Molvi Shuayb Abdussatar Bhagliya vs Kubra and Others

Anant S. Dave, J.—The challenge in this application u/s 482 of the Code of Criminal Procedure, 1973 is against the orders passed by the court below by which the applicant is directed to pay maintenance to his wife and children.

Brief facts of the case are that, when respondent No. 1 filed Criminal Misc. Application No. 352 of 2007 u/s 125 of the Code of Criminal Procedure, 1973 (for short "the Code") before the learned Chief Judicial Magistrate, Godhra, the matrimonial life of the applicant with respondent No. 1 was of 10 years and out of the wedlock, two children were born, who are respondent Nos. 2 & 3 in this application. In view of matrimonial discord, a compromise was arrived at, but ultimately, respondent No. 1 was driven out on 02.05.2007 and thereafter `talaq'' was given as per Muslim Sharait Law. The above fact remained undisputed.

After considering relevant material on record, learned Chief Judicial Magistrate partially allowed the application of the respondent No. 1 and directed the applicant herein to pay monthly maintenance of Rs. 1,000/- to respondent No. 1 - wife and Rs. 750/- each to respondent Nos. 2 and 3.

Being aggrieved by above order dated 28.11.2008 passed by the learned CJM, the applicant preferred Criminal Revision Application No. 5 of 2009 u/s 397 of the Code. The learned Sessions Judge, Panchmahals, Godhra rejected the revision application and confirmed the order passed by the learned CJM. That the revisional Court also considered provisions of section 125 of the Code and Sections 3, 4 and 5 of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 (for short "Act, 1986") and concluded that divorced Muslim woman is entitled to receive maintenance u/s 125 of the Code, till she remarries.

The above orders passed by the courts below are in challenge in this application u/s 482 of the Code.

Mr. Kharadi, learned advocate for the applicant, submitted that Section 5 of the Act, 1986 gives option to the parties to be governed by provisions of Sections 125 to 128 of the Act 2 of 1974 and Section 5 of the Act, 1986 is clear that a divorced Muslim woman has to initiate proceedings under the Act, 1986 only. According to learned Counsel, the option can be availed on the first date of hearing of the proceedings filed under the Act, 1986 and, therefore, application u/s 125 of the Code is not maintainable. He lastly submitted that both the courts below have committed error of law and, therefore, impugned orders deserve to be quashed and set aside.

Mr. M.M. Tirmizi, learned advocate for the private respondents, submitted that contention raised by learned advocate for the applicant is no more res integra in view of the decision of the Apex Court in the case of Shabana Bano Vs. Imran Khan, wherein the Apex Court after considering the provisions of the Act, 1986 in juxtaposition to Section 125 of the Code, has finally held that divorced Muslim woman is entitled to receive maintenance u/s 125 of the Code even after the expiry of period of `Iddat'' as long as she does not marry.

Learned advocate for the private respondents also submits that in the above decision the Apex Court has dealt with powers exercised u/s 4 and also section 5 of the Act, 1986 along with Sections 125 to 128 of the Code.

Having heard learned Counsel for the parties, I am in agreement with submission made by learned advocate for the private respondents that law on the issue is no more res integra. The Apex Court in the case of Shabana Bano (supra) considering the case of Danial Latifi and Another Vs. Union of India, in para 24 has held as under:

Para-24. In our opinion, the point stands settled by judgment of this Court reported in Danial Latifi and Another Vs. Union of India, titled Danial Latifi and Anr. v. Union of India pronounced by a Constitution Bench of this Court. Para 30, 31, and 32 thereof fully establish the said right of the appellant. The said paragraphs are reproduced hereinunder:

A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.

Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate u/s 125 CrPC would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional.

As on the date the Act came into force the law applicable to Muslim divorced women is as declared by this Court in Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, In this case to find out the personal law of Muslims with regard to divorced women''s rights, the starting point should be Shah Bano''s case and not the original texts or any other material - all the more so when varying versions as to the authenticity of the source are shown to exist. Hence, we have refrained from referring to them in detail. That declaration was made after considering the Holy Quran, and other commentaries or other texts. When a Constitution Bench of this Court analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant textual material, we do not think, it is open for us to re-examine that position and delve into a research to reach another conclusion. We respectfully abide by what has been stated therein. All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this Court in Shah Bano''s case without mutilating its underlying ratio. We have carefully analysed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Bano''s case. The learned Solicitor General contended that what has been stated in the Objects and Reasons in Bill leading to the Act is a fact and that we should presume to be correct. We have analysed the facts and the law in Shah Bano''s case and proceeded to find out the impact of the same on the Act. If the language of the Act is as we have stated, the mere fact that the Legislature took note of certain facts in enacting the law will not be of much materiality.

The Apex Court in the case of Shabana Bano (supra), after considering the judgment in the case of Iqbal Bano Vs. State of U.P. and Another, in paras 29 and 30 held as under:

Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi (supra) and Iqbal Bano (supra) would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit there of must accrue to the divorced Muslim women.

In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband u/s 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry.

In view of the above, the contention of learned advocate for the applicant, that unless the option is availed on the first date of hearing of the proceedings filed under the Act, 1986, any proceedings by divorced Muslim woman of invoking provision of Section 125 of the Code are not maintainable, cannot be accepted.

In the result, this application fails and is hereby rejected.

Notice discharged. Interim relief, if any, stands vacated forthwith.