Allahabad High Court
Riyasat Ali vs State Of U.P. And Another on 25 October, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:171285 Court No. - 87 Case :- CRIMINAL REVISION No. - 4827 of 2023 Revisionist :- Riyasat Ali Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Dheeraj Kumar Singh Counsel for Opposite Party :- G.A.,Mohd. Shurjeel Najam Hon'ble Manjive Shukla,J.
1. Heard Sri Dheeraj Kumar Singh, learned counsel appearing for the revisionist, learned A.G.A. for the State and Mohd. Shurjeel Najam, learned counsel appearing for Opposite Party No. 2.
2. The instant revision has been filed challenging therein the judgment and order dated 18.8.2023 passed by the Addl. Principal Judge, Family Court, (Court No. 3) Allahabad in Maintenance Case No. 268 of 2007 (Mst. Naziya Habib @ Nazrana Begum Vs. Riyasat Ali) whereby, under Section 125 Cr.P.C., interim maintenance of Rs.5000/- per month had been awarded in favour of Opposite Party No.2.
3. It has been contended on behalf of the revisionist that he is doing a small work of selling balloons on the streets and therefore, he is earning only a meagre monthly income. It has further been contended that the amount of maintenance, awarded under the impugned order dated 18.8.2023, is not commensurate with the income of the revisionist.
4. It has been submitted on behalf of the revisionist that he had already divorced the Opposite Party No. 2 way back on 14.8.2005 therefore, as per law he is not under any legal obligation to pay maintenance to his wife i.e. Opposite Party No. 2.
5. Learned counsel appearing for the revisionist has argued that the revisionist and Opposite Party No. 2, both are Muslim by religion and therefore, their marriage and the issues relating to maintenance are governed by their personal law. It has further been argued that, in exercise of power under Section 125 Cr.P.C., maintenance cannot be awarded in favour of Opposite Party No. 2 as the provisions of Section 125 Cr.P.C. are not applicable over the Muslims. It has also been argued on behalf of the revisionist that he is doing a small business of selling balloons on the streets and is earning a meagre amount therefore, he does not have sufficient monthly income to pay maintenance to his divorced wife.
6. Lastly, it has been argued by the learned counsel appearing for the revisionist that the impugned order dated dated 18.8.2023 passed by the Addl. Principal Judge, Family Court, (Court No. 3) Allahabad in Maintenance Case No. 268 of 2007 (Mst. Naziya Habib @ Nazrana Begum Vs. Riyasat Ali), on its face, is illegal therefore, cannot be allowed to sustain.
7. On the other hand, learned counsel appearing for Opposite Party No. 2 has submitted that the issue, as to whether Muslim women is entitled for maintenance from her husband under Section 125 Cr.P.C., had already been settled by the Hon'ble Supreme Court vide its judgment rendered in the case of Mohd. Abdul Samad Vs. State of Telangana and another 2024 SCC OnLine SC 1686, wherein it had been held that Muslim women can claim maintenance from her husband under Section 125 Cr.P.C. It has also been argued that the Hon'ble Supreme Court in the aforesaid judgment had also settled that the Muslim women is entitled for payment of maintenance from her husband even after divorce.
8. Learned counsel appearing for Opposite Party No. 2 has further argued that so far as income of the revisionist is concerned, he is earning sufficient monthly income as he is doing a small business of selling balloons on the streets and as per his own admission before the trial court, he had purchased a Tempo (Vikram) and from that he is getting income therefore, it is apparent that the stand taken by the revisionist regarding his less monthly income, is absolutely unsustainable.
9. Lastly,learned counsel appearing for Opposite Party No. 2 has argued that the Addl. Principal Judge, Family Court, (Court No. 3) Allahabad, under the impugned order dated 18.8.2023, had awarded maintenance of Rs. 5000/- per month which is commensurate with the monthly income of the revisionist, as such no interference is called for by this Court, in this matter.
