Iqbal Shah vs Mst. Bano

B.R. Arora, J.—This petition u/s 482 Cr. P.C. has been filed against the order dated May 7, 1988, passed by the Additional Sessions Judge, Chittorgarh in Criminal Revision Petition No. 85 of 1985, and also the order dated July 16, 1988, passed by the Additional Munsif and Judicial Magistrate, First Class, Kapasan. Though a single petition is not maintainable against the two separate orders passed by the two separate Courts in two separate proceedings, but since the notice has been issued by the Court and the opposite party has put-in appearance, I, therefore, propose to decide the same rejecting the objection regarding the maintainability raised by the learned Counsel for the non-petitioner.

Mst. Bano W/o Iqbalshah filed an application u/s 125 Cr. P.C. for grant of maintenance for herself and for her three minor children in the Court of the Judicial Magistrate, Kapasan on November 2, 1985. It was mentioned in the application that she was married to Iqbalshah and out of the wed-lock, three sons were born to her and she has been forcibly turned-out from the house and the period during which she remained with her husband, she was cruely treated by her husband. Now, she has come to know that the non-petitioner Iqbalshah has contacted second marriage with Mumtaz alias Munna on October 16, 1982. It was, also, mentioned that as she has no independent source of income to maintain herself and her children, therefore, an amount of Rs. 1000/-per months may be awarded to her as maintenance to maintain herself as well as to her three children. This application was contested by the non-applicant Iqbalshah and in the reply it was stated that he did not turn-out Mst. Bano from his house, but her father had taken her away and she is not coming back. If she comes back, he is ready to maintain her. The factum of second marriage was, also, denied. Both the parties led their evidence and the learned Magistrate, by his order dated January 25, 1985, allowed the application filed by the applicant Mst. Bano and awarded the maintenance of Rs. 300/-per month for herself as well as for her three children. Dissatisfied with this order, passed by the learned Munsif and Judicial Magistrate, First Class, Kapasan, the petitioner preferred a revision petition before the learned Additional Sessions Judge, Chittorgarh, and the learned Additional Sessions Judge, by his order dated May 7, 1988, rejected the revision petition filed by the petitioner. It is against this order that this petition u/s 482 Cr. P.C. has been filed.

I have heard the learned Counsel for the parties.

Iqbalshah did not pay the amount of maintenance granted by the learned Munsif and Judicial Magistrate, Kapasan, which order was confirmed by the learned Additional Sessions Judge, Chittorgarh. Mst. Bano, therefore, moved an application u/s 125 Cr. P.C. in the Court of the learned Magistrate on March 28, 1986 for the recovery of the maintenance allowance with effect from March 25, 1985 to March 24, 1986. On that application, the Court passed an order on July 16, 1988, by which the Court directed Iqbalshah to make payment of the amount of Rs. 3600/- towards maintenance to the petitioner Mst. Bano, and, in default of payment, he was directed to be sent to the jail for thirty days. It is, also, against this order that the present petition u/s 482 Cr. P.C. has been filed. It will not be out of place to mention here that the petitioner, against this order dated July 16, 1988, preferred a revision petition, also, before the learned Additional Sessions Judge, Chittorgarh, which was registered as Criminal Revision Petition No. 59 of 1988, and in that revision petition, an order was passed on July 21, 1988, that if Iqbalshah deposits the amount of Rs. 1000/-, he may be released from jail. It is, thus, clear that when this petition u/s 482 Cr. P.C., challenging the order dated July 16, 1988, was preferred before this Court, at that time the revision petition was already filed in the Court of the Additional District & Sessions Judge, Chittorgarrh, and an order was obtained.

Heard learned Counsel for the petitioner as well as the learned Counsel for the respondent Mst. Bano.

It is contended on behalf of the petitioner that the petitioner has divorced Mst. Bano on October 16, 1982 and as such, Mst. Bano is not entitled for any maintenance in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred as ''the Act of, 1986''). His further submission is that the liability of the petitioner with respect to the children of the divorced wife is, also, limited upto two years of their age in view of the provisions of Section 3(1)(b) of the Act, of 1986. In the alternative, his argument is that the non-petitioner Mst. Bano had left the house of the petitioner without any just cause and, therefore, she is not entitled to any maintenance. The learned Counsel for the non-petitioner, on the other hand, has supported the order passed by the learned lower Court. He has submitted that the ground of divorce has been taken by the petitioner for the first time in this Court while filing this miscellaneous petition. Prior to that, the ground of divorce was never taken by the petitioner in his reply to the application u/s 125 Cr. P.C. filed in the Court of the Munsif and Judicial Magistrate, Kapasan, or in his statement recorded by the trial Court. In the revision petition, also, he did not take this ground and even this ground was never argued before the learned Additional Sessions Judge, which is clear from the order itself. His further submissions is that in the order dated July 16, 1988, passed by the learned Munsif and Judicial Magistrate First Class, Kapasan, there is no mention of this ground in it.

I have considered the rival submissions made by the counsel for the parties and perused the orders passed by the Courts below as well as the record of the case.

