Gujarat High Court
Ilyas Haji Abdul Sattar Guruji vs Tahera Suleman Bhagat & on 21 June, 2013
Author: M.R.Shah
Bench: M.R. Shah
ILYAS HAJI ABDUL SATTAR GURUJI....Applicant(s)V/STAHERA SULEMAN BHAGAT R/CR.RA/559/2011 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 559 of 2011 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH -Sd/-
============================================= A Whether Reporters of Local Papers may be allowed to see the judgment ?
YES
2. To be referred to the Reporter or not ?
NO
3. Whether their Lordships wish to see the fair copy of the judgment ?
NO
4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
NO
5. Whether it is to be circulated to the civil judge ?
NO ============================================= ILYAS HAJI ABDUL SATTAR GURUJI....Applicant(s) Versus TAHERA SULEMAN BHAGAT &
2....Respondent(s) ============================================= Appearance:
MR SK BUKHARI, ADVOCATE for the Applicant(s) No. 1 MR VB MALIK, ADVOCATE for the Respondent(s) No. 1 - 2 MS.
C.M. SHAH ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 3 ============================================= CORAM:
HONOURABLE MR.JUSTICE M.R. SHAH Date : 21/06/2013 CAV JUDGEMNT 1.0. Present Criminal Revision Application has been preferred by the petitioner herein-original opponent -husband to quash and set aside the impugned order passed by the learned Judge, Family Court, Godhra dated 30.7.2011 passed in Criminal Miscellaneous Application No.149 of 2010 (Old No.202 of 2009), by which, in an application submitted by the respondent nos. 1 and 2 herein -wife and minor child under Section 125 of the Code of Criminal Procedure, the learned Family Court has awarded maintenance to respondent no.1 wife of Rs.1300/- per month and awarded Rs.1200/- per month to respondent no.2 minor daughter towards their maintenance.
2.0. The facts leading to the present Criminal Revision Application in nutshell are as under:
2.1. That both the petitioner and respondent no.1 are Muslim. Their marriage was solemnized in the year 1992. They had daughter out of their wedlock. That the respondent nos.1 and 2 herein -original applicant submitted Criminal Miscellaneous Application No.6 of 1994 before the learned Magistrate Court praying for maintenance under Section 125 of Code of Criminal Procedure and the learned Magistrate granted the said application and directed the petitioner husband to pay Rs.400/-
per month to respondent no.1 wife and Rs.200/- per month to respondent no.2 minor daughter. That both the parties preferred Criminal Revision Applications No.90 of 1996 and 96 of 1996 before the learned Sessions Court, Panchmahals at Godhra and the learned Sessions Judge dismissed both the Revision Applications.
2.2. According to the petitioner thereafter the petitioner divorced respondent no.1 and thereafter respondent nos. 1 and 2 filed Criminal Miscellaneous Application No.450 of 1996 in the Court of learned Magistrate praying for lump sum amount of maintenance under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act ). That the learned Magistrate passed an order to award Rs.45000/- as future maintenance. Against the said order, both the parties preferred Revision Applications before the learned Sessions Court being Criminal Revision Applications No.26 of 1999 and 35 of 1999. That the learned Sessions Judge by order dated 10.4.2000 dismissed the Revision Application preferred by the petitioner and partly allowed the Revision Application filed by respondent no.1 wife and enhance the amount of future maintenance from Rs.45000/- to Rs.72000/- (the said order is not on record). According to the petitioner, thereafter there was compromise between the petitioner and respondent no.1 and as per the said compromise, respondent nos. 1 and 2 agreed to take future amount of maintenance from the petitioner at the rate of Rs.61000/- for respondent no.1 and Rs.35000/- for respondent no.2, according to the petitioner amount have been already paid by the petitioner to respondent nos. 1 and 2.
2.3. It appears that thereafter as it was not possible for them to maintain themselves and even incurred expenses towards the education of respondent no.2 and amount which was paid earlier had been spent towards maintenance and education of respondent no.2, respondent nos. 1 and 2 preferred Criminal Miscellaneous Application No.202 of 2009 for getting maintenance from the petitioner under Section 125 of the Code of Criminal Procedure, which is subsequently numbered as Criminal Miscellaneous Application No.149 of 2010 in the Court of learned Family Court, Panchmahals at Godhra and by impugned judgment and order and considering the income of the petitioner, learned Judge, Family Court, Godhra has partly allowed the said application directing the petitioner to pay Rs.1300/- per month to the respondent no.1 and Rs.1200/- per month to respondent no.2 minor daughter i.e. in all Rs.2500/- per month towards their maintenance.
2.4. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Judge, Family Court, Godhra dated 30.7.2011 passed in Criminal Miscellaneous Application No.149 of 2010 (Old No.202 of 2009) in awarding Rs.1300/- per month to the respondent no.1 and Rs.1200/- per month to the respondent no.2 minor daughter, the petitioner herein-original opponent -husband has preferred the present Criminal Revision Application.
