Gulam Mohammad vs Achhu (Smt.)

Sunil Kumar Garg, J.—This revision petition has been filed by the petitioner-husband (hereinafter referred to as the non-applicant) with the prayer that the order dated 10.2.2003 passed by the learned Judge, Family court, Jodhpur by which he allowed the application filed by the respondent-wife Smt. Achhu (hereinafter referred to as the applicant) u/s 125 Cr.P.C. and granted maintenance allowance of Rs. 500/-p.m. to the applicant and Rs. 300/- p.m. to minor daughter Naseem, be quashed and set aside.

It arises in the following circumstances:

On 12.4.1999, an application u/s 125 Cr.P.C. was filed by the appellant before the Family Court, Jodhpur stating inter-alia that she was married to non-applicant seven years back and out of that wedlock, a daughter, namely, Naseem was born, but her husband non-applicant was treating her with cruelty and forced her to leave her in-law'' house and since she had no means to maintain herself and minor daughter Naseem, therefore, she claimed maintenance allowance of Rs. 1500/-p.m. for herself and Rs. 1000/-p.m. for minor daughter Naseem total Rs. 2500/- p.m..

A reply to the application u/s 125 Cr.P.C, was filed by the non-applicant husband on 7.7.1999 before the Family Court, Jodhpur admitting that the marriage between him and applicant took place and out of that wedlock, a minor daughter Naseem was born. It was further alleged by the non-appellant that the allegations levelled against him with regard to cruelty were baseless and on the contrary, the applicant wife had herself Left the house and thereafter, on 26.1.1996 he alongwith Star (NAW 2) and Yasin (NAW3) went to the house of parents of applicant where she was leaving to bring her back, but the applicant in presence of NAW2 Satar and NAW3 Yasin refused to come with him and sought divorce and therefore, on that day, the non-applicant divorced her in presence of these two witnesses and since the applicant now is a divorced wife, therefore, she is not entitled to maintenance allowance. Hence, it was prayed that the application filed by the applicant u/s 125 Cr.P.C. be rejected.

On behalf of the applicant, there witnesses were examined, namely, AW1 applicant herself, AW2 Ramjan and AW3 Sarfuddin.

From the side of non-applicant, three witnesses were examined, namely, NAW1 non-applicant-himself, NAW2 Abdul Star and NAW3 yasin.

After considering the entire material and evidence on record and after hearing both the parties, the learned Judge, Family Court, Jodhpur through impugned order dated 10.2.2003 allowed the application filed by the applicant u/s 125 Cr.P.C. and granted maintenance allowance of Rs. 500/- p.m. to the applicant and Rs. 300/-p.m. to minor daughter Naseem holding inter-alia:-

i) That on 26.1.1996, the non-applicant gave divorce to the applicant and since then, applicant is a divorced wife and thereafter, there was no occasion on the part of the applicant to live with her husband non-applicant.

ii) That even a divorced muslim wife, until and unless she re-marries or she is unable to maintain herself, is entitled to maintenance u/s 125 Cr.P.C.

iii) That there is no dispute on the point that non- applicant husband has re-married and that fact has been admitted by the non-applicant in his statement recorded in Court as NAWI.

Aggrieved from the said order dated 10.2.2003 passed by the learned Judge, Family Court, Jodhpur, the non-applicant husband has preferred this revision petition.

In this petition, the main contention of the learned counsel for the non-applicant is that since divorce had taken place between the applicant and non-applicant, therefore, the applicant wife is not entitled to maintenance. He had placed reliance on the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as "the Act of 1986") and submitted that the applicant wife is entitled to maintenance upto the period of Iddat and after Iddat period, she is not entitled to maintenance.

I have heard the learned counsel for the non applicant and gone through the record of the case.

In my considered opinion, the above argument of the learned counsel for the non-applicant cannot be appreciated at all because even u/s 4 of the Act of 1986, a divorced woman is entitled to move an application for maintenance after the expiry of Iddat period on two grounds, namely:-

a) that she has not re-married; and

b) that she was unable to maintain herself.

Furthermore, wife in Section 125 Cr.P.C. includes divorced Muslim wife and benefits of Section 125 Cr.P.C. extend to her so long as she has not remarried after divorce and she was unable to maintain herself. There statutory right available to her u/s 125 Cr.P.C. is unaffected by the provisions of personal law applicable to her. For that reliance can be placed on the decision of Hon''ble Supreme Court in Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, Similar view has been taken by the Hon''ble Supreme Court in Mst. Zohara Khatoon v. Mohd. Ibrahim 1986(2) Crimes 143 SC . In this respect, the decision of the Hon''ble Supreme Court in Danial Latifi and Another Vs. Union of India, may also be referred to.

Apart from this, the provisions of the Act of 1986 nowhere provide that the divorced wife is not entitled to file application u/s 125 Cr.P.C. for maintenance.

In the present case, there is no dispute on the point that there are finding of the Family Court that the applicant wife has not re-married after she was divorced by the non-applicant and that she was unable to maintain herself,

Therefore, when this being the position, to say that the applicant wife is not entitled to maintenance u/s 125 Cr.P.C. cannot be accepted.

Apart from the above, when the non-applicant husband has re-married, therefore, living separately from him is also justified on the part of the applicant wife. From this point of view also, the applicant can claim maintenance living separately from her husband non-applicant.

So far as the rights of children of muslim parents to claim maintenance is concerned, it can be said that they are not affected by the provisions of the Act of 1986. Thus, both under the personal law and the statutory law (Section 125 Cr.P.C.) the obligation of a muslim father, having sufficient means to maintain his minor children, unable to maintain themselves till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife. For that, reliance can be placed on the decision of the the Hon''ble Supreme Court in Noor Saba Khatoon Vs. Mohd. Quasim,

Therefore, there can be no dispute on the point that in case of children, the husband, who has divorced his wife and children are living with the divorced wife, is under an obligation to maintain his minor children till they attain majority and in case of females till they get married.

For the reasons stated above, the argument that after Iddat period, the applicant is not entitled to maintenance u/s 125 Cr.P.C. stands rejected and the Family Court has rightly awarded maintenance allowance to the applicant wife and minor daughter Naseem under the provisions of Section 125 Cr.P.C. There is no basic illegality or infirmity in the impugned order of granting maintenance allowance to the applicant and minor daughter Naseem and therefore, no interference is called for with the same and this revision petition deserves to be dismissed.

Accordingly, this revision petition filed by the petitioner-non-applicant is dismissed.