Smt. Farhana and Another vs Ateeque Khan

N.K. Mehrotra, J.—Heard Sri Dharmendra Singh, advocate for the revisionist and Sri Mohd. Sayeed, advocate for the opposite party on admission and final hearing.

This is a criminal revision u/s 397 of the Code of Criminal Procedure against the judgment and order dated 6.11.1999, passed by the I Ind Additional Sessions Judge, Unnao in Revision No. 28 of 1999, Ateeque Khan v. Smt. Farhana and Anr.

After hearing the learned Counsel for the parties and perusal of the record, it appears that the revisionist No. 1 Smt. Farhana moved a petition u/s 125 of the Code of Criminal Procedure alleging therein that she is married wife of the opposite party and the revisionist No. 2 Km. Azara is the daughter of both, the revisionist No. 1 and the opposite party. It was alleged that the revisionist No. 1 was cruelly treated on non-fulfilment of the demand of dowry and she was left in her matrimonial house and she is unable to maintain herself. It was also alleged that the opposite party is able to maintain her. Objections were filed by the opposite party-husband mainly on the ground that the divorce has taken place according to the Muslim Personal Law and, therefore, the revisionist No. 1-wife is not entitled to the maintenance u/s 125 of the Code of Criminal Procedure.

The revisionist No. 1 moved an application on 16.9.1998 and the opposite party filed an objection to this application. In this application, the revisionist No. 1 wife requested the trial court that the opposite party be directed to provide particulars about the date, month and year of the divorce and the place where the divorce was given and the names of the witnesses in whose presence the divorce was pronounced. The learned Magistrate after hearing the parties and after taking into consideration the application of the revisionist No. 1 wife and the objection of the opposite party held that no evidence to prove the alleged divorce has been filed and there is no bar in entertaining the petition filed on behalf of the Km. Azara, the daughter of the opposite party because it is admitted that Km. Azara, is the daughter of the opposite party. So far as the petition on behalf of the revisionist No. 1 is concerned, the trial court has held that since upto that stage no evidence in support of the alleged divorce was filed, the petition u/s 125 of the Code of Criminal Procedure filed by the revisionist No. 1 could be entertained. After recording these findings, the learned trial court disposed of the application of the revisionist and the objection of the opposite parties and fixed a date for recording evidence of the revisionist.

The aforesaid order of the learned Magistrate was challenged in Criminal Revision No. 28 of 1999. The revisional court held that Smt. Farhana, the revisionist had filed a Civil Suit No. 108 of 1998 for permanent prohibitory injunction restraining the opposite party from remarrying and in that case the opposite party has proved the date of divorce and has filed the deed of divorce. Therefore, the revisional court held that the petition u/s 125 of the Code of Criminal Procedure for the divorced-wife cannot be entertained. The revisional court set aside the order dated 20.1.1991 passed by the learned Magistrate. It is against this order passed in revision ; the instant revision has been filed in this Court by the revisionists.

It has been contended by the revisionist before this Court that the learned Sessions Judge has illegally set aside the entire order dated 20.1.1999, because the petition u/s 125 of the Code of Criminal Procedure on behalf of the revisionist No. 2 cannot be rejected on the ground that the revisionist No. 1 was a divorced wife. The revisionist No. 1 has further contended that the divorce was not proved and the divorce was disputed and it was challenged in Civil Suit No. 108 of 1998 by the revisionist and the revisional court without recording the finding that the divorce was valid in law has set aside the order of the learned Magistrate by which the revisionists were directed to adduce evidence in support of the petition u/s 125 of the Code of Criminal Procedure.

After hearing the parties'' counsel, I find that the order passed by the revisional court is illegal on two grounds ; firstly ; the order dated 20.1.1999, passed by the Magistrate in Case No. 444 of 1998 u/s 125 of the Code of Criminal Procedure is an interlocutory order by which he has simply directed the parties to adduce evidence and the stage to record a finding about the maintainability of the petition by a divorced wife had not arrived. The parties had not adduced any evidence to decide a fact whether a divorce has been taken place in accordance with law ; secondly, there was no valid reason for not entertaining the petition by the revisionist No. 1 alleging to be the wife and the revisionist No. 2 alleging to be the daughter of the opposite party. After perusal of the order passed by the two courts below, I am of the opinion that the learned Magistrate must record the finding on the following points:

(i) Whether the revisionist No. 1 has been divorced in accordance with law ;

(ii) Whether she is unable to maintain herself and the revisionist No. 2 ;

(iii) Whether the opposite party has sufficient means to maintain the revisionists (Petitioners) ;

(iv) Whether the opposite party neglects or refuses to maintain ;

(v) Whether in case the divorce is proved the wife-revisionist No. 1 is entitled to the maintenance u/s 125 of the Code of Criminal Procedure during ''Iddat period'' and after Iddat period''.

(vi) Whether the revisionist No. 2 being minor child is entitled to get maintenance from her father-opposite party ;

(vii) Whether the learned revisional court has correctly recorded the finding that the petition of the wife u/s 125 of the Code of Criminal Procedure after the knowledge of the divorce is not maintainable.

I am of the opinion that the finding on point No. (vii) aforesaid is not based on any reason and without discussing the provisions under Sections 125 - 128 of the Code of Criminal Procedure and the provisions under the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the judgment of the Supreme Court in Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, and Danial Latifi and Anr. v. Union of India 2001 (2) L CrR 584 (SC).

