Gauhati High Court
Musstt. Arab Chani Begum vs Md. Azizur Rahman on 15 March, 2000
Equivalent citations: 2001CRILJ21
ORDER P.G. Agarwal, J.
1. The petitioner Musstt. Arab Chani Begum hereinafter referred as the petitioner, filed an application under Section 125, Cr.P.C., before the Addl. C.J.M., Kamrup, Guwahati being 17m/83 stating inter alia that she was married to the respondent Azizur Rahman, hereinafter referred as respondent, as per Muslim Sariat and thereafter they lived as husband and wife. Out of the said wedlock two sons were born of her but one of the sons died. The respondent has got another wife and after 4/5 years of the marriage he started ill-treating the petitioner and ultimately drove her out from the house along with her minor son. The petitioner has got no means of livelihood and accordingly she prayed for grant of maintenance to herself and her minor son. Vide order dated 3-1-86 learned SDJM, Rangia granted maintenance to the petitioner at the rate of Rs. 100/- per month for herself and another sum of Rs. 100/- per month for the minor child.
2. The respondent preferred a revision petition against the said order of maintenance but the revision was dismissed. The respondent filed another revision, being Criminal Revision No. 333/87 before the Hon'ble Gauhati High Court and vide order dated 5-1-93 this Court directed both the parties to appear before the Principal Judge, Family Court, Kamrup, Guwahati for reconciliation. It was further provided that if the reconciliation fails the respondent husband was to pay maintenance allowance at the rate of Rs. 150/- per month. The reconciliation proceeding, however failed and the respondent continued to pay the maintenance. Thereafter the petitioner filed an application for enhancement of the maintenance and the amount of maintenance was enhanced to Rs. 250/- per month to the wife and Rs. 200/- per month for the child.
3. The respondent filed Misc. Case No. 205/97 under Section 127, Cr.P.C. on 17-7-97 praying for cancellation of the order of maintenance on the ground that in the meantime the respondent has divorced the petitioner some time in the year 1995 and hence under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, for short, the Act, the petitioner wife is not entitled to any maintenance. The petitioner filed written objection and both the parties led evidence. Thereafter vide the impugned order dated 20-5-98 passed in Misc. Case No. 205/97 the Principal Judge, Family Court cancelled the maintenance granted to the petitioner wife only; so far the minor son is concerned the respondent was directed to pay till the minor attains the majority. The present revision is directed against the said order of cancellation of maintenance to the petitioner wife.
4. I have heard Mr. A.S. Choudhury, learned counsel for the petitioner and Mr. Saukat Ali, senior advocate for the respondent.
5. Learned counsel for the petitioner has fairly submitted that in view of the limited scope of interference in this revision he is not challenging the factum of divorce alleged by the respondent husband but even if it is accepted that the petitioner has been divorced in the meantime, the order of maintenance cannot be set aside or cancelled as the Act does not deprive a divorced Muslim wife from getting maintenance under Section 125, Cr.P.C. Learned counsel has placed reliance on a recent decision of the Hon'ble Bombay High Court in the case of Shaikh Babbu v. Sayeda Masarat Begum reported in 1999 Cri LJ 4822 wherein it was held that there is no inconsistency between the provisions of the Act and provisions of Section 125, Cr.P.C. and a divorced Muslim woman is entitled to maintenance under Section 125, Cr.P.C. The provisions of Sections 3 and 4 of the Act are in addition to the claims available to them under Section 125, Cr.P.C. The Hon'ble Bombay High Court has followed the decision of Gujarat High Court in the case of Arab Ahmedia Abdulla v. Arab Bail Mohmuna Saiyadbhani, AIR 1988 Guj 141.
6. So far the present case is concerned there is no dispute at the Bar that the order of maintenance was passed in favour of the petitioner wife prior to the coming into force of the Act and the said order was affirmed by the revisional Court. As a matter of fact the respondent was also paying the maintenance as per the Act and Talaq was given after long 9/10 years. Admittedly, the order was passed under Section 125, Cr.P.C. and under the above provision of law a divorcee is also entitled to maintenance and divorce is not a ground for cancellation of order of maintenance under Section 127, Cr.P.C. The Act nowhere provides that the provisions of the Act will override the Section of 125, Cr.P.C. or that an order passed under Section 125, Cr.P.C. may be altered or set aside after coming into force of the Act. The petitioner never sought any relief under the Act and her petition was disposed of under Section 125, Cr.P.C. This Court also held in the case of Idris All v. Ramesha Khatun, reported in (1988) 2 GLR 202: (Air 1989 Gau 24) as follows (at page 29; of AIR) :
We feel that legislature was very much concerned not to write off the maintenance of Muslim divorced wives, who had already been granted maintenance earlier by a competent Court under Section 125 or 127 of the Criminal Procedure Code and therefore made it express that the new Act of 1986 and the provisions thereof would cover only the cases filed after the new Act came into force and those cases under Sections 125 and 127 which were pending. If any retrospective effect would be given to the Act of 1986, it Would result in serious complications. The legislature in its wisdom never contemplated a situation where divorced muslim women would not be given benefit which they had already acquired under the law which was in force earlier and which had been implemented under Sections 125 and 127 Cr.P.C. and became final.
7. There is another aspect of the matter also, Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act stipulates that the divorced woman is entitled to reasonable and fair provision to be made and maintenance to be paid by her former husband within the period of iddat. Under Section 3(2) of the Act when the reasonable and fair provision and maintenance due to the divorced woman has not been made or paid, she is entitled to make an application to the competent Magistrate for an order for payment of such provision and maintenance. Therefore, the former husband is liable to pay maintenance and to make reasonable and fair provision within the period of iddat and when he fails to pay the maintenance during the period of iddat and make reasonable and fair provision within the period of iddat then only the divorced woman is entitled to move the competent Magistrate for a direction for payment of maintenance during the period of iddat or reasonable and fair provision as the case may be.
8. Now let us see as to what reasonable and fair provision was made by the respondent husband in the present case. The respondent has deposed that on pronouncing; Talaq he paid Mahr amount of Rs. 5/- to the petitioner wife. He is altogether silent as to what was the maintenance and what other reasonable and fair provision was made by him. The learned counsel for the respondent was also fair enough in submitting that material or evidence on the point is lacking and the matter may be remanded back for fresh consideration. It seems that the learned Principal Judge was satisfied that the payment of Rs. 5/- by the husband to the petitioner wife was sufficient to keep her soul arid body together. Further relying on a decision of the Andhra Pradesh High Court in the case of Sheikh Awadas Saheb v. Sk. Mastan Bibi, 1995 DMC 473 it was held that: law has been settled regarding divorced Muslim wife's claim for maintenance under Section 125, Cr.P.C after passing of the Act. It seems that the contra decision of the other High Courts were not brought to the notice of the learned Judge and even under Section 5 of the Act there is option available to the parties that they may prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure. Admittedly, there was no application under the Act either by the petitioner or by the respondent. The order of maintenance was passed under Section 125, Cr.P.C. on the application of the petitioner and the respondent also filed an application under Section 127, Cr.P.C. Hence the logical inference is that both the parties had opted to be dealt with under the provisions of the Code of Criminal Procedure and not under the Act. As stated above under Section 127, Cr.P.C. divorce per se is not a ground for alteration in allowance.
9. In the result I find that the impugned order is not correct and it has resulted in miscarriage of justice. The revision is allowed and the order dated 20-5-98 passed by the Principal Judge, Family Court in Misc. Case No. 205/97 in Case No. 471/87 is hereby set aside.