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Divorced Muslim wife petition for maintenance under sec.125 Cr.P.C. is directed to be converted suo-moto by Magistrate and directed to decided the same under MWP ACT = i. That divorced muslim wife would be entitled to maintenance from her husband under section 125 of Criminal Procedure Code subject to provisions of MWP Act. ii. That law laid down by the Apex Court in Saha Bano’s case (Supra) [Mohammad Ahamad Khan Vs. Saha Bano Begam AIR1985 SC 945: (1985)2 SCC 556] has been analyzed and codified the same in Muslim Women (Protection of Rights on Divorce) Act 1986. iii. In Dainial Latifi’s case (Supra) The validity of Muslim Women (Protection of Rights on Divorce) Act, 1986 has been upheld. iv. In view of provisions contained in section of 5 of MWP Act if the parties have exercised their option, the parties to be governed by provisions of Section 125 to 128 of Criminal Procedure Code, and not in accordance with the provisions contained in MWP Act. The application so given under MWP Act shall be disposed of in view of the provisions contained in Section 125-128 Cr.P.C. v. In section 125 the word ‘ Divorced women’ include muslim women, who has been married accord to Muslim Law and has been divorced by or has obtained divorce from her husband in accordance with Muslim Law. vi. That MWP Act will not apply to a muslim women whose marriage has been solemnized either under the Indian Special Marriage Act 1954 or a Muslim women whose marriage was dissolved either under Indian Divorce Act, 1969 or Indian Special Marriage Act, 1954. vii. When a petition is filed by divorced muslim women for her maintenance before a family court, section 7 of the Family Court Act, 1987 would be applied. In view of of section 20 of Family Courts Act 1984, the provisions of Family Courts Act shall have overriding effect over all other law for the time being in force including the provisions of MWP Act . Any suit or proceeding for maintenance filed before family Court by any women including muslim women be governed by provisions of Section 125 Cr.P.C, which is a common law applicable to all the women and thus Family Courts are competent to decide the application of muslim divorced women under section 125 Cr.P.C. viii. The court proceeding under section 125 Cr.P.C. if is of the opinion that the matter relates to reasonable and fair provision and maintenance to divorced muslim women it would be open to him to treat the application under MWP Act instead of rejecting the same because the proceeding under section 125 Cr.P.C. and claim made under MWP Act could be tried by one and the same court.

reported/published in http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

Reserved
AFR
High Court of judicature at Allahabad,
Lucknow Bench, Lucknow
District- Lucknow

Writ Petition No. – 4909 (M/S) of 2008

Rafiquddin son of Raisul Zama, resident of Village and post Vaishpur,
P.S.-Mandhata, District Pratapgarh.
………………… Petitioner
Vs.
1. Kishwar Jehan, daughter of Sri Habibur Rehman, resident of village Bahlolpur, P.O. – Sahebganj, P.S. Lalganj, District – Pratapgarh.
2. State of U.P.
………………… Opposite Parties

Petitioner/Revisionist Counsel :- Mohd. Abid Ali, Advocate
Respondent /Opposite party Counsel :- Govt. Advocate,
Hon’ble Vishnu Chandra Gupta,J.
Judgment
1. This writ petition has been filed with the following prayers :
(i) By means of a writ, order or direction in the nature of Certiorari, the judgment and order dated 13.07.2007, passed by the Apar Civl Judge (Junior Division), Judicial Magistrate, Court No. 18, District Pratapgarh, in Criminal Case No. 227 of 2005; In re : Kishwar Jehan and others Vs. Rafiquddin and the judgement and order dated 2.9.2008, passed by the Apar Satra Nayayadheesh, Court No. 3, Pratapgarh, passed in Criminal Revision No. 216 of 2007; In ref ; Rafiquddin Vs. Kishwar Jehan and others, so far as it relates to award of maintenance to the opposite party no. 1 is concerned, may kindly be quashed.
(ii) My means of a writ, order or direction in the nature of mandamus may kindly be issued, directing the learned courts below to decide the case and revision in accordance with law.
(iii) Any other writ, order of direction which this Hon’ble Court may deem fit in order to grant an appropriate relief to the petitioner be also issued.
(iv) Court of the writ petition be awarded to the petitioner.