It has been argued before me by the learned Counsel for the opposite party that after the enforcement of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced woman is not entitled to move a petition u/s 125 of the Code of Criminal Procedure and, therefore, the finding recorded by the learned revisional court is in accordance with law. I find no force in this contention.

In Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, , before a five Judges Bench of the Supreme Court, the question for consideration was about the interpretation of Section 127(3)(b) of the Code of Criminal Procedure whether the fact, that Muslim woman had been divorced by her husband and paid her ''mahr'', would indemnify the husband from his obligation under the provisions of Section 125 of the Code of Criminal Procedure. The Supreme Court reiterated that the Code of Criminal Procedure controls the proceedings in such matters and overrides the rights under the personal law of the parties. If, there was a conflict between the terms of the Code and the rights and obligations of the individuals, the former would prevail. Five Judges'' Bench of Supreme Court concluded that the divorced women were entitled to apply for maintenance orders against their former husbands u/s 125 of the Code of Criminal Procedure and such applications were not barred u/s 127(3)(b) of the Code of Criminal Procedure. The Supreme Court after referring to various text book on Muslim Law has held that the divorced wife''s rights to maintenance ceased on expiration of "iddat" period but proceeded to observe that the general propositions reflected in those statements did not deal with the special situation where the divorced wife is unable to maintain herself. In such cases the Supreme Court concluded that these Aiyats (the Holy Quran, Chapter II, Suras 241-242) leave no doubt that the holy Quran imposes an obligation on the Muslim husband to make provisions for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teaching of the holy Quran. Since there was a big uproar after the judgment in Shah Bano''s case, the Parliament enacted Muslim Women (Protection of Rights on Divorce) Act, 1986. In the Statement of Objects and Reasons to the Bill, prepared for enactment, law laid down by the Supreme Court in Shah Bano''s case, was mentioned. It was mentioned in the Objects and Reasons that the opportunity has been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interest.

The object of enacting the aforesaid Act, as stated in the Statement of the Objects and Reasons to the Act, is that the Supreme Court in Shah Bano''s case, held that Muslim Law limits the husband''s liability to provide for maintenance of the divorced wife to the period of iddat, but it does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973 and, therefore, it cannot be said that the Muslim husband according to his personal law, is not under an obligation to provide maintenance beyond the period of iddat to his divorced wife who is unable to maintain herself.

As held in Shah Bano''s case, the true position is that if, the divorced wife is able to maintain herself, the husband''s liability to provide maintenance for her ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 of the Code of Criminal Procedure. Thus, it was held that there is no conflict between the provisions of Section 125 of the Code of Criminal Procedure and those of the Muslim Personal Law on the question of the Muslim husband''s obligation to provide maintenance to his divorced wife, who is unable to maintain herself.

Now I come to the decision of the Supreme Court in Danial Latifi and Anr. v. Union of India 2001 (2) L CrR 584 (SC), referred by the learned Counsel for the opposite party. In this case, the vires of the Muslim Women (Protection of Rights on Divorce) Act, 1986, was challenged. Again a Five Judges'' Bench of the Supreme Court upheld the validity of the Act and concluded as follows:

(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.

(3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after 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.

I may refer point No. 2 cited above in the conclusion of the Supreme Court judgment referred to by the opposite party in this revision. It lays down that the responsibility of the Muslim husband to his divorced wife arising u/s 3(1)(a) of the Act to pay maintenance is not confined to iddat period.

I find that there is no repealing clause in the Muslim Women (Protection of Rights on Divorce) Act, 1986, under which it may be said that the provisions of Sections 125 to 128 of the Code of Criminal Procedure are not applicable to the case of divorced Muslim woman claiming maintenance for her from her former husband.

Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, appears to be in addition to the provisions of Section 125 of the Code of Criminal Procedure. Section 5 of the same Act provides to the parties an option to be exercised if, a petition is filed u/s 4 of the said Act. Further these are the findings of the Five Judges'' Bench of the Supreme Court in Shah Bano''s case that there is no conflict between the provisions of Section 125 of the Code of Criminal Procedure and those of the Muslim personal law on the question of the Muslim husband''s obligation to provide maintenance to his divorced wife who is unable to maintain herself. Lastly, the object of enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986, is to provide maintenance to the Muslim divorced wife even after the period of iddat.

At the same time, I find that in view of the decision of the Supreme Court in Danial Latif and Anr. v. Union of India, 2001 (2) L CrR 584, a Muslim husband is liable to make reasonable and fair provision for future of the divorced wife including the maintenance for a period after iddat namely, within the iddat period.

Therefore, in view of the above legal position, the finding of the revisional court, that the petition by the revisionist No. 1 u/s 125 of the Code of Criminal Procedure is not entertainable, is set aside.

In view of the above, the revision is allowed. The impugned order dated 6.11.1999, passed in Revision No. 28 of 1999, Ateeque Khan v. Smt. Farhana and Anr. is set aside. The learned Magistrate is directed to decide the petition u/s 125 of the Code of Criminal Procedure filed by the revisionist No. 1 in view of the observations made in the body of this judgment expeditiously.

Let a copy of this judgment be sent to the Ist Additional Civil Judge (Junior Division)/Judicial Magistrate, Unnao, at once for compliance.