CR.RA/91/1988 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No.91 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE BANKIM N. MEHTA ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 To be referred to the Reporter or not? 3 Whether Their Lordships wish to see the fair copy of the judgment? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================== YASMINABEN NIVAJKHAN SHAIKH - Petitioner Versus NIVAJKHAN YASINMIYA SHAIKH & ANR. - Respondents ========================================================== Appearance : MR SHAMSHAD PATHAN for MR SUBRAMANIAM IYER for Petitioner. MR MC SHAH for Respondent No.1. MR KC SHAH, APP for Respondent No.2. ========================================================== CORAM : HONOURABLE MR. JUSTICE BANKIM N. MEHTA Date : 11/03/2008 ORAL JUDGMENT 1. By filing this Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 [“the Code” for short], the CR.RA/91/1988 2/8 JUDGMENT petitioner-wife has challenged the judgment dated 24.11.1987 rendered by the learned Assistant Judge, Sabarkantha at Himatnagar, in Criminal Revision Application No.18 of 1987 whereby the order of maintenance passed by learned Chief Judicial Magistrate, Sabarkantha at Himatnagar on 17.01.1987 in Criminal Misc. Application No.10 of 1986 awarding maintenance of Rs.150=00 per month from the date of the application has been set aside. 2. The petitioner-wife initiated proceedings under Section 125 of the Code in the trial Court, inter alia, contending that she was married to the respondent-husband according to Muslim customs and started residing with him, but after sometime the respondent-husband started inflicting physical cruelty but she continued to reside with him; that she was driven out by the respondent-husband and since then she is residing separately; that the respondent-husband has refused and neglected to maintain her; that the respondent-husband is earning Rs.50/- per day by plying auto-rickshaw and, therefore, she is entitled for maintenance. 3. After hearing, the trial Court allowed the CR.RA/91/1988 3/8 JUDGMENT application and awarded maintenance of Rs.150=00 per month to the petitioner-wife by its order dated 17.01.1987. Being aggrieved by the said decision, the respondent- husband preferred Criminal Revision Application No.18 of 1987 in the District Court, Sabarkantha at Himatnagar. The first revisional Court by the impugned judgment dated 24.11.1987 set aside the order of maintenance passed by the trial Court. Hence, the petitioner-wife has preferred this Criminal Revision Application. 4. Mr.Subramaniam Iyer, learned advocate for the petitioner, has filed leave-note, but Mr.Shamshad Pathan, learned advocate, states that he would proceed with the matter and would make oral submissions on behalf of Mr.Iyer. Therefore, I have heard Mr.Pathan, learned advocate for the petitioner, and Mr.M.C.Shah, learned advocate for the respondent No.1-husband as well as Mr.K.C.Shah, learned advocate for the respondent No.2-State at length and in great detail. CR.RA/91/1988 4/8 JUDGMENT 5. Mr.Pathan, learned advocate for the petitioner, submitted that the parties would be governed by the provisions of Section 125 of the Code as divorce was given during the proceedings in the trial Court and, therefore, the trial Court was justified in awarding the maintenance, but revisional Court committed error in setting aside the judgment and, therefore, the impugned judgment is required to be set aside. 6. Mr.Shah, learned advocate for the respondent-husband, vehemently submitted that during the pendency of the proceedings in the trial Court, as the petitioner- wife was given divorce, she is not entitled to claim maintenance under Section 125 of the Code and, therefore, the learned Magistrate committed error in passing the order of maintenance, but the first revisional Court was justified in correcting the error by setting aside the order of maintenance. Hence, no interference is warranted in the impugned judgment. He also submitted that in view of the provisions of The Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short “the Act”), the petitioner-wife would be entitled for maintenance only till the date she remarries or till the iddat period. Therefore also, the impugned judgment does CR.RA/91/1988 5/8 JUDGMENT not require any interference. 7. It appears from the judgment of the trial Court that after considering various aspects, the Court came to conclusion that there was neglect and refusal by the respondent-husband to maintain the petitioner-wife and, therefore, she was entitled to claim maintenance. The trial Court, after considering the evidence with regard to income, awarded maintenance at the rate of Rs.150=00 per month from the date of the application. 8. The impugned judgment indicates that the first revisional Court came to the conclusion that the respondent-husband gave divorce and sent Talaknama to the petitioner-wife by Regd. Post A.D. and Under Certificate of Posting, and, therefore, the petitioner-wife being a divorced woman as defined under the provisions of the Act, not entitled for maintenance as option under Section 5 of the Act was not exercised by the parties. Therefore, the impugned order of maintenance passed under Section 125 of the Code by the trial court is set aside. 9. It is not in dispute that during the pendency of the CR.RA/91/1988 6/8 JUDGMENT proceedings in the trial Court, the respondent husband gave divorce to the petitioner-wife and Talaknama was sent to her by R.P.A.D. and U.P.C. Therefore, when the petitioner-wife initiated the proceedings, she was a wife but subsequently during the proceedings, she was divorced by her husband and was divorced woman as defined in the Act. The provisions of the Act are to protect the rights of Muslim Women, who have been divorced or have obtained divorce from their husbands and to provide matters connected therewith or incidental thereto. Section 3 of the Act provides for mahr or other properties of Muslim Woman to be given to her at the time of divorce. Section 4 of the Act provides for order for payment of maintenance. Section 5 of the Act provides for option to be governed by the provisions of Sections 125 to 128 of the Code. Section 7 of the Act contains transitional provisions. It provides that every application by a divorced woman under Section 125 or under Section 127 of the Code pending before a Magistrate on the commencement of the Act shall notwithstanding anything contained in the Code and subject to provisions of Section 5 of the Act be disposed of by such Magistrate in accordance with the provisions of the Act. It appears from the impugned CR.RA/91/1988 7/8 JUDGMENT judgment that the petitioner-wife exercised option in the trial Court, but the respondent-husband did not exercise the option. In view of the fact that the petitioner-wife was given divorce during the pendency of the proceedings before the trial Court, it could not be said that the proceedings under Section 125 of the Code were filed by a divorced woman. Therefore, it cannot be said that in view of transitional provisions of Section 7 of the Act the parties would be governed by the provisions of the Act. Therefore, the first revisional Court committed grave error in upsetting the order of maintenance passed by the trial Court. The error committed by the revisional Court has resulted into grave injustice to the petitioner-wife. Hence, the impugned judgment is required to be set aside. 10. Mr.Shah, learned advocate for the respondent-husband, has also submitted that the petitioner-wife would be entitled for maintenance till iddat period and, therefore, the amount of maintenance may be awarded till the iddat period. As this Court has held that the parties would be governed by the provision of Section 125 of the Code, this submission cannot be CR.RA/91/1988 8/8 JUDGMENT accepted. 11. In view of the above, the impugned judgment of first revisional Court is erroneous and perverse and it has resulted into grave injustice to the petitioner-wife. Therefore, the impugned judgment is required to be quashed and set aside and the order of the trial Court awarding maintenance is required to be restored. In the result, this Revision Application succeeds. The judgment and order dated 24.11.1987 rendered in Criminal Revision Application No.18 of 1987 by the learned Assistant Judge, Sabarkantha at Himatnagar, is hereby quashed and set aside and the order of maintenance passed by learned Chief Judicial Magistrate, Sabarkantha at Himatnagar, on 17.01.1987 in Criminal Misc. Application No.10 of 1986 is restored. In the peculiar facts and circumstances of the case, there will be no order as to costs. Rule is made absolute accordingly. [Bankim N. Mehta, J.] Rajendra