Wahid Khan vs Smt. Sarwari

P.N. Bakshi, J.—An application u/s 125 Code of Criminal Procedure was filed by Shrimati Sarwari on 20th October, 1976 claiming maintenance allowance of Rs. 75/-for herself and Rs. 50/-for her minor son against her husband Wahid Khan, on the allegation that she was his legally married wife and the latter had failed to maintain her. Wahid Khan was in military service and was drawing Rs. 400/-per month. The husband contested the claim of Shrimati Sarwari. He pleaded that she had been divorced in 1973 and that Sayeed was not his son. Both the parties led evidence in support of their respective claims. The special Judicial Magistrate, first class, after a consideration of the entire evidence on the record came to the conclusion that Shrimati Sarwari was the legally wedded wife of Wahid Khan, that the latter had failed to maintain her and that Sayeed was the legitimate child of Wahid Khan. On these findings a maintenance allowance of Rs. 125/-per month-Rs. 75/-per month for the wife and Rs. 50/-per month for the minor son-was allowed by the trial court from the date of his order viz. 11th July 1977. Aggrieved thereby a revision was filed before the Sessions Judge, Farrukhabad which had been dismissed on 28th September, 1977. Thereafter the applicant has approached this Court u/s 482 Code of Criminal Procedure.

I have heard counsel for the parties and have also perused the impugned order. It has been argued by the learned Counsel for the applicant that Shrimati Sarwari being a divorced Muslim wife is not entitled to any maintenance from her husband beyond the period of Iddat. The argument is that the personal law relating to Muslim community is in conflict with Section 127(3) Code of Criminal Procedure 1973. Section 127(3) runs as follows:

127(3) Where any order has been made u/s 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that:

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,

(i) in the case where such sum was paid before such order, from the date on which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman,

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.

Under the aforesaid section an order for maintenance passed u/s 125 Code of Criminal Procedure in favour of a woman can be cancelled if the woman has remarried; or she has been divorced and has received the whole sum which she may be entitled to under customary or personal law applicable to the parties, viz., in the instant case would be deferred-dower debt. The argument was that Section 127(3)(a) Code of Criminal Procedure is in conflict with the personal law relating to the Muslim community, which only permits payment of the maintenance allowance for the period of Iddat. This argument does not appeal to me at all. Section 127(3) Code of Criminal Procedure has not in any manner abridged the rights of the Muslim woman to claim maintenance from her husband. As a matter of fact, it has granted additional rights to a divorced Muslim woman for receiving maintenance beyond the period of Iddat, till such time as she has not married after her divorce. This additional benefit, to my mind, does not conflict at all with the rights which already accrue to her under the Muslim law. A similar view has been expressed by Mr. M.S. Nesargi, J. of the Karnataka High Court in Umar Hayat Khan Vs. Mahaboobunnisa, . I am in full agreement with the learned Judge of that Court, who has expressed himself in the following words:

As is clear from the Explanation to Section 125 of the new Code, a divorced woman can ask for maintenance under this provision till she does not get married again. According to the principles of Mohammadan Law, a divorced wife has a right to claim maintenance from her husband only upto the expiry of the period of Iddat and not beyond that period. The plain meaning of the word ''wife'' as found in the Explanation to Section 125 of the new Code shows that a divorced Mohammadan woman can bring action u/s 125 of the new Code claiming maintenance from her ex-husband so long as she does not remarry, even if the period falls beyond the period of Iddat. That shows that maintenance to some additional period beyond the period of Iddat becomes available to a divorced Mohammadan woman in an action u/s 125 of the new Code. This additional benefit does not at all conflict with the right she has under the Mohammadan Law. By proceeding u/s 125 of the new Code, she gets something more than what she is entitled to get under her personal law. A Statute can confer rights and benefits on persons even though those rights and benefits happen to be more than what those persons are entitled to, under their personal law.

Apart from the question of law, the factual position appears to be absolutely undisputed that Shrimati Sarwari has not remarried after the divorce. The divorce which is alleged to have been set up by the husband in 1973 has not been accepted by the courts below. At the most it can be urged that when the written statement was filed by the husband on 30th March, 1977, it would be deemed in law that she was divorced by Wahid Khan. However, no material has been placed before me till today, to show that she has remarried after 30th March 1977. As such, in my opinion, Shrimati Sarwari would be entitled to maintenance so long as she has not remarried.

It has also been argued by the applicant''s counsel that three months'' maintenance allowance has been paid to Shrimati Sarwari under the personal law applicable to the parties. No receipt for the same has been filed, nor has the date of payment been mentioned. Moreover, these allegations were not made in the original affidavit filed in this Court along with the application u/s 482 Code of Criminal Procedure but have been made in the rejoinder affidavit which Shrimati Sarwari had no chance to rebut. There is nothing on the record to indicate as to what was the amount of deferred dower debt, which was agreed between the parties, nor is there sufficient material to indicate that the same has been paid. In my view, therefore, no relief can be given to the applicant on this ground also.

In another case H. Syed Ahmad v. Naghath Parveen Taj Begam AIR 1958 Mys.128, K.S. Hegde, J(as he then was) has held as follows:

The plea of personal law makes no appeal to me. The Criminal P.C. is a law of the land and not of any community. If there is a conflict between the law enacted by the legislature and the personal law, then the former prevails. The legislative will is supreme in this land unless controlled by the Constitution. There is no constitutional guarantee to respect the personal law of any community. There is no doubt that the amendment in question is the result of the working of social forces.

It is but natural in a country like ours, the social forces make themselves felt more effectively amongst certain sections of the people but the common will is perceptible. These changes are not accidental but are intended to usher in a new way of life. They represent a new ideal and trend....

In the aforesaid decision the question for consideration was whether there was any conflict between Section 488 old Code of Criminal Procedure allowing a maintenance allowance on the ground that the husband has remarried, and the Mohammadan law which entitles a Muslim to take four wives at a time.

With regard to the maintenance allowance payable to Sayeed, the son of the applicant, it is noticeable that Wahid Khan has denied his legitimacy. He has imputed incorrect allegations of unchastity on his wife and has disclaimed that Sayeed was born of a wedlock between him and Shrimati Sarwari. This plea has been found false by both the courts below. The right of the minor son to be maintained by the father is an absolutely independent right unconnected with the right of his mother. The father is under a legal obligation to maintain his child. Even assuming for the purposes of argument that the child was illegitimate-which is not a fact-even then Waheed Khan would be liable to maintain him. In this connection reference may be made to the decision of Km. Nafees Ara v. Asif Saadat Ali Khan 1962 AWR 627, wherein maintenance was claimed for an illegitimate child u/s 488 Code of Criminal Procedure (old). It was contended that an illegitimate child has no right to be maintained by his father under the provisions of Muslim Law. This argument was repelled in the following words:

The fact that the Mohammedan Law makes no specific provision for granting or prohibiting the grant of maintenance to an illegitimate child against the father, does not lead to the inference that the Criminal Court or Civil Court has no jurisdiction to grant such maintenance. The provisions of the Code of Criminal Procedure are pert of the general law of the land which is in the absence of any contradictory provision in the Mohammadan law, as binding on Mohammadans as other citizens of this country. Therefore, apart from Mohammadan Law, the illegitimate child has a right to grant of maintenance from the father.

For the reasons given above, I do not find any force in the contention raised on behalf of the applicant.

This application u/s 482 Code of Criminal Procedure is hereby dismissed.