2. The facts in brief for deciding this petition are that opposite party no. 1 Kishwar Jehan moved an application under section 125 Criminal Procedure Code (hereinafter referred to ‘Cr.P.C.’) for grant of maintenance for herself and her two children born out of the wedlock of petitioner Rafiquddin and Kishwar Jehan (O.P. No. 1). Both children were minor at the time of presentation of petition under section 125 of Criminal Procedure Code (for short ‘Cr.P.C.”). On 23.8.2001 this petition was filed before Additional Civil Judge (junior Division)/J.M. Pratapgarh. The learned Magistrate vide order dated 13.7.2007 allowed the petition fixing maintenance of Rs. 1000/- per month for opposite party no. 1 Kishwar Jehan and Rs. 500/- per month each to both minor children till they attain majority. The order passed by the Magistrate was challenged in a Criminal Revision before Sessions Judge having Criminal Revision No. 216 of 2007 but the Additional Sessions Judge confirmed the order dated 13.7.2007 passed by the Magistrate vide its order dated 2.9.2008. Aggrieved by the aforesaid orders passed by the Magistrate and the Sessions Judge in revision, this petition has been filed.
3. The orders have been assailed mainly on the grounds that in view of provisions contained in Muslim Women (Protection of Rights on Divorce) Act 1986 (For short ‘MWP Act’) the divorced muslim woman would not be entitled to claim maintenance from her husband under section 125 Cr.P.C. after expiry of period of Iddat. The second ground for challenge is that initially the application has been moved by opposite party no. 1 for maintenance of her two minor children and not for herself but she manipulated the application and inserted her name also.
4. So far entitlement of the respondent no.1 for maintenance under section 125 Cr.P.C. is concerned, the counsel for the respondent relied upon the judgment of the Apex Court in Shabana Bano Vs. Imran Khan, reported in 2010 (1) CCSC 15 (SC). On the basis of it the counsel for respondent no.1 contended that though,there is a provision for grant of maintenance under the MWP Act but the divorced muslim wife cannot be denied maintenance under section 125 Cr.P.C.. He also relied upon another judgment of the Supreme Court in AIR 2001 (SC) 3958,Danial Latifi and another Vs. Union of India and contended that in Imran Khan’s case (Supra) this case has been relied upon by the Apex Court.
5. To decide this petition relevant provisions of the statutes are to be looked into. Therefore, the relevant provisions necessary for deciding this petition contained in Section 125 and 127(3)(b) Cr.P.C., Section 3, 4 and 5 of MWP Act, and Section 7 and 20 of Family Court Act,1984(for short ‘FC Act) are extracted herein below:-
Section 125 Cr. P.C
“125. Order for maintenance of wives, children and parents.-
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d)his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
Explanation.- For the purposes of this Chapter,-
(a) ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b) ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’ s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’ s refusal to live with him.
(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

Section 127(3)(b) Cr.P.C.
127. Alteration in allowance.
(1) …..
(2) ……
(3)…..
(a) ……
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-
(i) In the case where such sum was paid before such order, from the date on which such order was made,
(ii) In any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) …….
(4) …….
Section 3 of The Muslim Women (Protection Of Rights On Divorce) Act, 1986

3. Mahr or other properties of Muslim woman to be given to her at the time of divorce.-
(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to-
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. marriage
(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub- section (1) have not been delivered to a divorced woman on her divorce, she or any o ne duly authorized by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties; as the case may be.
(3) Where an application has been made under sub- section (2) by a divorced woman, the Magistrate may, if he is satisfied that-
(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or
(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub- section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as it and proper having regard to the needs of he divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub- section (1) the divorced woman:
Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.
(4) If any person against whom an order has been made under sub- section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974 ), and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until ayment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.