10. I have considered the arguments advanced by the learned counsels appearing for the parties and I find that the law in respect of the issue, as to whether Muslim women is entitled for maintenance under Section 125 Cr.P.C., had already been well settled by the Hon'ble Supreme Court in catena of judgments and the latest judgment had been rendered in the case of Mohd. Abdul Samad (Supra), wherein it had categorically been held that the Muslim women is entitled for maintenance from her husband under Section 125 Cr.P.C. For ready reference, the Paragraph No. 40 of the judgment rendered in the case of Mohd. Abdul Samad (Supra) is 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--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."
11. This Court also finds that the issue, as to whether Muslim women is entitled for payment of maintenance under Section 125 Cr.P.C. after her divorce, had also been settled by the Hon'ble Supreme Court and it had been held that the Muslim women is entitled for payment of maintenance even after her divorce, till the date she is remarried. It is patently manifest that the ground taken by the revisionist that he and Opposite Party No. 2 belong to Muslim religion therefore, Opposite Party No. 2 cannot claim maintenance under Section 125 Cr.P.C., is absolutely misconceived and further even if it is assumed that the revisionist had divorced Opposite Party No. 2, her claim for payment of maintenance is valid till the date, she is remarried.
12. Now this Court proceeds to decide the issue of monthly income of the revisionist. The revisionist, before the trial court, had categorically admitted that he is doing small work of selling balloons on the streets and by that he is earning some income. He had also admitted before the trial court that he had purchased a Tempo (Vikram) and from there he is also getting some income. The finding recorded by the learned trial court in the impugned order dated 18.08.2023 in respect of the revisionist's income is extracted as under:-
"?????????-01 ?? ???? ???????????? ??? ???? ??? ???????????? ???? ??? ??? ???? ?? ?? ???????? ?? ????? ??????-16.07.2002 ?? ??????? ????? ?? ?????? ?????????? ?? ??? ??? ???????? ? ?????????? ?? ?????? ?? ???? ?????????? ???? ??? ? ???? ?? ?????-????? ?? ?????? ???? ?? ???? ????? ????? ??? ?? ?? ??? ???? ?? ???? ??? ?? ??? ??? ???????? ???? ?? ?? ????? ????? ?? ?? ?? ?????? ?? ???? ?????????? ??? ?? ?? ????? ????? ???? ?? ?????????? ?? ?? ????? ????, ????? ?????????? ?? ????? ?? ??? ?? ?? ??? ???? ?? ????? ???? ?? ?? ???????? ?????? ?????? ???? ? ?????? ??? ????????? ????? ???????? ????? ?? ?? ???? ???? ???? ???? ??? ???? ???? ? ???? ?? ?? ?????? ???? ?? ?????? ?? ?????? ???? ?????????? ?????? ???????? ? ???? ???? ?? ????? ????? ??? ???? ?? ???? ????? ?? ?? ??? ???? ?????? ?? ?????????? ?? ???? ?????? ?????????? ?? ???? ???? ???????? ? ?????? ?? ????? ????? ???? ????? ?????????? ?????? ???? ????? ???? ?? ????? ?? ????? ?????? ???????? ? ???? ?????? ???? ?? ???? ???? ???? ?????????? ?? ???????? ?? ??? ???? ?? ?????? ???? ????? ?? ???? ???? ?? ???? ??? ?? ???????? ?? ?????? ?? ???? ???? ???? ?? ??? ????? ?? ????? ?? ???? ?????????? ?? ? ???? ?? ??? 2004 ??? ???????? ?? ???? ???? ??? 2007 ??? ??????? ?????? ????? ???? ???? ?????????? ?? ??? 2008 ??? ?????? ????????? ???????? ?? ???????? ??? ?????? ????? ?? ???? ??????? ????? ?????????? ?? ????? ?? ???????? ???? 