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Judgment
P.R. Shivakumar, J.—The order of maintenance passed by the learned Chief Judicial Magistrate, Villupuram in M.C. No. 10 of 2004
granting maintenance for the respondents herein u/s 125 of Code of Criminal Procedure, is challenged in this criminal revision case.
The brief facts leading to the filing of the present revision case can be stated thus:
i) The revision petitioner is the husband of the first respondent and father of respondents 2 and 3 herein. The first respondent-wife was Hindu by
birth. There developed an intimacy between the first respondent herein and the revision petitioner who had already married another Muslim
woman. Pursuant to the said intimacy, the first respondent converted to Islam and then the revision petitioner married her in accordance with the
law applicable to Muslims. Out of the said wedlock, respondents 2 and 3 were born to them. (ii)Contending that the revision petitioner failed and
neglected to maintain the respondents and that the respondents did not have means to maintain themselves, the first respondent herein filed a
petition u/s 125 of Code of Criminal Procedure in M.C. No. 10 of 2004 on the file of the learned Chief Judicial Magistrate, Villupuram, praying
for an order, directing the revision petitioner herein to pay maintenance at the rate of Rs. 3000/- per month to each one of the respondents herein.
It was also contended in the said petition that the revision petitioner as an Engine Driver employed in Southern Railway, was earning a gross salary
of Rs. 25,000/- per month and the net salary, after deduction was Rs. 9000/- per month. It was further contended that he was having a further
income of Rs. 20,000/- per month from his money lending business.
(iii) The claim was resisted by the revision petitioner by filing a counter statement contending that the first respondent was not entitled to claim
maintenance u/s 125 of Code of Criminal Procedure as the marriage had been validly terminated by the revision petitioner by pronouncing ''Talag''.
The further contention raised in the counter-statement was that the first respondent developed intimacy with another Hindu by name Rajendran and
reverted back to her original Hindu practice and idol worship; that in view of the same her marriage with the revision petitioner became
automatically nullified and that hence she was dis-entitled to be the mother of the children, the respondents 2 and 3. It was also contended that the
allegations made in the maintenance case regarding the income of the revision petitioner were also denied as false. Based on the said averments
found in the counter-statement, the revision petitioner had prayed for the dismissal of the maintenance petition.
(iv) Two witnesses examined and 13 documents were marked on the side of the respondents/claimants in the maintenance case. The revision
petitioner as respondent in the maintenance case figured as sole witness and marked three documents on his side. At the conclusion of enquiry, the
learned Chief Judicial Magistrate, Villupuram accepted the case of the respondents herein and passed an order awarding maintenance to the first
respondent herein at the rate of Rs. 2000/- per month and for the minor respondents 2 and 3 at the rate of Rs. 1500/- per month, from the date of
filing of the claim petition. The correctness and legality of the said order is put in issue in this criminal revision case.
This Court heard the submissions made by Mr. Md. Ashfag Rafi, learned Counsel appearing on behalf of the revision petitioner/respondent in
the maintenance petition and Mr. S. Srinath, learned Counsel appearing for the respondents/petitioners in the maintenance petition. The materials
available on records were also perused.
Aggrieved against the order dated 13.03.2006 made in M.C. No. 10 of 2004, passed by the learned Chief Judicial Magistrate, Villupuram
directing payment of maintenance to his wife and minor children, the revision petitioner has come forward with this criminal revision case.
There is no dispute that the revision petitioner married the first respondent as his second wife in accordance with the law applicable to Muslims
and out of the lawful wedlock, respondents 2 and 3 were born to them. It is also not seriously disputed that the respondents are having no means
to maintain themselves. On the other hand, the revision petitioner has attempted to disown his liability to maintain the respondents on the ground
that the first respondent (wife) had been divorced by him by pronouncing ''Talag'' in accordance with the law applicable to Muslims. The said
contention of the revision petitioner that he pronounced ''Talag'' and thereby brought about a termination of the matrimonial tie, has been stoutly
disputed by the respondents herein. Even assuming that there could be such a pronouncement, the same was not valid in law, was also the
additional contention raised by the respondents.