Section 4 of The Muslim Women (Protection Of Rights On Divorce) Act, 1986
4. Order for payment of maintenance.- (1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for time being in force, where a Magistrate is satisfied that a divorced woman has not re- married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit nd proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit he property and at such periods as he may specify in his order: Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her: Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub- section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub- section (1), the Magistrate may, by order, direct the State Wakf Board established under se tion 9 of the Wakf Act, 1954 (29 of 1954 ), or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub- section (1) or, as the case may be, to pa the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.

Section 5 of The Muslim Women (Protection Of Rights On Divorce) Act, 1986
5. Option to be governed by the provisions of sections 125 to 128 of Act 2 of 1974 .- If on the date of the first hearing of the application under sub- section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other decl aration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974 ), and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly. Explanation.- For the purposes of this section,” date of the first hearing of the application” means the date fixed in the summons for the attendance of the respondent to the application.

Section 7 in Family Courts Act, 1984
7. Jurisdiction.-
(1) Subject to the other provision of this Act, a Family Court shall–
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation.– The suits and proceedings referred to in this sub- section are suits and proceedings of the following nature, namely:–
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise–
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974 ); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
Section 20 of Family Courts Act,1984
20. Act to have overriding effect.– The provisions of this Act shall have effect notwithstanding any thing inconsistent therwith contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act.

6. Right of muslin women to claim maintenance after divorce from her husband is the question posed for consideration before this Court.
7. This question was dealt with by the Constitution Bench of Hon’ble Supreme Court in well known Saha Bano’s case [Mohammad Ahamad Khan Vs. Saha Bano Begam AIR1985 SC 945: (1985)2 SCC 556]. While dealing with the provisions of section 125 and 127(3)(b) Cr.P.C the Apex Court held that divorced Muslim woman is entitled to maintenance from her husband. The relevant paragraphs of the judgment are reproduced herein below:-

“28. It does appear from this speech that the Government did not desire to interfere with the personal law of the Muslims through the Criminal Procedure Code. It wanted the Muslim community to take the lead and the Muslim public opinion to crystallise on the reforms in their personal law. However, we are not concerned with the question whether the Government did or did not desire to bring about changes in the Muslim Personal Law by enacting Sections 125 and 127 of the Code. As we have said earlier and, as admitted by the Minister, the Government did introduce such a change by defining the expression ‘wife’ to include a divorced wife. It also introduced another significant change by providing that the fact that the husband has contracted marriage with another woman is a just ground for the wife’s refusal to live with him. The provision contained in section 127(3)(b) may have been introduced because of the misconception that dower is an amount payable “on divorce”. But, that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce.

29. It must follow from this discussion, unavoidably a little too long, that the judgments of this Court in Bai Tahira (AIR 1979 SC 362) (Krishna Iyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi (AIR 1980 SC 1730) (Krishna Iyer J., one of us, Chinnappa Reddy J. and A. P. Sen J.) are correct. Justice Krishna Iyer who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation so as to advance the purpose of the law. These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society. We have attempted to show that taking the language of the statute as one finds it, there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance under Section 125 and that, Mahr is not a sum which, under the Muslim Personal Law, is payable on divorce.

30. Though Bai Tahira was correctly decided, we would like, respectfully, to draw attention to an error which has crept in the judgment. There is a statement at page 80 (of S. C. R.) : (at p. 365 of AIR 1979 SC 362) of the Report, in the context of Section 127(3)(b), that “payment of Mahr money, as a customary discharge, is within the cognizance of that provision”. We have taken the view that Mahr, not being payable, on divorce, does not fall within the meaning of that provision.”

