, there is sufficient reason with the wife not to live with her husband and in the present case, lodging of criminal case by Revisionist No.1 is sufficient proof that she had been put to torture by her in-laws and thereby, there is sufficient reason for Revisionist No.1 not to live with her husband. It has further been submitted that the Principal Judge, Family Court, Kushinagar at Padrauna has not considered the facts of the case in its true perspective and had only been guided by the fact that the case in respect of allegation of demand of dowry was registered after the service of notice of divorce, whereas it is quite probable that there may be demand of dowry resulting in torture of Revisionist No.1 and she may have waited for lodging the criminal case and the moment she received the notice of divorce, she had lodged a criminal case but nevertheless this allegation cannot be brushed aside that there was torture of Revisionist No.1 by the demand of dowry.
7. Learned counsel appearing for the revisionists has invited the attention of this Court towards a judgment rendered by the Hon'ble Supreme Court in the case of Mohd. Abdul Samad Vs. State of Telangana & Anr. 2024 SCC OnLine SC 1686 and has submitted that the Hon'ble Supreme Court in the said judgment had laid down law in categorical terms that Muslim women are entitled for protection provided under Section 125 Cr.P.C. irrespective of any provision made in their personal law. It has also been submitted that the Hon'ble Supreme Court in the aforesaid judgment had categorically held that even after divorce, Muslim women are entitled for maintenance under Section 125 Cr.P.C.
8. Learned counsel appearing for the revisionists has lastly argued that the rejection of revisionists' application, filed under Section 125 Cr.P.C., on the ground that the said provision is not applicable where the parties are Muslim, is absolutely unsustainable as in that regard, Hon'ble Supreme Court had categorically held that the protection of Section 125 Cr.P.C. is equally applicable to Muslim women.
9. Sri Dinesh Kumar Mishra, learned counsel appearing for Opposite Party No.2 has argued that Revisionist No.1 is deliberately avoiding to live with Opposite Party No.2 and therefore, in view of the categorical provisions contained in Section 125(4) Cr.P.C., she is not entitled for any maintenance. He has further argued that even Section 125 Cr.PC. is not applicable where parties of the maintenance case are Muslim. Learned counsel appearing for Opposite Party No.2 has also argued that in fact, Revisionist No.1 has been cruel not only to Opposite Party No.2 but to his entire family as she had left the house of Opposite Party No.2 while his father was facing acute mental disease.
10. I have considered the rival arguments advanced by the learned counsels appearing for the parties and I find that it is admitted on record that marriage of Revisionist No.1 was solemnized with Opposite Party No.2 on 9.10.2015 and since there was demand of dowry and harassment of Revisionist No.1, she left the house of her husband and started living with her parents. Later on, Opposite Party No.2 sent a notice of divorce on 12.10.2020 and thereafter Revisionist No.1 lodged a criminal case on 10.11.2020 wherein allegations of demand of dowry and torture have been levelled.
11. This Court is of the view that once criminal case has been lodged with the allegation of demand of dowry, then it is not open for the Family Court to find out the substance in the allegations while deciding the case filed under Section 125 Cr.P.C. It is sufficient that once a woman comes up with the case under Section 125 Cr.P.C. claiming therein that she had been tortured by the demand of dowry and she had lodged a criminal case against her husband, that is sufficient reason for her not to live with her husband. I find that the Principal Judge, Family Court, Kushinagar at Padrauna, while deciding the case vide impugned order dated 13.4.2023, had not considered the issue in its true perspective, as it is apparent on record that Revisionist No.1 has sufficient reason not to live with her husband and therefore, petition filed under Section 125 Cr.P.C. could not have been rejected.
12. So far as the second ground taken by the Principal Judge, Family Court, Kushinagar at Padrauna to reject the application filed by the revisionists under Section 125 Cr.P.C. that parties belong to Muslim religion therefore, they are governed by the provisions made in their personal law, is concerned, I find that the issue had already been decided by the Hon'ble Supreme Court vide its judgment rendered in the case of Mohd. Abdul Samad Vs. State of Telangana & Anr. 2024 SCC OnLine SC 1686. The relevant paragraphs of the judgment rendered by the Hon'ble Supreme Court are extracted as under:-
"40. Therefore, the position of law with regard to harmonious interpretation of Sections 125-128 of the CrPC and the 1986 Act can be summarised as under:
i. There cannot be a disparity amongst divorced Muslim women on the basis of the law under which they were married or divorced in the matter of their maintenance post-divorce. The definition of "divorced woman" under the 1986 Act would include only a Muslim woman who has married according to Muslim law but also divorced under that law. But if a Muslim woman has been married under the Special Marriage Act, such a Muslim woman who is divorced, cannot get the benefit of the 1986 Act. Such a Muslim woman, who is divorced, would have to proceed either under the provisions of the Special Marriage Act, 1954 and/or under Section 125 of the CrPC. Therefore, the protective provision of Section 125 ought to remain available to every divorced Muslim woman to avoid the absurd outcome of a section of Muslim women being left remediless under the 1986 Act. As a corollary, it is held that such women who are covered under the 1986 Act are also entitled to the benefit of Section 125 of the CrPC. Further, there can be no bar under the Explanation (b) to Section 125 of the CrPC so as to exclude any Muslim woman who has been divorced or has obtained a divorce from her husband and has not remarried. This is irrespective of the 1986 Act being applicable to only such divorced Muslim woman who qualifies within the definition of divorced woman under Section 2(a) of the 1986 Act.
