Mohamed Hanif vs Saleema and Others

Maheswaran, J.—This revision petition is filed against the order of the learned Sub Divisional Judicial Magistrate, Poonamallee, made under

S. 125, Crl. P.C. in M.C. No. 447 of 1976. The relevant facts need narration.

Tmt. Saleema the 1st respondent herein instituted an application under S. 125, Crl. P.C. before the Court of the Sub Divisional Judicial

Magistrate of Poonamallee. She alleged that she is the legally wedded wife of the petitioner and that respondents 2 to 5 were born to her through

the revision petitioner, that she had been living and residing with the revision petitioner for a period of six years ever since the time of marriage, that

the revision petitioner developed intimacy with one Mangalaram and has married the said Mangalaram during the month of June, 1969, that the

revision petitioner has failed to take care of her, that she then wrote to her husband, who was transferred to Kozhikode, to take her and maintain

her but the revision petitioner replied saying that he has already pronounced talaaq and had divorced her long back that she will not be entitled to

maintenance. She further alleged that the revision petitioner is earning a sum of Rs. 1,200/- and is in possession of two houses worth Rs. 75,000/-

that she requires Rs. 200/- for herself and Rs. 300/- for her children at the rate of Rs. 75/- per child.

The revision petitioner resisted the application on the ground that he had pronounced an irrevocable talaaq by a registered letter, dt. 6th March

1974 addressed to the first respondent, which has been refused, that the first respondent was later informed by the Muthavalli of Kambam

Mosque that she had been divorced by the revision petitioner and that the talaaq is complete and irrevocable. The revision petitioner further alleged

in his counter affidavit that the first respondent had returned the Mahar amount and also the Iddat amount and therefore, the first respondent is not

entitled to claim any maintenance. The revision petitioner also denied the other allegations in the petition. He has admitted that the woman referred

to by the 1st petitioner is no other than the wife of the respondent whom he married on 11th June 1969 according to Islamic rites. He finally

contended that his salary is not Rs. 1,200/- as alleged by the first respondent, that he gets only a sum of Rs. 600/- after all deductions, that he is

willing to maintain his children and that, in any event, the amount claimed is exhorbitant.

The learned Sub Divisional Judicial Magistrate was of the view that the first respondent, though a divorced wife, was entitled to claim

maintenance by reason of Explanation (1) to S. 125 of the Code of Criminal Procedure and in the end awarded a maintenance of Rs. 75/- to the

first respondent and Rs. 60/- each to the other respondents.

Aggrieved, the revision petitioner has now come up with this revision case.

Two points are raised before me by the learned counsel appearing for the revision petitioner. The first is that the first respondent has been

divorced by her husband long prior to her filing of the petition and therefore, the divorced wife cannot claim Maintenance and the second is that S.

127(3), Crl. P.C. controls the provisions of S. 125, Crl. P.C. and therefore, the powers of the Magistrate will be restricted in the matter of

entertaining an application for maintenance at the instance of a divorced wife in whose case the condition under S. 127(3)(b) the Criminal

Procedure Code has been complied with.

Before I advert to deal with these points, I must point out that we are dealing with a case of a divorced wife who is governed by her own

personal law, namely the Mohammedan Law. It is not disputed that the first respondent has been divorced. In paragraph 10 of the judgment, the

learned Magistrate has observed ''the records produced by the respondent (revision petitioner herein) will clearly reveal that he has effected a

divorce on the alleged date.'' In such circumstances the contention of the 1st petitioner (the first respondent herein) that she was not aware about

the divorce and that the respondent hat not effected any divorce cannot be accepted as true. I accept this finding and see no reason to interfere

with the same.

The question now is whether a divorced wife can maintain an application under S. 128 of the new Code. S. 125 so far as it is material for the

purpose of this case can be extracted.

125 (1). If any person hating sufficient means neglects or refuses to maintain (aJ his wife, unable to maintain herself, or.....a Magistrate of the first

class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance 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....

EXPLANATION: For the purposes of this Chapter.-

(b) ''wife'' includes a woman who has been divorced by or has obtained divorce from her husband and has not re-married.

The first contention presents no difficulty and it need not detain us any longer in view of'' the explanation (b) to S. 125 in which ''wife'' has been

defined to include a woman who has been divorced by, or has obtained a divorce from her husband and has not been re-married. In the instant

case, it is not disputed that the, first respondent has not remarried. Therefore, considering the provisions of S. 125 of the new code, her right to

apply for maintenance under S. 125 cannot be disputed, because her right to apply under S. 125 will come to an end only when the divorced wife

remarries.