1986 ?? ??? ???? ????? ????, ????, ????? ?? ??? ??? ??????? ???? ??? ??????? ?????? ?? ????? ???????? ?? ?????????? ?? ??????? ?????? ???? ?? ??? ????? ????? ?? ???? ?? ????? ????? ?? ?? ????? ?? ?? ??? ??? ??? 2007 ??? ????? ??????? ??? ???? ??? ??? ??? 2008 ??? ?? ???????? ?????? ??? ?? ?????? 2000/-????? ???????? ?????????? ?? ???? ?? ???? ????? ??? ??? ????? ??????? ?????? ?? ???? ???? ????? ?? ??? ???? ? ????? ???? ????? ????? ???? ?? ??? ? ?????? ??? ?? ????????? ???? ?? ??? ?? ?? ????? ?? ?? ???????? ?? ????? ???? ?? ?? ?? ????? ?? ?? ??? ?? ??? ?????? ?? ?? ????? ???? ?????? ??????? ?? ????? ???????? ?? ?????? ???? ?? ??? ???????? ?? ?? ????? ??? ?????? ?? ????? ?? ???? ??? ??? ????? ???? ???????? ? ????????? ?? ????? ????? ???? ? ?????? ?? ??? ????? ??? ???????? ?? ????? ?????? ??? ?? ??? ???? ?? ?????? ?? ???? ?? ????? ?? 200 ?? 300 ????? ???????? ??? ???? ??? ???????? ?? ?? ?? ??? ???? ?????????? ?????? ???????? ???? ???? ??? ?? ??? ?????? 10 ???? ? ???? ??? 70 ???? ????? ??? ?? ??? 40 ???? ????? ??? ??? ???????? ?????????? ?? ????????? ???? ??? ????? ??? ?????? ???? ??? ???? ???? ?? ??????? ??? ?? ?????? ?????????? ?? ?? ???????? ?? ????? ???? ?? ???? ???? ????? ???????? ??? ??????? ?? ??????? ?????? ?? ???? ??? ??????? ?????????-1 ?? ??? ???? ?? ?? ???? ???? ????? ?? ???? ?? ??? ??, ?????? ??????? ?????? ???? ????????? ?? ??????? ??? ??? ??????? ????? ???? ???? ?? ????? ?? ????? ?? ?? ??????? ?? ???? ???? ????? ?? ???? ?? ??? ?? ?? ??????? ???? ???? ????? ?? ???? ??? ????? ???? ?? ???? ?? ?? ???? ?? ????? ?? ???? ??????? ?? ?????? ???? ??? ???? ??? ???????? ??????? ?? ?? ?????? ???? ?? ?? ??????? ?? ???? ????? ?? ???? ????? ????? ?? ???? ??? ?????? ?? ??? ?? ?? ?? ??????? ?? ??? ???? ?? ????? ??, ?????? ?? ???? ??? ???? ?? ????? ???? ??? ?????????-1 ?? ???? ??? ??????? ???? ??? ??? ???? ????? ???? ??? ???? ??? ?? ????? ?? ?? ???????? ????? ?? ???? ??????? ???? ???????????? ??? ???????? ?????? ?? ?? ?????? ???????? ?????? ?? ??????? ?? ??? ?? ??? ???
???????, ?????? ??????-02 ?????????? ?? ???? ??? ????????? ???? ???? ???"
13. I find that the Addl. Principal Judge, Family Court, (Court No. 3) Allahabad, in its order dated 18.8.2023 had extensively considered the admission made by the revisionist that he is doing small work of selling balloons on the streets and he is owner of a Tempo and on that basis it had been assumed that the revisionist is earning income, which is sufficient for his maintenance as well as for maintenance of his family including Opposite Party No. 2 and on that basis, vide impugned order dated 18.8.2023, maintenance of Rs. 5000/- per month had been awarded in favour of Opposite Party No. 2. I further find that the maintenance awarded under the impugned order dated 18.8.2023 is commensurate with the monthly income of the revisionist, as such I do not find either any illegality or infirmity in the impugned order dated 18.08.2023.
14. Accordingly, this revision lacks merit and is hereby dismissed.
15. Learned counsel appearing for Opposite Party No. 2, at this stage, has apprised the Court that the revisionist, till date has not paid a single rupee under the impugned order dated 18.8.2023 to Opposite Party No. 2. Accordingly, the Addl. Principal Judge, Family Court, (Court No. 3) Allahabad is directed to ensure the strict compliance of his order dated 18.8.2023 passed in Maintenance Case No. 268 of 2007, as Opposite Party No. 2 cannot be allowed to lead the life of a destitute and vagrancy.
Order Date :- 25.10.2024 n.u.