Smti. Hasina Begum VsMd. Humayun Miah

Deepak Gupta, C.J.—The short but interesting question which arises in this petition, is whether a divorced Muslim wife is entitled to maintenance u/s 125 Cr.P.C. after the period of iddat is over. To appreciate the contentions raised by the petitioner wife, it would be pertinent to mention that on 02.11.1993 the petitioner wife filed a petition u/s 125 Cr.P.C. before the learned Judicial Magistrate, 1st class, Agartala and on 02.11.1993 the learned Judicial Magistrate directed the respondent husband to pay maintenance to his wife @ Rs. 800/- per month. In December 1999 the petitioner wife filed an application for enhancement of the maintenance allowance and the Judicial Magistrate, 1st class, Agartala by his order dated 10.04.2000 enhanced the amount to Rs. 1,000/- per month.

The husband aggrieved by the order of enhancement filed a criminal revision petition before the learned Additional Sessions Judge, West Tripura, Agartala, who by his order dated 22.08.2001 upheld the enhancement of maintenance allowance so far as the two minor children were concerned but held that the wife was not entitled to maintenance since according to the husband he had divorced her by executing a Talaknama on 23.04.1996 and the Talaknama would be effective from the date of its communication i.e. the date of filing of the written objection in this case. The Revisional Court, however, held that the wife could claim maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986, hereinafter referred to as the Act. He remanded the case to the learned Magistrate to assess the maintenance payable to the wife in terms of the said act.

The learned Judicial Magistrate, 1st class after enquiry vide his order dated 21.01.2004 directed the husband to pay Rs. 500/- per month as expenses for residential accommodation of the petitioner and an equal amount of Rs. 500/- per month for maintenance of her social and religious obligations. This order was again challenged by the husband the Additional Sessions Judge who vide his judgment dated 27.01.2007 held that since the petitioner was divorced and since she was admittedly a Muslim, she was not entitled to maintenance beyond the iddat period. It is this order which is under challenge before me.

A constitutional bench of the Apex court in Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, , after discussing the entire law on the subject and also dealing with the Personal Muslim Law held that a Muslim woman was entitled to maintenance u/s 125 Cr.P.C. The relevant portion of the judgment reads as follows:

...We have attempted to show that taking the language of the statute as one finds it, there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance u/s 125 and that, Mahr is not a sum which, under the Muslim Personal Law, is payable on divorce.

Shah Bano Begum''s case, as this case is popularly known as, led to the Parliament intervening and passing the Muslim Women (Protection of Rights on Divorce) Act, 1986. In the introduction to the Act, it was stated that in Shah Bano Begum''s case it was held that if a Muslim divorced woman is able to maintain herself, the husband''s liability ceases after the expiry of the period of iddat but if she is unable to maintain herself even after the period of iddat she is entitled to have the recourse u/s 125 Cr.P.C. It was to dilute the judgment that this Act was passed by the parliament.

The constitutional validity of this Act was challenged in Danial Latifi and Another Vs. Union of India, . A Constitution Bench of the Apex Court upheld the Constitutional validity of the Act but summed up its conclusions in the following manner,-

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 iddad 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.

Therefore, what the Apex court held was that a Muslim husband was liable to maintain his wife who had not remarried and was unable to maintain herself even after the period of iddat was over and he was duty bound to make a reasonable and fair provision for the maintenance of the divorced wife even after the period of iddat. The Apex court specifically held that the liability of the Muslim husband to his divorced wife does not cease on the completion of the iddat period. It was also held that the divorced Muslim women who were not re-married or who were not unable to maintain themselves after the iddat period could proceed to get maintenance u/s 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 from the husband or his relatives. Therefore, though the constitutional validity of the Act was upheld, the Apex court also clearly held that the Muslim husband was liable to provide reasonable maintenance towards his divorced wife even after the iddat period was over. In this judgment nowhere was it said that Section 125 Cr.P.C. will not apply to a Muslim wife.

In case there was any doubt left after Danial Latifi''s case, the matter was set at rest by judgment of the Apex Court in Iqbal Bano Vs. State of U.P. and Another, wherein the Apex court held,-

Proceedings u/s 125 Cr.P.C. 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.P.C. and claims made under the Act are tried by the same court.

