Smt. Shabana Bano vs Imran Khan

Brij Mohan Gupta, J.

Feeling aggrieved with an order dated 11-3-2008 passed by Additional Principal Judge of Family Court, Gwalior in Miscellaneous Criminal Case No. 286/2006, this revision has been preferred by the petitioner/wife against the respondent/husband.

The facts of the case in brief arc that the petitioner filed one application u/s 125 of Cr.PC on 26-4-2004 against the respondent alleging therein that she has been married with the respondent on 26-11 -2001 in Gwalior. At the time of marriage, necessary items for the use of family were given by her father, as per the list enclosed (Annexure A-2). After marriage, respondent and his family members played cruelty on her on demand of dowry. At the time when she was pregnant she was left by the respondent at her parental home with a threat that unless the demand about the dowry is fulfilled she will remain in the parental home. There is no source of income of the petitioner while respondent is earning Rs. 12,000/- per month, hence, an amount of Rs. 3,000/- per month as maintenance is to be ordered in favour of her to be paid by the respondent.

3-A. On 27-7-2005 the respondent gave his appearance in the Court below and filed his reply on 16-8-2005. As per the reply of the respondent he admitted the fact of marriage, but denied the gifts given in the marriage and also the alleged cruelty. It is submitted by him that the petitioner left his house on 30-11 -2003 with all the ornaments and Rs. 1,000/- on the ground that- ''she has to attend marriage''. Despite notices dated 5-2-2004 and 29-3-2004 and thereafter filing of the application (Case No. 8/2004) for restitution of conjugal rights, the petitioner did not come to live with him. On 15-6-2004 during proceeding of the Case No. 8/2004 when petitioner put false allegations and refused to live with the respondent, he gave divorce to her while uttering the word ''talaq'' three times. He has denied his income as alleged and has mentioned that he is dependent on other persons. It is mentioned by him that the petitioner is earning Rs. 6,000/- per month by doing tuition. The respondent has given divorce in writing on 20-8-2004 and thereafter as per the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 (''the Act'' in short), this application is not maintainable.

3-B. On the same date, on which the reply was filed, i.e., 16-8-2005, one application under Order 7 Rule 11 of CPC was also filed enclosing a divorce deed dated 20-8-04 praying therein that on the basis of divorce, the application for maintenance be dismissed. But, vide order dated 30-9-2005, it was directed that, the point will be decided after taking evidence.

Vide impugned order, the learned Judge has observed in Para 29 that the petitioner is unable to maintain herself and in Para 28, it is observed that the respondent is having sufficient means and can maintain the petitioner for the period of Iddat. It is also observed in Para 26 that on 20-8-2004 divorce has been given by the respondent to the petitioner and thereafter as per the provisions of the Act, she is not entitled to claim maintenance beyond the period of Iddat. The application was partly allowed for the period of Iddat directing that Rs. 2,000/- per month to be paid by the respondent to the petitioner for that period. Being unsatisfied this revision by the petitioner.

During the course of arguments, as agreed to by both the parties, the following questions for determination by this Court have been framed:

(a) From which date the divorce will be deemed to be operative.

(b) Whether after the period of lddat, a divorced Muslim wife, the petitioner herein, can claim maintenance for herself and her child from her former husband.

(c) If yes, then under what provision.

(d) The liability of the respondent towards the petitioner in this case after the period of Iddat.

The factum of divorce as alleged on behalf of the respondent, has not been countered on behalf of the petitioner during the course of arguments. Hence, there appears no dispute on this point. The dispute between the parties is that whether the date of divorce is 20th August, 2004 as per the deed of divorce (Exh. NA 4), as submitted on behalf of the respondent or it is 6th December, 2006 as has been submitted on behalf of the petitioner when the same has been proved in the evidence. The above deed of divorce has not been disputed, but only because it is proved on 6th December, 2006, on this ground, the petitioner''s claim is that the date of divorce will be 6th December, 2006. In support, he has drawn attention at Para 16 of the judgment of Apex Court in the case of Shamim Ara Vs. State of U.P. and Another, , which goes as under:

We are also of the opinion that the talaq to be effective has to be pronounced. The term ''pronounce'' means to proclaim, to utter formally, to utter rhetorically, to declare, to utter, to articulate (See Chambers 20th Century Dictionary, New Edition, p. 1030). There is no proof of talaq having taken place on 11-7-1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5-12-1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effecting talaq on the date of delivery of the copy of the written statement to the wife. The respondent No. 2 ought to have adduced evidence and proved the pronouncement of talaq on 11-7-1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed ....