ii. Section 3 of the 1986 Act provides for a reasonable and fair provision of maintenance to a divorced Muslim woman only on certain terms and conditions within the iddat period by her husband. Once the iddat period expires, the personal law obligation to maintain the divorced Muslim woman by the husband ceases. Per contra, under Section 125 of the CrPC, any divorced wife who has not remarried is entitled to maintenance by her ex- husband who has sufficient means but has neglected or refused to maintain her.
iii. Further, under Section 3(1)(b) of the 1986 Act, where a divorced woman maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance has to be made and paid by her former husband only for a period of two years from the respective dates of birth of such children and not beyond the said period. However, under Section 125 of the CrPC, there is no such restriction of maintenance to be provided only for a period of two years from the respective dates of birth of such children in the case of a divorced wife. The obligation is until the children attain the age of majority and in terms of the said Section.
iv. What is of further significance is the fact that by Act 50 of 2001 [by Section 2(i)(a)] w.e.f. 24.09.2001, sub-section (1) of Section 125 of the CrPC has been amended to delete the words "not exceeding 500 rupees in the whole". By way of this omission, there is no upper limit fixed for payment of maintenance under the said provision. Therefore, Section 125 of the CrPC is a more beneficial provision as compared to the provisions of the 1986 Act vis-a-vis a Muslim divorced woman in the context of the obligations of a former husband and the rights of a divorced Muslim woman. This amendment to Section 125 of the CrPC being subsequent to the enforcement of the 1986 Act, is so significant that it virtually makes Section 3 of the 1986 Act very narrow and insignificant although the expression "provision" under Section 3(1) of the 1986 Act has been broadly interpreted by this Court in Danial Latifi.
v. I, therefore, hold that Section 125 of the CrPC cannot be excluded from its application to a divorced Muslim woman irrespective of the law under which she is divorced. There cannot be disparity in receiving maintenance on the basis of the law under which a woman is married or divorced. The same cannot be a basis for discriminating a divorced woman entitled to maintenance as per the conditions stipulated under Section 125 of the CrPC or any personal or other law such as the 1986 Act. I also note that although the provisions of the 1986 Act have been upheld by a Constitution Bench of this Court in the case of Danial Latifi, the same would not in any way restrict the application of Section 125 of the CrPC to a divorced Muslim woman.
vi. Further, under Section 5 of the 1986 Act, if, on the date of the first hearing of the application under sub-section (2) of Section 3, a divorced woman and her husband declare by an affidavit or any other declaration in writing in the form prescribed, either jointly or separately that they would prefer to be governed by the provisions of Section 125 to Section 128 of the CrPC and file such an affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly. Therefore, the 1986 Act itself provides for the applicability of Sections 125 to 128 of the CrPC, even when an application under sub-section (2) of Section 3 is made seeking relief as per sub- section (1) of Section 3. However, the said option given to the divorced woman and her former husband mandates that there must be a declaration which is ad idem for the purpose of applying the provisions of Sections 125 to 128 of the CrPC, when an application is made under sub- section (2) of Section 3 of the 1986 Act. This would imply that if there is no such declaration given then Sections 125 to 128 of the CrPC would not apply when an application is made under sub-section (2) of Section 3 of the 1986 Act by a divorced Muslim woman. This again puts a fetter on the applicability of Sections 125 to 128 of the CrPC to such a divorced woman inasmuch it is necessary for her former husband to concur to be governed by the provisions of Sections 125 to 128 of the CrPC. This means that an option is given to the former husband of a divorced Muslim woman to concur or not to do so. In other words, if there is no such concurrence by the former husband then the aforesaid provisions of the CrPC would not be made applicable to a proceeding initiated under sub- section (2) of Section 3. Such a fetter, in my view, is of no consequence if a Muslim divorced woman can unilaterally maintain an application under Section 125 of the CrPC before the Magistrate or the Family Court, in which event when she unilaterally files such an application, there is no necessity of seeking a declaration from the former husband as required under Section 5 of the 1986 Act.