The contention of the revision petitioner has been negatived by the learned Chief Judicial Magistrate, Villupuram for which valid reasons have
been assigned. Learned Chief Judicial Magistrate, Villupuram has referred to the evidence adduced on both sides and came to the conclusion that
the said contention of the revision petitioner could not be countenanced. Apart from the oral testimony of P.W.1, the first respondent herein/first
petitioner in the maintenance case, there is also the testimony of one Nazir Ali, examined as P.W.2. Both of them have clearly stated that after her
conversion to Islam, she was following the Islam and was living as a Muslim woman and that the contention of the revision petitioner to the effect
that she had reverted back to Hindu religion and was living un-Islamic life, was an utter falsehood. In corroboration of the oral evidence of P.Ws.1
and 2, Exs.A11 to A13 were also produced. Ex.A.11 is the certified copy of the letter issued by the Muhavalli of Nagore Darga. Ex.A.12 is the
Certificate issued by Muthavalli of Villupuram, Masjide Mohammadia - Ahli Hadees Jama Athe. Ex.A.13 is the bunch of receipts showing that the
first respondent was paying monthly subscription to the Jamad. All these documents go to show that the contention of the revision petitioner as if
the first respondent stopped leading her life as a Muslim woman, is untenable. On the other hand, except the ipse dixit of R.W.1, the revision
petitioner/respondent in the maintenance petition, there is no other supporting evidence to substantiate his contention that the first respondent has
ceased to be a Muslim woman. Therefore, there is no substance in the challenge made to the order of the learned Chief Judicial Magistrate,
Villupuram on the ground that the marriage between the revision petitioner and the first respondent became automatically terminated on the above
said ground and the said contention of the revision petitioner deserves to be rejected.
The next contention raised by the revision petitioner is that the marriage between himself and the first respondent was already terminated by
pronouncement of ''Talaq'' and hence, the first respondent could not have invoked Section 125 of Code of Criminal Procedure for claiming
maintenance. Of course, after Shah Bano Begum''s case, to nullify the effects of the said judgment, ""The Muslim Women (Protection of Rights on
Divorce) Act 1986 (25 of 1986)"" (hereinafter referred to as ''the said Act'') came to be enacted. Section 3 of the said Act starts with a non-
obstante clause and proceeds as follows:- ""Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall
be entitled to the benefits conferred upon her"". At the same time the right of a divorced Muslim woman to have recourse to Sections 125 to 128 of
Code of Criminal Procedure has not been altogether taken away. If the divorced woman and her former husband mutually agree at the first hearing
of the petition filed u/s 3(2) of the said Act that they prefer to be governed by the provisions of Sections 125 to 128 of Code of Criminal
Procedure, by filing an affidavit to that effect, then the provisions of Code of Criminal Procedure will be applicable so far as the said divorced
Muslim Woman vis-a-vis, her former husband is concerned.
Pointing out the said legal provisions, learned Counsel for the revision petitioner would contend that the only remedy applicable to a divorced
Muslim woman is to apply at the first instance to the court u/s 3(2) of the said Act and that she cannot straight away file a petition for maintenance
u/s 125 of Code of Criminal Procedure. In the case on hands, it is true that the first respondent has filed the maintenance case directly u/s 125 of
Code of Criminal Procedure on the file of the learned Chief Judicial Magistrate, Villupuram without first approaching a Magistrate u/s 3(2) of the
said Act. In case it is true that the revision petitioner has validly divorced the first respondent by pronouncing ''Talaq'', then the said contention of
the learned Counsel for the revision petitioner can be accepted.
The learned Counsel for the respondents herein contended that there was no valid pronouncement of ''Talaq'' and that there was no justification
for pronouncement of ''Talaq'' as the reasons assigned were not genuine. The reasons assigned by the revision petitioner for the alleged
pronouncement of ''Talaq'' were, i) renouncing of Islam by the wife, the first respondent and ii) adultery with a non-muslim man on the part of the
wife. Both these grounds have not been substantiated by the revision petitioner and the learned Chief Judicial Magistrate, Villupuram, on a proper
appreciation of evidence, has come to a correct conclusion in this regard.