8. In Dainial Latifi and another vs. Union of India (2001) 7 SCC 740 the Apex Court concluded that Shabano’s case[Mohammad Ahamad Khan Vs. Saha Bano Begam AIR1985 SC 945: (1985)2 SCC 556] has been codified under MWP Act. The relevant portion of para 32 is extracted below:-

“…. All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this Court in Shah Bano’s case without mutilating its underlying ratio. We have carefully analysed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Bano’s case.”

9. In Danial Latifi’s case (supra) the validity of the Act was upheld. The relevant para 36 reads as follows:-
“36. While upholding the validity of the Act, we may sum up our conclusions:
(1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3 (i) (a) of the Act.
(2) Liability of the Muslim husband to his divorced wife arising under Section 3 (i) (a) of the Act to pay maintenance is not confined to the iddat period.
(3) A divorced Muslim woman who is not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relative who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law for such divorced woman including her children and parents. If any of her relative being unable to pay maintenance, the Magistrate may direct the State Waqf Board established under the Act to pay maintenance.
(4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Indian Constitution.”

10. The Supreme Court while dealing with the provisions of MWP Act and section 125 Cr.P.C. in Danial Latifi’s case (Supra) observed in paragraphs 21 to 29 that rights of Muslim woman would be governed in accordance with the provisions of MWP Act, the relevant paragraphs are extracted below:-

“21. Now it is necessary to analyse the provisions of the Act to understand the scope of the same. The Preamble to the Act sets out that it is an Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. A “divorced woman” is defined under Section 2(a) of the Act to mean a divorced woman who was married according to Muslim Law, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim Law; ” iddat period” is defined under Section 2(b) of the Act to mean, in the case of a divorced woman,-
(i) three menstrual courses after the date of divorce, if she is subject to menstruation;
(ii) three lunar months after her divorce, if she is not subject to menstruation; and
(iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy whichever is earlier.

22. Sections 3 and 4 of the Act are the principal sections, which are under attack before us. Section 3 opens up with a non-obstante clause overriding all other laws and provides that a divorced woman shall be entitled to –
(a) a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband;
(b) where she maintains the children born to her before or after her divorce, a reasonable provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law; and
(d) all the properties given to her before or at the time of marriage or after the marriage by her relatives, friends, husband and any relatives of the husband or his friends.

23. Where such reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made and paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be. Rest of the provisions of Section 3 of the Act may not be of much relevance, which are procedural in nature.

24. Section 4 of the Act provides that, with an overriding clause as to what is stated earlier in the Act or in any other law for the time being in force, where the Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim Law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order. If any of the relatives do not have the necessary means to pay the same, the Magistrate may order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them has not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-section (1), the Magistrate may, by order direct the State Wakf Board, functioning in the area in which the divorced woman resides, to pay such maintenance as determined by him as the case may be. It is, however, significant to note that Section 4 of the Act refers only to payment of ‘maintenance’ and does not touch upon the ‘provision’ to be made by the husband referred to in Section 3(1)(a) of the Act.

25. Section 5 of the Act Provides for option to be governed by the provisions of Sections 125 to 128 Cr.P.C. It lays down that if, on the date of the first hearing of the application under Section 3(2), a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 Cr.P.C., and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.

26. A reading of the Act will indicate that it codifies and regulates the obligations due to a Muslim woman divorcee by putting them outside the scope of Section 125 Cr.P.C. as the ‘divorced woman’ has been defined as “Muslim woman who was married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with the Muslim law”. But the Act does not apply to a Muslim woman whose marriage is solemnized either under the Indian Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969 or the Indian Special Marriage Act, 1954. The Act does not apply to the deserted and separated Muslim wives. The maintenance under the Act is to be paid by the husband for the duration of the iddat period and this obligation does not extend beyond the period of iddat. Once the relationship with the husband has come to an end with the expiry of the iddat period, theresponsibility devolves upon the relatives of the divorcee. The Act follows Muslim personal law in determining which relatives are responsible under which circumstances. If there are no relatives, or no relatives are able to support the divorcee, then the Court can order the State Wakf Boards to pay the maintenance.

27. Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her husband, a reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under Section 3(2) the Muslim divorcee can file an application before a Magistrate if the former husband has not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered the properties given to her before or at the time of marriage by her relatives, or friends, or the husband or any of his relatives or friends. Section 3(3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may think fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of her former husband. The judicial enforceability of the Muslim divorced woman’s right to provision and maintenance under Section (3)(1)(a) of the Act has been subjected to the condition of husband having sufficient means which, strictly speaking, is contrary to the principles of Muslim law as the liability to pay maintenance during the iddat period is unconditional and cannot be circumscribed by the financial means of the husband. The purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat.

28. A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word ‘provision’ indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, food, her clothes, and other articles. The expression “within” should be read as “during” or “for” and this cannot be done because words cannot be construed contrary to their meaning as the word “within” would mean “on or before”, “not beyond” and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.

11. In Sahaban Bano Vs. Imran Khan AIR 2010 SC 350 the impact of section 7 of Family Courts Act,1984 was considered while deciding the liability of husband of a divorced Muslim woman. The relevant part of the judgment is reproduced herein below as contained in para 13,14,15,16,17,18,19,20,21 and 22:-

“13. The basic and foremost question that arises for consideration is whether a Muslim divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 of the Cr.P.C. and, if yes, then through which forum.
Section 4 of Muslim Act reads as under: “4. Order for payment of maintenance :- (1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order :

Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her :
Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.

(2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-section (1), the Magistrate may, by order, direct the State Wakf Board established under Section 9 of the Wakf Act, 1954 (29 of 1954), or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub- section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.”

15. Section 5 thereof deals with the option to be governed by the provisions of Sections 125 to 128 of the Cr.P.C. It appears that parties had not given any joint or separate application for being considered by the Court. Section 7 thereof deals with transitional provisions.

16. Family Act, was enacted w.e.f. 14th September, 1984 with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.

17. The purpose of enactment was essentially to set up family courts for the settlement of family disputes, emphasizing on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. In other words, the purpose was for early settlement of family disputes.

18. The Act, inter alia, seeks to exclusively provide within jurisdiction of the family courts the matters relating to maintenance, including proceedings under Chapter IX of the Cr.P.C.

19. Section 7 appearing in Chapter III of the Family Act deals with jurisdiction. Relevant provisions thereof read as under :
“7. Jurisdiction – (1) Subject to the other provisions of this Act, a Family Court shall – (a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends.
Explanation.- The suits and proceedings referred to in this sub- section are suits and proceedings of the following nature, namely :-
(a) …. …. ….
(b) …. …. ….
(c) …. …. ….
d) …. …. ….
(e) …. …. ….
(f) a suit or proceeding for maintenance;
(g) …. …. …. “

20. Section 20 of the Family Court Act appearing in Chapter VI deals with overriding effect of the provisions of the Act. The said section reads as under :

“20. Act to have overriding effect – The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

21. Bare perusal of Section 20 of the Family Act makes it crystal clear that the provisions of this Act shall have overriding effect on all other enactments in force dealing with this issue.

22. Thus, from the abovementioned provisions it is quite discernible that a Family Court established under the Family Act shall exclusively have jurisdiction to adjudicate upon the applications filed under Section 125 of Cr.P.C.”

12. The Apex Court in Shabana Bano’s case (supra) after taking into concideration the Dainial Latifi and Anr. v. Union of India(2001 AIR SCW 3932), while deciding the validity of the act also settled the the rights of a divorced Muslim woman . The relevant paragraphs are extracted below

“24. In our opinion, the point stands settled by judgment of this Court reported in (2001) 7 SCC 740 : (2001 AIR SCW 3932) titled Danial Latifi and Anr. v. Union of India pronounced by a Constitution Bench of this Court. Paras 30, 31 and 32 thereof fully establish the said right of the appellant. The said paragraphs are reproduced hereinunder :

“30. A comparison of these provisions with Section 125, Cr.P.C. will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.

31. Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125 CrPC would now be granted under the very Act itself. This being the position , the Act cannot be held to be unconstitutional.”
13. In Iqbal Bano Vs. State of U.P. and another,(2007)6 SCC 785 the Apex Court taking into consideration the another judgment of Supreme Court in Vijay Kumar Prasad v. State of Bihar and Ors. (2004 (5) SCC 196), it was held that proceedings under Section 125 Cr.P.C. are civil in nature. The relevant para 9 read as under:-
” Proceedings under Section 125 Cr.P.C. are civil in nature. Even if the Court notices that there was a divorced woman in the case in question, it was open to him to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125 Cr.P.C. and claims made under the Act are tried by the same Court.”

14. In view of the above discussion made, I summarize the legal proposition of law propounded by the Apex Court in the judgments mentioned above:
i. That divorced muslim wife would be entitled to maintenance from her husband under section 125 of Criminal Procedure Code subject to provisions of MWP Act.
ii. That law laid down by the Apex Court in Saha Bano’s case (Supra) [Mohammad Ahamad Khan Vs. Saha Bano Begam AIR1985 SC 945: (1985)2 SCC 556] has been analyzed and codified the same in Muslim Women (Protection of Rights on Divorce) Act 1986.
iii. In Dainial Latifi’s case (Supra) The validity of Muslim Women (Protection of Rights on Divorce) Act, 1986 has been upheld.
iv. In view of provisions contained in section of 5 of MWP Act if the parties have exercised their option, the parties to be governed by provisions of Section 125 to 128 of Criminal Procedure Code, and not in accordance with the provisions contained in MWP Act. The application so given under MWP Act shall be disposed of in view of the provisions contained in Section 125-128 Cr.P.C.
v. In section 125 the word ‘ Divorced women’ include muslim women, who has been married accord to Muslim Law and has been divorced by or has obtained divorce from her husband in accordance with Muslim Law.
vi. That MWP Act will not apply to a muslim women whose marriage has been solemnized either under the Indian Special Marriage Act 1954 or a Muslim women whose marriage was dissolved either under Indian Divorce Act, 1969 or Indian Special Marriage Act, 1954.
vii. When a petition is filed by divorced muslim women for her maintenance before a family court, section 7 of the Family Court Act, 1987 would be applied. In view of of section 20 of Family Courts Act 1984, the provisions of Family Courts Act shall have overriding effect over all other law for the time being in force including the provisions of MWP Act . Any suit or proceeding for maintenance filed before family Court by any women including muslim women be governed by provisions of Section 125 Cr.P.C, which is a common law applicable to all the women and thus Family Courts are competent to decide the application of muslim divorced women under section 125 Cr.P.C.
viii. The court proceeding under section 125 Cr.P.C. if is of the opinion that the matter relates to reasonable and fair provision and maintenance to divorced muslim women it would be open to him to treat the application under MWP Act instead of rejecting the same because the proceeding under section 125 Cr.P.C. and claim made under MWP Act could be tried by one and the same court.

