1 (902) WP 5198/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 5198 OF 2010 ALONG WITH CIVIL APPLICATION 2851 OF 2010 Al Farook Kably .. Petitioner Vs. Mrs. Zain Al Farook Kably .. Respondent Mr. Al Farook Kably, Petitioner present in person. Mrs. Mrunalini Deshmukh a/w. Mr. Dasgupta i/b Jhangiani Narula & Associates for the Respondent. CORAM : MRS. ROSHAN DALVI, J. Date : 8th December, 2010 P.C. 1. The Petitioner husband has applied for maintenance and legal expenses from his wife as an interim relief in the Petition filed by the Respondent wife for divorce under Section 2 of the Dissolution of Muslim Marriages Act, 1939. The wife has also filed an application under the Protection of Women from the Domestic Violence Act (Domestic Violence Act) about 2 years ago. 2. The Petitioner has also filed another Petition for Restitution of Conjugal Rights under the Muslim Personal Law. 3. The maintainability of the application has been challenged and that challenge has been considered in the impugned order passed by the learned Family Court, Mumbai 2 (902) WP 5198/10 on 16th June, 2010. 4. Parties are Muslims. They are governed by Muslim Personal Law and by the legislation which have been specifically made for Muslims with regard to their marriage, divorce and ancillary rights. 5. Parties have three children who are adults and settled in the U.S., Canada and Mumbai with their respective families. 6. The Petitioner husband is/was a businessman. He is a trader. He admittedly had 2 business premises – (1) a factory in Mahim and (2) an office in Colaba. 7. The parties’ matrimonial home is in Sagar Sangeet in Colaba. It is in their joint names though there is some dispute with regard to the funding for the purchase of the matrimonial home. 8. The factory premises is in a building which was to be developed. It is the contention of the Petitioner husband that due to certain disputes raised by the wife with the developers, his agreement with the developers has not fructified. The husband contends that the negotiations have come to an end since about last 2 years. He contends that his electricity and telephone connections have been disconnected for non payment and the non payment was because of the closure of his business which in turn has been because of the complaint of the wife to the developers of the premises. No legal steps for claiming his rights are taken by the husband against his wife or the developer. 3 (902) WP 5198/10 9. The husband continues to use his office premises in Colaba. That is a tenanted premises in his name. The husband states to Court that that premises is required for his business. He states that he is not prepared to sell the premises with permission of the landlord and/or to transfer the tenancy to any other party. Counsel on behalf of the wife argued that it is 2 bedroom residential apartment in Colaba used for business purpose and would be valued at Rs.3 Crores. It is contended by the husband that due to disputes raised by the wife, her father who was his prime customer, stopped giving him orders for the purchase of the goods in which he deals. He conceded that he has few other customers also, but due to fact that, main customer, who was the wife’s father, doesn’t give him further orders, his business came to a standstill. 10. He has applied for maintenance, day to day expenses which he has enumerated and for expenses of engaging a Senior Advocate who is capable enough to argue on his behalf. 11. In the application under the Domestic Violence Act, 2005 taken out by the wife, husband made a similar application for maintenance. For want of any legislative provision in that Act for grant of maintenance to the husband, that application has been rejected. 12. The husband is stated to have made another application for maintenance against his 2 sons settled in the U.S. and Canada under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Senior Citizens Act). 4 (902) WP 5198/10 13. The application for maintenance before the Family Court is not made by the husband under the Muslims Personal Law. It is essential to note that there is no provision for maintenance of husbands under the Muslims Personal Law as is available to wives. This is in tune with the Mohammedan Law as a whole. The main source of Mohammedan Personal Law is the Holy Koran. The Koran enjoins a husband to take as many as four wives, provided of course, they are capable of maintaining them. The Koran also allows a husband to divorce his wives by pronouncement of Talaq, a facility not available to wives. From the other forms of Talaq, being Khula and Mubaraat, wives would be entitled to Talaq only under Specific provisions of Khula. There is, therefore, a total lack of gender equality and in fact specific gender discrimination in Muslim Personal Law. Such gender discrimination has been specifically done away with, by granting positive gender equality in the various legislations which form the codified Hindu Law. The Hindu Marriage Act, which is the relevant legislation, conferring total gender equality, therefore, permits applications for interim or permanent maintenance upon both spouses equally. The same is the case for all others who are married under the Special Marriage Act. The void relating to the provision for maintenance of husbands is, therefore, upon sound reasoning which follows from the law relating to marriage and divorce applicable to Muslims. The husband has not shown any Koranic injunction or provision or any provision in Mohammedan Law for grant of maintenance to husbands. In fact it is debatable whether the provision for restitution of conjugal rights to Muslims who are 5 (902) WP 5198/10 governed by Muslims Personal Law, is available in the absence of any express specific Koranic provision, which is the main source of Mohammedan Law, but that aspect is not required to be considered in this application. 