(Emphasis supplied)

Upon perusal of the above quoted observations of the Apex Court, the proof of the divorce is required. It is not observed that from the date of proof, the divorce will be treated to be effective. Hence, in this case, if the learned Judge has observed that the petitioner has been divorced by the respondent on 20th August, 2004, on the basis of the aforementioned divorce deed, no error appears therein.

7-A. With regard to the second and third points, a Constitution Bench of the Apex Court in Danial Latifi and Another Vs. Union of India, , while hearing the petition challenging the vires of the Act and observing that it is not ultra vires, has interpreted the scope of Section 3 of the Act. Upon considering in detail the Hon''ble Court in Para 36 has summed up its conclusion as under:

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 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.

(Emphasis supplied)

Sub-paragraphs 1 and 2 give interpretation of Section 3(1)(a) of the Act while sub-para 3 gives interpretation of Section 4 of the Act. It is observed that even after divorce and the period of Iddat, the former husband is not exonerated from his liability of making reasonable and fair provision for the future of the divorced wife and also for her maintenance. But these provisions are to be made by husband within the period of Iddat. This liability of former husband has been considered under the Act itself and not beyond that including u/s 125 of Cr.PC. This view of the Apex Court has further been followed in another pronouncement in Sabra Shamim v. Maqsood Ansari (2004) 9 SCC 616.

7-B. Thus, now it is settled that the 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 Iddat period only. He has to make reasonable and fair provision for future of the divorced wife, which obviously includes her maintenance as well. It is obligatory for the husband to make these provisions within the period of Iddat. After divorce that liability of the Muslim husband is u/s 3 of the Act and not u/s 125 of the Cr.PC. Accordingly, these two questions are decided.

8-A. With regard to fourth point, the learned Counsel for the respondent relied upon the judgment in the case of Munni alias Mubarik Vs. Shahbaz Khan, , Julekha Bi and Another Vs. Mohammad Fazal, , and Mohammed Juber Adil Vs. Smt. Taj Nazar, , and has submitted that in these cases it is observed by different Benches of this Court that after divorce and coming into force of the Act, application u/s 125 of Cr.PC is not maintainable. It is true that after divorce, a claim u/s 125 of Cr.PC cannot be maintained by a divorced Muslim wife, but in the light of the aforementioned observations in the case of Danial Latifi (supra), it cannot be accepted that Muslim husband is totally exonerated after giving divorce to his wife. As observed in the aforementioned judgment of the Apex Court, the liability 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 only. He has to make reasonable and fair provisions within the period of Iddat for the future of the divorced wife, i.e., even for post Iddat period also, which obviously includes her maintenance as well. Hence the contention of Shri Gauri that after the divorce, the respondent is not responsible for the maintenance of his wife, cannot be sustained.

