Shanvaz Bengum and others vs D. Ahammad Sab and another

Gopala Krishna Tamada, J.—On an earlier occasion when the matter is listed on 21.4.2010, as the petitioner has not evinced any interest in prosecuting the matter, the criminal petition was dismissed. Now the present petition i.e. Crl. PMP No. 7109 of 2010 is filed to recall the said order and as such the matter is listed today under the caption ''for being mentioned''. The first petitioner filed affidavit stating various reasons for their nonappearance on 21.4.2010 and this Court is satisfied with the said reasons. Hence Crl. MP No. 7109 of 2010 is ordered and the order dated 21.4.2010 is recalled.

The facts in brief are that the petitioner herein who is the wife of the first respondent herein along with her children approached the trial Court and filed MC No. 5 of 2003 u/s 125 of Cr. PC claiming maintenance at the rate of Rs. 1,000/ - each. The husband i.e., the first respondent herein contested the same stating that there was divorce between the first petitioner i.e., the wife and himself and as such the wife is not entitled to the maintenance. The Court below while awarding maintenance to the first petitioner and her children at the rate of Rs. 500/- p.m., however, restricted the said payment amount of maintenance for a period of three months only i.e., for the iddat period insofar as the first petitioner is concerned. The wife approached the appellate Court i.e., learned Sessions Judge at Anantapur and filed Crl. RP No. 55 of 2005 and the learned Sessions Judge by his order dated 28.9.2006 confirmed the said order. The same is questioned by filing this petition u/s 482 Cr. PC.

The main contention of the learned Counsel for the petitioners is that the first petitioner i.e., wife though is divorced, is entitled to maintenance for life provided she is not remarried. In this context he placed reliance on the judgment of the apex Court in Danial Latifi and another v. Union of India, 2001 (6) ALD 63 (SC) : (2001) SCC 740.

Per contra, the learned Counsel for the respondent - husband placed reliance on the judgment of a Full Bench of this Court in K. Mangamma and Others Vs. M. Venkateswarlu and Others,

In the light of the said submissions made by both the Counsel, this Court looked into the judgment passed by the Supreme Court wherein a Five Judge Bench dealing with this issue i.e., as to whether a Muslim wife is entitled for maintenance on par with other divorced wives, after discussing various aspects under the Muslim Law has held as follows:

While upholding the validity of the Act, we may sum up our conclusions

(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 a Muslim husband to his divorced wife arising u/s 3(1)(a) of the Act to pay maintenance is not confined to the iddat period.

(3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided u/s 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim Law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

(4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

It is true that a Full Bench of this Court in Osman Khan Brahamani''s case (supra), has taken a view that the maintenance shall be restricted to iddat period only and in fact the Courts below have relied on the said judgment and restricted the said payment of maintenance amount of Rs. 500/- to the first petitioner herein only for the iddat period. In fact, in Danial Latifi''s case (supra), the Supreme Court held as follows:

Thus preponderance of judicial opinion is in favour of what we have concluded in the interpretation of Section 3 of the Act. The decisions of the High Courts referred to herein that are contrary to our decision stand overruled.

In the light of the said finding, this Court is of the view that the said judgment of the Full Bench of our High Court is overruled and a Muslim wife is entitled for maintenance from her husband and the same shall not be restricted to iddat period.

As it is the contention of the learned Counsel for the petitioner that the petitioner is not remarried and the same is not rebutted, it shall be held that the wife i.e., petitioner is not yet remarried and in the light of the said judgment of the apex Court she is entitled for maintenance from her husband.

Accordingly, this Court exercises the inherent power vested in it u/s 482 of Cr. PC and sets aside the said orders passed by the Courts below insofar as the finding that the petitioner is entitled for maintenance during the iddat period only and directs the respondent-husband to pay maintenance at the rate of Rs. 500/- to the petitioner herein also during her lifetime provided she does not remarry.

This petition is accordingly allowed.