14. The application for maintenance has been made by the husband in the Family Court under Section 151 of the Code of Civil Procedure. It is in that application that the impugned order of rejection is passed on the premise that it is not maintainable. Civil Procedure Code is applicable to procedural matters. Various provisions which have been made in the Civil Procedure Code have been, from time to time, seen not to be exhaustive. Various circumstances come up before the Court where in the interest of justice the Court is required to mould or grant reliefs not specifically under any particular provision of the Code. These reliefs may be granted to do justice to the parties in an application made under other substantive laws. However when there is a specific void in the provisions in Personal Law or any special legislation by which the parties are governed, the grant of a substantive relief as an enhancement of power of Court under a procedural law would tantamount to Court legislating on that provision. Further with regard to the Personal Law, despite the specific provision in the Constitution of India under Article 44 for a Uniform Civil Code, such Code has not been enacted in our country yet. Grant of relief not enjoined by the Personal Law and not contemplated in any of the beneficiant legislations in aid of the Uniform Civil Code would constitute an illegal order as it would be contrary to the Personal Law by which the parties are governed. 6 (902) WP 5198/10 15. The husband has relied upon certain judgments under Section 151 granting certain reliefs. These deserved a special note. 16. In the case of Smt. Jai Rani Puri and another Vs. Vinod Kumar Puri and others AIR 1998 DELHI 212 an ad hoc payment of Rs.50,000/- was made to the Plaintiff who was the widow of a deceased partner for medical treatment. The case was governed by Partnership Law. Under the Indian Partnership Act, 1932 the legal representative of a deceased partner would be entitled to a share upon dissolution of the firm which would be payable after the death of the partner. Accounts would be required to be made out. The Suit was for dissolution of the firm and rendition of accounts. The Plaintiff widow would have been entitled to some amount by way of accounts as she claimed as heir of the deceased husband who was the partner of the firm. A family settlement was reached between the Plaintiff and the other partners with regard to the assets of the firm which were observed to be belonging to the joint family whose membership constituted the partnership. Defendant No.1 in that Suit stated that there were sufficient funds to be paid to other Defendants who are partners. Those Defendants had no objection for payment to the Applicant against her share. Under those circumstances, it was held that the Court was not restricted under Section 94 of the Code and an application for payment of some amount for medical expenses could be directed even though there was no specific provision in the Code for that purpose since the provisions of the Code were not exhaustive. 7 (902) WP 5198/10 The analogy in that case cannot apply to a spouse who is otherwise not entitled to maintenance making an application in that behalf. 17. In the case of Aires Rodrigues Vs. State 2010(2) Bom.C.R. (Cri.) 313 a Revision Application was converted into an Appeal. That was under the provision of procedural law. A criminal prosecution was lodged. The Petitioner was discharged. The Respondent state filed an Appeal instead of a Revision. Maintainability of the Appeal was challenged. Since an Appeal could otherwise not been filed against the order of discharge, the State filed an application for converting the Appeal into Revision which was allowed. The challenge to it was repelled. That was despite the fact that there was no provision in the procedural Code for such conversion. It was held that a Criminal Court, governed by Criminal Procedure Code in matters of procedure, would not be helpless if a specific provision was not found to reach out to a party in the interest of justice. The analogy in that case also would not apply to the case of the Petitioner herein who has applied for substantive reliefs for granting maintenance though his Personal Law has no provision in that behalf. 