8-B. Vide revision petition, impugned order has been assailed on the ground that the learned Judge has committed an error by refusing the future maintenance after the period of Iddat to the petitioner u/s 125 of Cr.PC. This claim of the petitioner being erroneous in the light of the decision of the Apex Court in the case of Danial Latifi (supra). After the period of divorce, i.e., 20th August, 2004, in this case the petitioner is not entitled for maintenance u/s 125 of Cr.PC. As observed in the case of Noor Saba Khatoon Vs. Mohd. Quasim, , for the child, she can file maintenance petition u/s 125 of the Cr.PC in the Competent Court, but unfortunately in the present application, no maintenance has been claimed for the child. If deemed fit, she can separately file a claim for the maintenance of the child u/s 125 of Cr.PC, but so far as her rights are concerned, after the date of divorce, she cannot claim maintenance u/s 125, Cr.PC, but her rights for reasonable and fair provisions and maintenance for future are saved u/s 3 of the Act. For the sake of repetition, the respondent has to make reasonable and fair provision for the future of the petitioner including maintenance even for the period after the date of Iddat, but before she gets remarried. The respondent is obliged to make these provisions for her future maintenance before the expiry of the period of Iddat. In case he does not make arrangements, Court can direct him to make reasonable provisions and if the respondent fails to comply the direction, coercive steps under Sub-section (4) of Section 3 of the Act, can be taken against him. Thus, this fourth point is disposed of.

9-A. Now the next controversy between both the parties is that for such provision, whether separate application is required or in the same application filed u/s 125 of Cr.PC, right of the divorced wife u/s 3 of the Act can be considered ? This dispute has been decided by the Hon''ble Apex Court in its recent judgment having more or less similar facts in Iqbal Bano Vs. State of U.P. and Another, . In this case, an application u/s 125 was filed by the appellant wife on 21st February, 1992. On 28th May, 1992, written statement was filed by the respondent husband stating therein that long back he has divorced his wife by addressing "Talaq, Talaq, Talaq". It was further stated that there was severance of marital ties between them for years as the divorce was over by the utterance of the word "talaq" thrice and he had also paid mehr and as the iddat period was over the claim was not acceptable. Learned Magistrate negated the factum of divorce and allowed application for maintenance. In revision, the learned Additional Sessions Judge accepted the plea of divorce and held that after coming into force of the Act, petition u/s 125 of Cr.PC filed by the Muslim wife is not maintainable. The High Court upheld the order of learned ASJ. When the matter went before the Apex Court in Paras 7 and 10, following has been observed:

The view expressed by the First Revisional Court that no Muslim woman can maintain petition u/s 125, Cr.PC is clearly unsustainable. The act only applies to divorced women and not to a woman who is not divorced....

Proceedings u/s 125, Cr.PC are civil in nature. Even if the Court noticed that there was a divorced woman in the case in question, it was open to it to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings u/s 125, Cr.PC and claims made under the Act are tried by the same Court....

Thus, it appears that Muslim wife can file an application u/s 125 of Cr.PC for maintenance against the husband. If the claim of the husband about divorcing the wife is accepted, then after the date of divorce, the rights of the petitioner wife can be considered by the learned Magistrate in the same petition if petition/application under both the provisions is to be filed before the Magistrate and in that case the learned Magistrate can decide the rights of the divorced wife on the basis of provisions of the Act. Thus, filing of a new application by the applicant under the provisions of the Act is not required if her rights can be ascertained by the same Court in the same petition, but in the present case the application u/s 125 of Cr.PC was not filed before a Magistrate, instead it was filed and decided by Additional Principal Judge of Family Court, Gwalior. Hence, now it is to be seen, as to whether the Family Court is having jurisdiction to decide this matter related to the maintenance or not?

9-B. The relevant part of the relevant provisions of the Family Courts Act, 1984 (hereinafter referred to as ''the Act of 1984'') are available in Sections 7 and 8 of this Act, which are as under:

Jurisdiction.- (1) Subject to the other provisions of this Act, a Family Court shall-

(a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a District Court or, as the case may be, such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends.

Explanation:- The suits and proceedings referred to in this Sub-section are suits and proceedings of the following nature, namely:

(f) a suit or proceeding for maintenance;

(g) *** *** ***

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-

(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment.

Exclusion of jurisdiction and pending proceedings.- Where a Family Court has been established for any area,-

(a) no District Court or any subordinate Civil Court referred to in Sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that Sub-section;

(b) no Magistrate shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974);

(c) *** *** ***"

9-C. While drawing attention at these provisions, the contention of Shri Naqvi on behalf of the petitioner is that Family Court is having jurisdiction to decide a dispute/application under Sections 3 and 4 of the Act. Except drawing attention at these provisions, he could not cite any judgment.

