M. Abdul Malick vs Rizwana Begum and Anothers

Maheswaran, J.—This revision by the husband Abdul Malick is filed against the order of the learned Sub-Divisional Judicial Magistrate,

Thirupathur, North Arcot District granting maintenance to respondents who are his wife and daughter. The revision petitioner married the first

respondent on 17th September, 1972 at Ambur. The second respondent, a girl has born to them on 3rd August, 1976. According to the first

respondent who filed the application for maintenance before the learned Magistrate, she, who lived happily with the revision petitioner for about a

year went to her mother''s house for confinement; but, after she was delivered of a child, the revision petitioner came and saw the child and then

did not take her back. The further contention of the first respondent was that all her attempts to live with her husband, the revision petitioner

proved futile, that despite many efforts by the members of the ''Jamarth'' the revision petitioner never took back the first respondent and her child,

that the respondents have no means to support themselves. She also contended that the revision petitioner is earning about Rs. 10,000/- per year

doing business in Bombay and that he also gets a rent of Rs.500/- and that she is entitled to a maintenance of Rs. 200/- and the second respondent

is entitled to a maintenance of Rs. 100/- per mensum.

That application of the first respondent was resisted by the revision petitioner who in his answer contended that the first respondent took away

jewels valued Rs. 35,000/- which belonged to his deceased first wife and that she left for her mother''s house on her own accord, that the

allegation that there was Panchayat is false and that as she was not willing to come and reside with him, she is not entitled to the maintenance

claimed.

The learned Magistrate on the evidence adduced before him came to the conclusion that the respondents are not having sufficient means to

maintain themselves and found that respondents are entitled to maintenance and granted a maintenance of Rs. 75/- per month so far as the first

respondent is concerned and Rs. 30/- per month so far as the second respondent is concerned. Aggrieved over this order, the revision petitioner

has filed Crl. Rev. Case No.278 of 1977.

The respondents are also aggrieved and have filed Crl. Rev. Case No. 470 of 1977 on the file of this Court for enhancement of maintenance

amounts.

The fact that the revisions petitioner and the first respondent are married admits of no doubt. The revision petitioner himself has admitted that he

has married the first respondent. He has also admitted that the second respondent is his child born through the first respondent. Before me, the

learned counsel appearing for the revision petitioner/husband contended that the first respondent has been divorced by the revision petition that a

written Talaq was pronounced and that he has also paid the Talaq amount and also mahar amount and Idath amount, and therefore, the Magistrate

should not have granted maintenance to the first respondent under S. 125 of the Crl. P.C.

The parties are Muslims. They were married according to their personal law by which they are governed. In Crl. Rev. Case No. 750 of 1976,

Md. Hanif v. Saleema 1973 L.W. (Crl.) 190 . I have had occasion to consider the impact of S. 127(3)(b) of the Code of Criminal Procedure on

S. 125 of that Code. I have held in that case that S. 127(3)(b) clearly controls S. 125 of the Code of Criminal Procedure and the Magistrate will

not have jurisdiction to proceed under S. 125 of the Code if the provisions under S. 127(3)(b) have been complied with.

Mr. Gopinathan, the learned counsel for the revision petitioner/husband also invited my attention to the decision in Smt. Zubedabi v. Abdul

Kadar (1978) M.L.J. (Crl.) 280 wherein the learned Judge of the Karnataka High Court at Bangalore took the same view that I have taken in the

said Revision Petition. The learned Judge is also of the view that S. 127 controls the provision under S. 125 of the Code of Criminal Procedure.

There is nothing in S. 125 prohibiting the husband from raising the plea that S. 127(3)(b) has been complied with, and therefore, the Magistrate

cannot pass an order under S. 125 granting maintenance to the divorced wife.

If there is evidence in the enquiry under S. 125 that the husband had already paid what was due to the wife under the personal law, the

Magistrate is bound to consider that and if the husband is able to satisfy the Magistrate that he has paid the divorced wife what was required to be

paid under the personal law, the Magistrate cannot proceed under S. 125 and grant maintenance. Now, in this case the learned counsel for the

revision petitioner invited my attention to Ex. P 1 and also to Ex. P.1(a), a translation of Ex. P.1 filed and relied on by the wife/first respondent

before the lower Court. Ex. P.1 which is written in Urudu addressed to the wife by the husband shows that the husband has pronounced Talaq in

writing. That fact is evident from the translation of Ex. P 1, which is Ex. P 1(a) and which has not been objected to by the wife. On the other hand,

Ex. P 1(a) the translated copy of Ex. P 1 is filed by the wife/first respondent herself. There is clear evidence that this Ex. P 1 has been received by

first respondent and the amount has also been received by her. Her admission before the trial Court shows that she has received Rs. 800/- viz., Rs.

500/- towards mahar amount and Rs. 300/- towards Idath amount. Mr. Govindan, learned counsel for the first respondent pointed out that there is

no evidence as to the amount fixed at the time of marriage, and prayed that the matter may go back to the trial Court. Per contra, learned counsel,

Mr. Gopinathan, stated that this amount of Rs. 800/- has been received by the first respondent without any protest and the fact that she had not

raised any objection is clear indication that the amount of Rs. 500/-is fixed as mahar amount at the time of marriage. It is therefore, clear that the

husband-revision petitioner has complied with the provisions contained in S. 127(3)(b) and that the first respondent/divorced wife has been paid

what was required to be paid to her under the personal law. In fact, the learned Magistrate has also referred to this fact of payment of Rs. 800/-

towards mahar amount and the Idath amount in that order. Under those circumstances, I am of the view that the Magistrate''s order granting

maintenance to the wife/first respondent has to be set aside and is accordingly set aside.

As regards the order granting maintenance to second respondent child is concerned, I am of opinion that the order has to be maintained as it is

clearly admitted by the revision petitioner that the second respondent is his child. It should be noted that the revision petitioner has not taken back

the second respondent born to first respondent through him and is not maintaining her. Under these circumstances, the second respondent will be

entitled to maintenance. But, as I have earlier pointed out, Crl. R.C. No. 470 of 1977 has been filed by the respondents herein for enhancement of

maintenance amount. But, in view of the fact that I have held that the first respondent will not be entitled to maintenance as she has been divorced

and paid Mahar and Idath amount, Crl. R.C. 470 of 1977 has to be dismissed as far as the first respondent in Crl. R.C. No. 278 of 1977 is

concerned. As regards the second respondent, I may point out that a sum of Rs. 30/- awarded by the trial court is rather low having regard to the

cost of living. I feel that a sum of Rs. 60/- per month towards maintenance for second respondent/minor child in Crl. R.C. No. 278 of 1977 and

second petitioner in Crl. R.C. No. 470 of 1977 will meet the ends of justice. Here I may also point out that Mr. Gopinathan, learned counsel for

the petitioner says that he has been paying the maintenance amount for both the wife and child regularly till today.

In the result, Crl. R.C. No. 278 of 1977 is partly allowed and the order granting maintenance to first respondent wife is set aside and the Crl.

R.C. No. 470 of 1977 is also partly allowed and a sum of Rs. 60/- is fixed towards maintenance to the second petitioner payable from the date of

this order. Crl. R.C. No. 278 of 1977 is dismissed so far as second respondent is concerned and Crl. R.P. No. 470 of 1977 is dismissed so far as

the first petitioner in concerned.