18. The Petitioner has relied upon and produced before me the extract of Section 125 of the Criminal Procedure Code. His application is not made under that provision. That provision is specially made for an order of maintenance of wife/wives, children and parents. The Petitioner as a husband cannot apply under that provision also. 8 (902) WP 5198/10 19. The Petitioner has also relied upon Section 4 (4) of the Senior Citizens Act. That Act is also for maintenance of a senior citizen by his relatives who are in possession of his property or if they would inherited his property. If there are more than one person to inherit the property the provision that would be made would be proportionate to share of such inheritance. 20. The Petitioner is a senior citizen. He states that he is 61 years old. He has claimed from his wife who is his relative. His wife would have 1/4th or 1/8th share in his estate if the Petitioner left no testamentary disposition for that part of his estate as he would be entitled. Though the application in the lower Court is not made under that Section, the Petitioner’s case under that Section has been considered on merits. 21. Section 5 of the said Act enjoins senior citizens to be maintained by his children and if he is incapable, by any other person or organization authorized by him. The Petitioner has not shown that he is physically or mentally incapable of earning. The Petitioner’s claim to his office premises shows that the Petitioner is capable, at least, of generating funds from the office premises either by letting it out or selling it. Hence the application of the Petitioner claiming maintenance from his wife does not fall within the purview of the Senior Citizens Act also. The Petitioner has stated to Court that he has filed an application against his 2 sons which would be considered on its own merits in the competent Court. 9 (902) WP 5198/10 22. It may be mentioned that the case of the Petitioner is of a person incapable of maintaining himself. The Petitioner is a businessman having an office premises. His factory premises is not, and cannot be, lost to him. If due to his wife’s disputes or conduct, he has not been able to obtain alternative premises or his lawful rights therein if it for the Petitioner to agitate his proprietary or contractual rights under the general law applicable to all Indian citizens against his wife and/or the developer. He may also be entitled to work out options with either of them for a prudent, amicable settlement of his disputes. The Petitioner’s sufferance under his proprietary or contractual rights cannot be the reason for his capability of maintaining himself or of being granted any relief of maintenance from his wife. This would be the case even against males from other communities to whom the law of maintenance may apply e.g. Hindus. 23. The Petitioner has also applied for costs of prosecuting his application for interim maintenance from his wife. The application is also made as is usually made by parties governed by the Hindu Marriage Act or Special Marriage Act in which legislations there is an express provision in that behalf. The object of that provision is also power balancing to bring about gender equality and is for gender protection. Such Costs, under those legislations, can be granted to either spouse who has no resources to litigate against his financially more powerful spouse. For the reasons aforesaid with regard to the grant of maintenance itself not being provided to Muslim husbands, the costs of prosecuting such 10 (902) WP 5198/10 applications, as also any other applications, also cannot be provided to Muslim husbands. 24. The Petitioner has been offered by the trial Court in the impugned order as well as by this Court services of a lawyer under the legal aid scheme of our courts. The Petitioner has refused such services. He claims that that services would not be commensurate with the service of Senior Counsel whom the lawyer would be required to oppose in his application given the fact that his wife has service of Senior Advocate and Counsel. The Petitioner is entitled to legal aid under the provisions of Section 304 of the Criminal Procedure Code. That is required to be allowed as a matter of course in all criminal trials. There is no legislative enjoinment for legal aid in civil trials. Nevertheless in certain deserving cases legal aid has been provided though there is no specific mention of such procedure in the Civil Procedure Code as in the Criminal Procedure Code. Such order as passed under Section 151 of the Code of Civil Procedure. The party requiring or desiring legal aid services cannot have choice of an Advocate. He must take the services of the Advocate who is offered to him. Counsel on behalf of the wife stated to Court that the seniormost lawyer on the panel legal aid which is provided in the Family Court, Mumbai was offered to the Petitioner by the learned Principal Judge of the Family Court, which was refused. The Petitioner could not be granted expenses that he might incur for the lawyer of his choice to be paid by his wife. 25. It is seen that neither is the Petitioner’s application maintainable under any law nor on merits 11 (902) WP 5198/10 would he be entitled to claim maintenance in the position that he is. 26. The order of the Family Court, therefore, cannot be faulted. The Petition is dismissed. 27. C.A. No. 2851 of 2010 does not survive & is disposed off as infructuous. ( ROSHAN DALVI, J.)