3.0. Shri Bukhari, learned Advocate for the petitioner has mainly contended that once the wife was paid the maintenance during the period of Iddat and when earlier she had initiated the proceedings for getting the maintenance under the Act, 1986 and the amount of Rs.94000/- was paid to her as permanent alimony/ future maintenance, application by the wife for getting maintenance under Section 125 of Code of Criminal Procedure and therefore, the learned Judge has materially erred in partly allowing the application under Section 125 of the Code of Criminal Procedure and directing the petitioner to pay maintenance to the respondent nos. 1 and 2. Shri Bukhari, learned advocate for the petitioner has heavily relied upon the following decisions:
(1). Mumtazben Jusbbhai Vs. Mahebibkhan Usmankhan Pathan and Anr reported in 1999(1) GLR 609.
(2). Usman Khan Bahamani vs. Fathimunnisa Begum and others reported in AIR 1990 Andhra Pradesh 225.
3.1. It is further submitted by Shri Bukhari, learned advocate for the petitioner that assuming without admitting and in the alternative it is accepted that the application submitted by the respondent nos. 1 and 2 for the maintenance under Section 125 of the Code of Criminal Procedure would be maintainable in that case also, the amount which is awarded earlier has to be adjusted. In support of his above submission, he has relied upon the following decisions of the Hon ble Supreme Court as well as this Hon ble Court:
(1). Sudeep Chaudhary Vs. Radha Chaudhary reported in AIR 1999 SC 536.
Dr. Rameshchandra Shambhubhai Yudav vs. Dhirajgavri w/o Dr. Rameshchandra Shambhubhai Yudav and another reported in 1982(2) GLR
359. (3). Merubhai Mandanbhai Odedara & Anr vs. Raniben Merubhai Odedara reported in 2000(3) GCD 2091 Making above submissions and relying upon the above decisions, it is requested to allow the present Criminal Revision Application.
4.0.
Present application is opposed by Ms. Shah, learned Additional Public Prosecutor appearing on behalf of the respondent State. It is submitted by Ms. Shah, learned Additional Public Prosecutor that as such controversy raised in the present revision application is now not res-integra in view of the decision of the Hon ble Supreme Court in the case of Shabana Bano vs. Imran Khan reported in (2010) 1 SCC 666 as well as in the case of Danial Latifi & Anr vs. Union of India reported in 2002(1) GLR 531 as well as decision of the learned Single Judge of this Court in the case of Shaukat Ibrahim Qureshi vs. Faridabanu Hasambhai Qureshi & Anr reported in 2011(1) GLR 368.
4.1.
It is submitted that as held by the Hon ble Supreme Court in the aforesaid decisions a divorce Muslim women would be entitled to claim maintenance even for the post iddat period under Section 125 of the Code of Criminal Procedure till she re-marries. It is submitted that so far as respondent no.2 herein minor child is concerned, even otherwise irrespective of the provision of the Act, she will be entitled to the maintenance under Section 125 of the Code of Criminal Procedure. In support of her above submission, she has relied upon the decision of the Hon ble Supreme Court in the case of Noor Saba Khatoon vs. Mohd. Quasim reported in (1997) 6 SCC 233.
Making above submissions and relying upon the above decisions, it is requested to dismiss the present application.
5.0.
The short question which is posed for the consideration of this Court is whether a divorced Muslim woman can claim maintenance from her ex-husband under Section 125 of the Code of Criminal Procedure for post iddat period and even she has been earlier paid the lump sum maintenance either in any proceedings or under some settlement ?
6.0.
In the case of Sabana Banoo(supra) the Hon ble Supreme Court has held that a divorced Muslim wife s maintenance petition against ex-husband filed under Section 125 of the Code of Criminal Procedure before the Family Court would be maintainable irrespective of absence of any application under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, till she does not remarry. It is further held that her entitlement to maintenance continues even for post iddat period as long as she does not remarry. It cannot be disputed that divorced wife is entitled fair and reasonable maintenance to ensure that she is not rendered destitute after divorce. She will be entitled to fair and reasonable maintenance for her future life till she re-marries. Under the circumstances, even if earlier some lump sum amount has been paid towards future maintenance and it is found to be not fair and reasonable and it is found that she is unable to maintain herself, still she can file the application for maintenance under Section 125 of the Code of Criminal Procedure.
7.0.
Now so far as the amount of maintenance to the respondent no.2 minor daughter under Section 125 of the Code of Criminal Procedure is concerned, in view of the decision of the Hon ble Supreme Court in the case of Noor Saba Khatoon (supra) right of the minor children staying with their divorced mother to claim maintenance under Section 125 of the Code of Criminal Procedure from their Muslim father having sufficient means till they attain majority or in case of females till they get married by Section 3(1)(b) of the Act. It is held that a Muslim father s obligation like that of a Hindu father to maintain his minor children as contained in Section 125 of the Code of Criminal Procedure is absolute., 8.0. Considering the aforesaid decisions of the Hon ble Supreme Court, the decisions which are relied upon by the learned advocate for the petitioner would not be of any assistance to the petitioner.
9.0. In view of the above and for the reasons stated above and more particularly when only a sum of Rs.2500/- has been awarded to respondent nos. 1 and 2 towards their maintenance, which in these hard days and price rise etc. cannot be said to be too excessive, no case is made out to interfere with the impugned order passed by the Family Court, Godhra in exercise of revisional jurisdiction. Hence, present application deserves to be dismissed and is accordingly dismissed.
sd/-
(M.R.SHAH, J.) Kaushik Page 7 of 7