15. In the light of aforesaid legal aspect it is necessary to examine the fact of the case in hand. In this case opposite party moved an application under section 125 Cr.P.C. for grant of maintenance for herself and her two children born out of the wedlock of petitioner Rafiquddin under section 125 Cr.P.C. before the Judicial Magistrate and not before the family court. The fact that Raffiqudin the petitioner, gave divorce to Kishwar Jehan before filing the application under section 125 Cr.P.C. has not been denied by Kishwar Jehan and virtually admitted this fact in his own application under section 125 Cr.P.C. However the Mahar has been paid at the time of divorce or was due or not has not been admitted by the parties. The learned Magistrate in the light of section 125 Cr.P.C. awarded the maintenance of Rs. 1000/- per month to wife Kishwar Jahan and Rs. 500/- each per month to both minor children till they attain majority. The learned Magistrate after taking into consideration the provisions of MWP Act ruled that dispite the provisions of MWP Act there is no bar to grant maintenance to muslim divorced wife after relying upon Denial Latifi’s case (Supra). When this order was challenged before revisional court the revisional court dismissed the revision upholding the judgment of the Magistrate. In this case, the application has not been filed before the family court for maintenance and was filed before a Magistrate under section 125 Cr.P.C. The husband has challenged the right of Kishwar Jehan opposite party no. 1 to claim maintenance beyond period of Iddat in view of provision of MWP Act. So in view of the above noted admitted facts, on the date of presentation of application under section 125 Cr.P.C., Kishwar Jehan was a divorced muslim wife. As such her right to claim maintenance from her husband would governed by provisions of section 3 and 4 of MWP Act. After taking into consideration the provisions contained in Section 5 of MWP Act it cannot be said that the petitioner husband has opted to get the application decided under provisions of section 125 to 128 Cr.P.C, rather he exercised the option to proceed in terms of section 3 and 4 of MWP Act. In view of these facts the learned Magistrate should proceed to decide the application in accordance with the provisions of MWP Act, even if the application was moved under section 125 Cr.P.C. as held by the Apex Court in Iqbal Bano’s case (Supra). As provision was available in section 3 of MWP Act to deal with maintenance of a Muslim Women divorced by her husband, therefore, this court is of the view that the order passed by the court of Magistrate granting maintenance to wife in terms of section 125 Cr.P.C. is not sustainable and is based on misinterpretation of provisions Of MWP Act and the law laid down by Apex Court in Denial Latifi’s case, consequently the order confirming the order of Magistrate in revision to the extent of grant of maintenance to Kishwar Jehan would also not be sustainable. It is important to mention here that grant of maintenance to minor children is not under challenge so no opinion is required to be given in this matter by this Court so far as maintenance of children are conernd .
16. From perusal of application moved before the Magistrate it appears that the name of Smt. Kishwar Jehan was mentioned in array of parties by hand (Hand written). The petitioner in his objection denied the right of his wife to claim relief in the light of section 125 Cr.P.C. Hence it cannot be said that there is any manipulation or alteration in the application.
17. In view of the aforesaid facts and circumstances petition deserves to be allowed and the matter is required to be remanded back to the Magistrate concerned to decide the matter afresh in terms of provisions contain in MWP Act so far it relates to question of grant of maintenance to Kihswar Jehan.
18. Consequently, this writ petition is allowed. The judgment and the order dated 13.7.2007 passed by Addl. Civil Judge (Junion Division)/ Judicial Magistrate, Court no. 18 District Pratapgarh in criminal case no. 217 of 2005, Kishwar Jahan and Ors. Vs. Rafiquddin and the judgment and order dated 2.9.2008 passed by Addl. Sessions Judge, court no. 3, Pratapgarh in Crminal Revision No. 216 of 2007, Rafiquddin Vs. Kishwar Jahan and others are set aside to the extent of grant of maintenance to Kishwar Jehan,the divorced wife of petitioner. The learned Magistrate is directed to re-register the case and after giving opportunity of being heard to the parties concerned decide the application moved by Kishwar Jehan for maintenance to herself in accordance with the provisions contained in MWP Act within six months from the date of production of certified copy of this order.
19. It is also provided that the amount, if any, paid by the petitioner to her wife or deposited by him either before this court or revisional court or before the court of Magistrate , if yet not paid to the wife , shall not be refunded to the petitioner and shall be subjected to adjustment in the amount determined in the final order passed by the court while deciding the petition in view of observations made by this Court in this order.
20. No other issue or point has been pressed or argued by the parties Counsel
21. There shall be no order as to cost.

Dated : 2nd April,2013
S. Kumar

(Justice Vishnu Chandra Gupta )

 

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