Varikottil Saidalavi vs Sofia and Another

Chettur Sankaran Nair, J.—The petitioner, husband of first respondent and father of the second respondent-seeks to quash the proceedings in M.C. 84/1986 on the file of the Judicial Magistrate of First Class, Tirur. The first respondent filed Crl. M.C 72, 1986 in the same, court u/s 125 of Code of Crl. P. C. on 29-8-1986 claiming maintenance, for herself and her child. Then she filed M. C. 84/1986 for herself under the Muslim Women (Protection of Rights on Divorce) Act. Accordingly by order dated 26-12-1986, The Magistrate awarded maintenance to the child; but not to the first respondent as she preferred to seek her remedies under the Muslim Women (Protection of Rights on Divorce) Act, 1986 shortly called the ''Act'', hereinafter.

Petitioner would say, that the application under the ''Act'' would not lie, as she had invoked the provisions of the Criminal Procedure Code in M. C. 72/1986.

Counsel for petitioner, relies on Sections 5 and 7 of the Act. Section 5 enables a divorced woman to elect the remedy under Sections 125 to 128 of the Code of Criminal Procedure if she and her former husband declare, by an affidavit or otherwise, jointly or separately to be governed by provisions of Section 125 to 128 of the Code. Section 7 contains transitional Provisions, regarding pending applications. It is unnecessary to consider the scope of, Section 7 because, there was no application pending when the Act came into force on 19-5-1986.

The application u/s 125 Cr.P. C. was made only on 29-8-1986, at a time when the woman could not have invoked that section, on her own. Having secured an order of maintenance under the Code for the child, counsel would say, the petitioner cannot invoke the remedy under the Act. This argument cannot be supported on principle or precedent The remedy invoked under the Code was only for the child. A child can claim maintenance u/s 125 Cr. P. C. even after coming into force of the Act. The preamble to the Act shows that the Act, deals with the right of Muslim Women, and not children (emphasis supplied). I am not unaware of the provisions of Sec. 3 (1) (b) of the Act. At any rate, in the instant case, the award of maintenance to the child under the Code is not challenged.

Contention that a divorced Muslim woman has the option to elect the remedy under the Act or the Code is incorrect. A Muslim woman on her own, can invoke only the remedy under the Act. The provisions of the Criminal Procedure Code can be invoked only if a woman and her husband make a declaration that they would prefer to be governed by the Code. Without concurrence of the husband, the woman by herself cannot invoke the remedy under the code. Therefore, there is no question of the woman seeking concurrent remedies. One remedy excludes the other, and, the remedy under the Code can be sought only if the husband agrees with the wife in that behalf

Counsel would, then contend that provisions of the Code are not repealed, and that the remedy thereunder is open. True, they are not repealed, but invocation is conditioned by a joint application under the Act. For the foregoing reasons, the application by the divorced wife under the Act is competent. Maintenance awarded to the child under the Code cannot be challenged, because the child, notwithstanding the Act, can invoke Section 125 of the Code.

Petition is without merit, and is accordingly dismissed.