The learned counsel appearing for the revision petitioner raises another question of attractive importance and that is, that S. 127(3)(b) clearly

controls S. 125 of the Criminal Procedure Code and the Magistrate will not have jurisdiction to entertain an application under S. 125, if the

provision under S. 127(3)(b) has been complied with. We may BOW refer to the provisions under S. 127 of the new Code. Sub-S. (3) to S. 127

reads as follows:

(3) Where any order has been made under S. 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband,

the Magistrate shall, if he is satisfied that-

(a) the woman has, after the date of such divorce remarried, cancel such order as from the date of her remarriage;

(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) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce,

cancel the order from the date thereof.

A reading of S. 127(3) of the new code, will show that the provision of CI, (b) of sub-S.(3) is a provision in which a clear reference is found to the

customary or personal law of the divorced wife. It is not disputed that the amount which is payable to a divorced wife governed by Mohammedan

personal law is the Mahar amount and amount of maintenance during the period of Iddat. Cl,(b) deals with a case where a wife has been divorced

by her husband and has received before or after the order under S. 125 the whole of the sum which under any customary or personal law

applicable, to the parties was payable on such divorce. There is clear provision that where the sum due under the customary or personal law

applicable to the parties is received before the date of the order under S. 125, it is obligatory on the Magistrate to cancel the order and sub-S.

3(b)(1) shows that the cancellation takes effect from the date on which the order under S. 125 was made. A reading of this Section very clearly

shows that when once the Magistrate satisfies himself about the payment of the Mahar amount and the maintenance amount during the period of

Aft/or the Magistrate, in my view, will have no discretion, but to cancel the order made under S. 125. S. 127(3)(b)(ii) deals with ether cases where

the amount which a woman is entitled to get under her customary or personal law is paid after the order under S. 125. Even in such a case, the

Magistrate will have no discretion but to cancel the order. It is contended for the respondent that S. 127(3) begins with the words ""where any

order has been made under S. 125 in favour of a woman who has been divorced...""and therefore, the provision under S. 127(3)(b) will apply in a

case where an order under S. 125 has been made and consequently, the Magistrate cannot refuse to entertain an application under S. 125 and

grant maintenance to her. No doubt, S. 127(3)(b) refers to S. 125. But, it is difficult to understand as to how the Magistrate can proceed with an

application under S. 125, if it is proved to the satisfaction of the Magistrate that the whole of the sum, which the woman under any customary or

personal law applicable to her is entitled to on such divorce, has been paid. In my view, Ss. 125 and 127(3)(b) should be harmoniously construed.

There will be only multiplicity of proceedings, if the Magistrate makes an order earlier under S. 125 and then proceed to hold an enquiry under S.

127 on a petition by the husband or cancelling the order earlier made under S. 125 on proof of the fact that the husband had paid the sum which

the wife is entitled to get under customary or personal law at the time of divorce, if that proof could be adduced in the enquiry under S. 125. 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 Muslim wife. la this case, the, revision petitioner had clearly stated in his counter

that Mahar amount of Rs. 850 fixed at the time of marriage was sent by money order on 1st July 1974 and that has been refused by the first

respondent and that the lddat amount of Rs. 150/- offered by the respondent was also refused by the first petitioner and that she is not entitled to

claim any maintenance.

In my view, if the husband, adduces evidence in the enquiry under S. 125 that he has already paid what was due to her under personal law, the

Magistrate is bound to'' consider that and if the husband'' is able to satisfy the Magistrate that he has paid to the (sic) wife what Was required to be

paid to the under the personal law, the Magistrate can not still proceed under S. 125 and grant maintenance. This view of mine finds support in the

ruling in Smt. Bukhsana Parvin v. Shaikh Mohamed 176 Bom.L.R. 123 . The learned Judges who decided that case observed as follows:

We are, therefore, inclined to take the view that in case where the husband satisfies the Magistrate in a proceeding under S. 125 of the new Code

that he has complied with the requirements of S. 127(3)(b) the (sic) does not have any subsisting right of (sic) regard to the provisions of S. 127(3)

(b)(sic) Magistrate will have no jurisdiction in such a Case to make an order under S. 125 of the new code.

As earlier pointed out, the revision petitioner has raised the plea that he has sent the amount which was due to the first respondent under the

personal law and that she refused to receive the same. This aspect of the case has not been adverted to by the learned Magistrate. The failure of

the Magistrate to refer to this question of law which depends to some extent on the question of fact will be, in my view, a material omission and the

High Court will be justified in interfering in revision. The revision is therefore allowed in part. The order granting maintenance to first respondent

alone is set aside and the Magistrate will hold an enquiry in respect of this contention raised by the revision made in this judgment. The order

granting maintenance to respondents 2 to 5 will stand and the revision, so far as they are concerned, is dismissed.