vii. On the other hand, if a divorced Muslim woman files an application for maintenance under Section 125 of the CrPC, there is no provision for considering the same under Section 3 of the 1986 Act. The reasons for the same are not far to see: firstly, because Section 125 of the CrPC and Section 3(1) of the 1986 Act operate in two separate fields. The former is a statutory right created, inter alia, for all divorced women, irrespective of the faith they may belong to or follow. On the other hand, the 1986 Act is in the nature of a personal law which applies to only divorced Muslim women who were married under Muslim law and divorced under the said law.
viii. While under the CrPC prior to CrPC of 1973, the alteration of maintenance was considered on the basis of change in circumstances but Section 127(3)(b) of the CrPC, 1973 specifically takes into account cases where a divorced woman has had the benefit of maintenance under the customary or personal law. In a case of a Hindu divorced woman, it could also include the Hindu Marriage Act, 1955 or Hindu Adoption and Maintenance Act, 1954. In the same manner in the case of a Muslim divorced woman, the 1986 Act is in the nature of a quasi- personal law. Section 127(3)(b), therefore, balances the obligation to pay maintenance by a former husband of a Muslim woman if he has done so under the provisions of any customary or personal law which would also include the 1986 Act applicable to the parties. In such an event, there could always be an alteration in the allowance when there is a change in the circumstances of any person receiving, under Section 125 of the CrPC, a monthly allowance towards the interim maintenance or maintenance under the said Section payable to a divorced wife. In which event, the alteration could be made in accordance with Section 127 of the CrPC.
ix. Section 127 would apply only when there has already been an order for maintenance or interim maintenance passed under Section 125 of the CrPC and if there is a subsequent order passed under the provisions of the 1986 Act. Then, an order for alteration in the maintenance under Section 125 of the CrPC could be made by the Magistrate. Section 127(3)(b) would however not detract a divorced Muslim woman from filing an application under Section 125 of the CrPC, by exercising her option to do so even in the absence of invoking the provisions of the 1986 Act. In other words, such a vulnerable woman cannot be constrained to seek remedy only under the provisions of the 1986 Act. The choice remains with her to be exercised in accordance with law and discretion. However, if a divorced Muslim woman already has an order passed under Section 125 of the CrPC, and thereafter also files an application under Section 3 or Section 4 of the 1986 Act and an order is made under the said Act also, in such an event, there could be an alteration in the order of payment for maintenance or interim maintenance, as the case may be, under Section 127 of the CrPC. This is in order to ensure that there is no double benefit which would be availed by a divorced Muslim woman under Section 125 of the CrPC as well as under the 1986 Act.
x. Hence, what emerges is that the 1986 Act is not a substitute for Section 125 of the CrPC and nor has it supplanted it and both can operate simultaneously at the option of a divorced Muslim woman as they operate in different fields. As I find no conflict between the provisions of the 1986 Act, which is a piece of legislation in the nature of quasi- personal law insofar as the divorced Muslim wife is concerned and Section 125 of the CrPC which is a statutory provision applicable to women belonging to all faiths therefore the latter cannot be restricted in its operation to divorced Muslim women. I find that if Section 125 of the CrPC is excluded from its application to a divorced Muslim woman, it would be in violation of Article 15(1) of the Constitution of India which states that the State shall not discriminate against any citizen only on the ground of religion, race, caste, sex, place of birth or any of them. Further, our interpretation is consistent with the spirit of Article 15(3) of the Constitution."
13. This Court finds that it had been categorically held by the Hon'ble Supreme Court that Section 125 Cr.P.C. is applicable to the Muslim women and they are entitled for maintenance under Section 125 Cr.P.C. even after their divorce, beyond the period of Iddat. The only restriction is that they are entitled for maintenance under Section 125 Cr.P.C. till their re-marriage.
14. In view of the aforesaid reasons, the impugned judgment and order dated 13.4.2023 passed by the Principal Judge, Family Court, Kushinagar at Padrauna is erroneous and is liable to be set aside by this Court.
15. Accordingly, this revision is allowed. The impugned judgment and order dated 13.4.2023 passed by the Principal Judge, Family Court, Kushinagar at Padrauna in Criminal Case No.877/2021 (Nikhat Parveen and another Vs. Md. Ovaid) is hereby set aside. The matter is remanded to the Principal Judge, Family Court, Kushinagar at Padrauna to decide the case filed by the revisionists under Section 125 Cr.P.C., afresh. It is expected that the Principal Judge, Family Court, Kushinagar at Padrauna shall proceed in the matter expeditiously and shall decide the case within a period of one year from the date.
Order Date :- 21.10.2024 Salim