Above all, as there was a bona fide dispute regarding the factum of pronouncement of ''Talaq'' and the validity of such pronouncement of
''Talaq'', the revision petitioner himself has chosen to file the suit on the file of the learned District Munsif, Villupuram in O.S. No. 575 of 2004 for a
declaration that the marriage got dissolved on both grounds raised by the revision petitioner which have been discussed above. A copy of the plaint
has been produced and marked as Ex.B.1. Apart from the said document, two more documents purporting to be the letters written by the revision
petitioner to the first respondent giving her former name as Kasthuri have also been produced and marked as Ex.R.2 and Ex.R.3. Those two
letters seem to have been written when they were together. There is nothing in those two letters to show that either there was renouncement of
Islam on the part of the first respondent herein or she was leading un-Islamic life. Nor was there any indication to the effect that the revision
petitioner did pronounce ''Talaq''. Therefore, these two documents will not come to the rescue of the revision petitioner. The mere fact that the
revision petitioner had filed a suit before the District Munsif, Villupuram in O.S. No. 575 of 2004 is not enough to prove that there was automatic
termination/dissolution of marriage or that the marriage was dissolved by valid pronouncing of ''Talaq''. The fact that the revision petitioner has filed
the suit will itself show that the contention of the revision petitioner that the marriage stood dissolved was not accepted. In such circumstances
alone, the learned Chief Judicial Magistrate, Villupuram properly marshaled the evidence and came to the correct conclusion that the revision
petitioner had not proved the alleged dissolution of marriage so as to dis-entitle the first respondent to approach the Court u/s 125 of Code of
Criminal Procedure.
The judgment of the Supreme Court in the case Danial Latifi and Anr. v. Union of India reported in 2001 (7) Sup 297, which has been cited
by the learned Counsel for the revision petitioner itself contains clear observation to the effect that the attraction of Section 125 of Code of
Criminal Procedure stands ousted only in respect of divorced Muslim Woman. Even in respect of the divorced Muslim Woman, the right to claim
maintenance beyond the iddat period is not taken away. The mandate is that the husband should make a reasonable and fair provision for the
future of the divorced wife which obviously includes her maintenance as well. The fair and reasonable provision contemplated u/s 3(1)(a) of the
Act is not confined to the iddat period was the further observation by the Supreme Court in the said case. It was also made clear therein that
reasonable and fair provision of maintenance should be made within the iddat period failing which the divorced woman would get the rights
enumerated in Section 3 of the Act. We are not concerned with the same. The following are the observations made by the Apex Court in this
regard:
(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(1)(a) of the Act.
(2) Liability of Muslim husband to his divorced wife arising u/s 3(1)(a) of the Act to pay maintenance is not confined to iddat period.
In this case, a factual finding has been recorded to the effect that the marriage did not stand dissolve as contended by the revision petitioner.
Therefore application of the provisions of the above said Act shall be ruled out. As such the first respondent - wife can very well invoke Section
125 of the Cr.P.C. Yet another development after the pronouncement of the order of trial Court, has been brought to the notice of this Court
which this Court has to taken into consideration. The suit filed by the revision petitioner in O.S. No. 575 of 2004 on the file of District Munsif,
Villupuram, has ended against the revision petitioner and the same stands dismissed. Of course, learned Counsel for the revision petitioner, while
admitting that the said suit was dismissed by the trial Court, contends that an appeal has been filed and hence no sanctity could be attached to the
said decree passed by the trial Court till the disposal of the appeal. This Court is unable to accept the said contention raised by the learned
Counsel for the revision petitioner. When a competent Court has passed a decree, the same cannot be ignored unless and until, the same is either
stayed or set aside by an appellate Court. It is not the case of either party that the appellate Court has stayed the operation of the said decree.
Above all, after analysing the evidence adduced in this case a factual finding to the effect that the marriage has not been disclosed either by
operation of law or by pronouncement of ''Talaq'', has been recorded by the Court below, which cannot be termed either discrepant or infirm. As
indicated supra, there is no reason whatsoever to interfere with the said findings of the lower Court. Hence, the said finding has got to be confirmed
and accordingly confirmed.
No challenge has been made and the learned Counsel for the revision petitioner also has not advanced any argument regarding the quantum of
maintenance. Therefore, this Court comes to the conclusion that the quantum of maintenance awarded does not warrant any interference. There is
no merit in this criminal revision case and the same deserves to be dismissed. Accordingly, Criminal Revision Petition is dismissed. Consequently,
connected Crl.M.P. is also dismissed. No costs.