The petitioner, for the first time, agitated this ground of divorce in this petition u/s 482 of the Code of Criminal Procedure and prior to it, this ground of divorce was neither taken in the reply nor was it agitated before the Courts below. Even in his statement recorded in the trial Court, he has not stated that he ever divorced Mst. Bano. In the statement before the trial Court, he has only stated that he has not cruely treated Mst. Bano nor has he turned her out from his house but she has left the house without any reason and she was taken by her father. He is ready to keep her but she is not coming. In the revision petition, filed before the learned Additional Sessions Judge, this ground was also, not taken nor was it agitated before the learned Additional Sessions Judge. In the order dated July 16, 1988, passed by the learned Additional Munsif and Judicial Magistrate, it has been mentioned that Iqbalshah moved an application on July 16, 1988 in the Court of the Judicial Magistrate, First Class, Kapasan that he has already given divorce to the non-petitioner Mst. Bano and, therefore, she is not entitled for any maintenance. Prior to that, no such ground was taken by the petitioner. It is not necessary that a particular form may be adopted for giving the divorce. What is required under the Muslim Law to give divorce to the wife is to pronounce: "TALAK, TAKAK, TALAK" thrice and that completes the divorce. Prior to July 16, 1988, no divorce was given by the petitioner. Even if we taken the application filed by the petitioner in the Court of the Munsif and Judicial Magistrate, Kapasan as the act of giving divorce, the divorce by the petitioner to Mst. Bano can be treated, in this view of the matter, even from July 16, 1988, and not prior to that. The learned Counsel for the petitioner has placed on record a photostat copy of the "TALAK-NAMA", alleged to have been written on October 16, 1982, and has, also, placed on record an application dated NIL, which appears to have been filed in the Court on July 16, 1988. In my view, if the petitioner would have given divorce to Mst. Bano on October 16, 1982, as alleged by him, then he would have taken this stand in his reply to the petition u/s 125 Cr. P.C., which was filed on January 20, 1983, i.e. three months after the alleged divorce and he could have, also, taken this stand in his statement recorded by the learned Judicial Magistrate in these very proceedings on August 25, 1984. After this, there was an opportunity available to the petitioner to have agitated the point when the matter was argued and thereafter he could have, also, taken this ground in the Memo of Revision filed before the learned Additional Sessions Judge and at the time of arguments in the revision petition before the learned Additional Sessions Judge. Non-mentioning of this fact in the revision petition and the reply as well as in the statement and not agitating it before both the learned lower Courts, in my view, reveals that the theory of ''divorce'' has been cooked-up after the decision in the revision petition was given by the learned Additional Sessions Judge. When this point was never agitated before the learned Additional Sessions Judge, he could not have taken the note of this. In this view of the matter, I am of the opinion that the learned lower Court has not committed any illegality in allowing the maintenance to the applicants on the application filed by Mst. Bano.

Now, I take the next question: whether Mst. Bano was treated with cruelty and was forcibly turned-out from the house of the petitioner Iqbalshah and when he is ready to keep her with him and she is residing with her father, weather she is entitled for any maintenance for herself as well as for her three children? The learned lower Courts have properly appreciated the evidence on record, produced by the parties, and has arrived at a just conclusion that she was treated with cruelty and was turned-out from the house by the petitioner and she is living with her father. From the evidence produced by the non-applicant, it has, also, come on record that the petitioner has contacted second marriage with Mumtaz alias Munna. After carefully going through the evidence on record, I am, also, of the view that the learned lower Court have not committed any illegality in awarding the maintenance to the non-petitioner Mst. Bano and her three children.

Now, coming to the question: whether the order dated July 16, 1988, passed by the learned Munsif and Judicial Magistrate, Kapasan, is just and proper? Suffice it to say that the petitioner, against this order, preferred a revision petition before the learned Additional Sessions Judge, Chittorgarh, which was numbered as Criminal Revision Petition No. 59 of 1988 (Iqbalshah v. Mst. Bano), in which an interim order was passed by the learned Additional Sessions Judge on July 21, 1988. The petitioner suppressed this fact while presenting this petition. As the revision petition has already been preferred by the petitioner in the Court of the learned Additional Sessions Judge, Chittorgarh, therefore, the validity of that order dated July 16, 1988, passed by the Court below is not required to be dealt-with. That matter will be decided by the learned Additional Sessions Judge himself.

Even otherwise, as per the provisions of the Act of 1986, the wife is entitled for the maintenance upto the IDDAT period and so far as the children of the divorced wife are concerned, it is the obligation of the father, under the Muslim Law as well as under the provisions of Section 125, Cr. P.C., to maintain his minor children. The right of the wife to get maintenance for the period to two years from the date of birth in connection with the children is the right of wife u/s 3 of the Act of 1986 and has no connection whatsoever with the right of the children to get maintenance from their father. The right of the children is a sacred and independent right of the divorced Muslim wife to claim maintenance. The obligation to maintain the children is the personal obligation of the father.

In this view of the matter, this petition u/s 482 Cr. P.C., filed by the petitioner, has got no force and is hereby dismissed.