In Shabana Bano Vs. Imran Khan, the Apex court formulated the following question of law

The basic and foremost question that arises for consideration is whether a Muslim divorced wife would be entitled to receive the amount of maintenance from her divorced husband u/s 125 Cr.P.C. and, if yes, then through which forum.

Thereafter, after discussing the provision of the Muslim Act, the Family Court''s Act and the Code of Criminal Procedure, the Apex court held that the divorced Muslim wife''s petition u/s 125 Cr.P.C. would be maintainable before the Family Court as long as the wife does not re-marry. It was further held that the amount of interest to be awarded u/s 125 Cr.P.C. cannot be restricted for the iddat period only. In this behalf reference may be made to the following portion of the judgment of the Apex court,-

The appellant''s petition u/s 125 Cr.P.C. would be maintainable before the Family Court as long as the appellant does not remarry. The amount of maintenance to be awarded u/s 125 Cr.P.C. cannot be restricted for the iddat period only.

The learned Single Judge appeared to be little confused with regard to different provisions of the Muslim Act, the Family Act and Cr.P.C. and thus was wholly unjustified in rejecting the appellant''s revision.

Cumulative reading of the relevant portions of the judgments of this Court in Danial Latifi and Iqbal Bano 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 thereof 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 Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry.

Thus, the Apex court has now clearly laid down that a Muslim woman even after divorce would be entitled to claim maintenance from her husband u/s 125 Cr.P.C. as long as she does not remarry.

A learned Single Judge of this Court in Smt. Alima Begum versus Md. Abdul Kadir passed in Crl. Rev. P. 73 of 2009, held as follows,-

For the reasons as stated, this court holds that the Muslim divorced woman unless secured with fair and reasonable provision for maintenance, in view of Section 3(1)(a) of the Act, the Muslim woman is entitled to seek maintenance beyond the period of iddat from the husband either u/s 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 or u/s 125 of the Code of Criminal Procedure, 1973. The option of forum exclusively lies to the divorced Muslim women. So is the law as declared by the apex court in Shabana Mano (supra).

In this case one extremely surprising aspect of the matter is, that when the first order of grant of maintenance was passed on 02.11.1993 whereby the wife and children were granted maintenance of Rs. 800/- per month, the same was never challenged by the husband and he accepted his liability to pay the maintenance. Later he divorced the wife. In fact it appears that the divorce was also not a valid divorce because it was never communicated except through the written statement and that has been held to be illegal in Iqbal Bano''s case. Be that as it may, even assuming that the petitioner is a divorced Muslim wife, then also she is entitled to maintenance. Unfortunately the wife did not challenge the order dated 22.08.2001 passed by the Additional Sessions Judge, West Tripura, Agartala, whereby he directed that she was not entitled to maintenance u/s 125 Cr.P.C. but only under the Muslim Act.

In my view this finding being totally against the judgment of the Apex court is not correct and, therefore, not binding. The principles of resjudicata are not applicable in criminal proceedings. Even assuming for the sake of argument that the petitioner was entitled to maintenance u/s 125 Cr.P.C. then also as held by the Apex court even under the Muslim Act she would be entitled to maintenance even after the period of iddat is over and whatever be the forum there can be no quarrel with this proposition of law that a divorced Muslim woman is entitled to maintenance. Therefore, the order of the learned Revisional Court dated 27.01.2007 is totally illegal and is accordingly set aside and the order of the learned Judicial Magistrate, 1st class, Agartala dated 21.01.2004 whereby he granted maintenance is restored. Nine years have elapsed since this order was passed. This court cannot lose sight of the fact that during this period inflation has increased manifold and I have been told at the bar that the petitioner had not remarried. If that be correct then she shall be entitled to maintenance @ Rs. 1500/- per month w.e.f. 1st March, 2014. It would be a travesty of justice if she is again forced to go to the court of the Magistrate and file a petition for enhancement of the maintenance. In view of the above discussion, the present Criminal Revision petition is disposed of.

Send down the LCRs forthwith.