9-D. Shri Gauri, the learned Advocate for the respondent does not counter the aforesaid submissions of Shri Naqvi.

9-E. However, upon perusal of these provisions, a different situation appears. Although clause (f) of Explanation of Sub-section (1) of Section 7 provides that a suit or proceeding for maintenance will be heard by Family Court, yet upon perusal of Section 7(1)(a) of the Act of 1984, it appears that the cases mentioned in clause (f) are required to be heard by a District Court or any subordinate Civil Court. Admittedly, the cases arising out of Sections 3 and 4 of the Act are to be heard by a Magistrate and not by a District Court or any other subordinate Civil Court. The Court of Magistrate cannot be said to be a subordinate Civil Court, hence the term mentioned in clause (f) (supra)- ''on a suit or proceeding for maintenance''- relates with the jurisdiction of a District Court and of a subordinate Civil Court. It does not relate with the Court of a Magistrate. This observation gets further support from Sub-section (2) of Section 7 of the Act of 1984. It provides that a Family Court shall also have and exercise- (a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure, 1973. Enacting subsection (2) also supports the aforementioned observation. In clause (b) of Sub-section (2), it is further provided that a Family Court shall also have and exercise, such other jurisdiction as may be conferred on it by any other enactment. By enacting this general provision, the intention of Legislature is very clear, that unless by the provisions of any other enactment no jurisdiction has been conferred to the Family Court, the cases arising from such other enactment will not be heard by the Family Court. The Act is another enactment, which has been enacted after two years of the Act of 1984. Had there been any intention of the Legislature to provide jurisdiction to the Family Court over Sections 3 and 4 of this Act, in addition to the word ''Magistrate'', the words- ''or the Family Court as the case may be'' would have also been inserted. By not inserting such words or not separately providing in the Act, it appears that the cases under Sections 3 and 4 of the Act are required to be decided by a Magistrate alone and not by the Family Court. It is true that the dispute and the case in hand is a family dispute and relates with the maintenance. In principle such disputes are to be heard and decided by the Family Courts, but unless the law provides, it cannot be concluded that only being a family dispute and related to the maintenance, it is to be heard by the Family Court. In my considered view, in this regard, the law framers are to make necessary provisions, so that such types of family disputes can also be heard by the Family Courts. However, for the present, in absence of such provisions, present case cannot be remanded to the Family Court for concluding the rights of the petitioner under Sections 3 and 4 of the Act, as the same has no jurisdiction to hear and decide such dispute under Sections 3 and 4 of the Act.

Upon perusal of the revision petition, the prayer clause goes as under:

It is, therefore, most humbly prayed that this Hon''ble Court be pleased to accept this revision petition and set aside the order of learned Court below and directions may be issued to grant the maintenance to the petitioner as per the provisions of Section 125 of Cr.PC.

As observed herein above, after divorce maintenance cannot be claimed by a divorced Muslim wife u/s 125 of Cr.PC. Hence this prayer cannot be allowed. It is true that the petitioner''s claim for fair and reasonable provision for future and maintenance is still surviving as observed by the Apex Court in the case of Danial Latifi (supra). It is also true that had impugned order been passed by a Magistrate, the case would have been remanded for deciding the rights of the petitioner under Sections 3 and 4 of the Act, as observed by the Apex Court in the case of Iqbal Bano (supra), but as observed herein above, the impugned order has not been passed by a Magistrate, but instead it has been passed by Family Court, which has no jurisdiction to hear the dispute under Sections 3 and 4 of the Act. Hence, the case cannot be remanded. In these circumstances, liberty can be given to the petitioner to file an application under Sections 3 and 4 of the Act before the Court of Competent Magistrate, if so chooses by her. As such, looking to the provisions of both the Acts, unanimous submission of the learned Advocates of both the parties cannot be sustained that the dispute arising under Sections 3 and 4 of the Act can also be heard and decided by a Family Court.

Consequently, the revision is dismissed.