CR.RA/303/1990 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No.303 of 1990 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? ========================================================= = AJMERI NAZMABEN D/O SAKURBHAI NOOR MAHMAD - Petitioner Versus STATE OF GUJARAT & ANR. - Respondents ========================================================= = Appearance : MR PRAKASH K JANI for Petitioner. MS FALGUNI PATEL, APP for Respondent No.1. MR AJ MEMON for Respondent No.2. ========================================================= = CORAM : HONOURABLE MR. JUSTICE BANKIM N. MEHTA Date : 08/02/2008 ORAL JUDGMENT The petitioner-wife has filed this application under Section 397 read with Section 401 of the Code of CR.RA/303/1990 2/13 JUDGMENT Criminal Procedure, 1973 [“the Code” for short] and challenged the judgment & order dated 8th August 1990 passed by the learned Additional Sessions Judge, Mehsana, in Criminal Revision Application No.41 of 1990 whereby the order dated 5th September 1989 passed by the learned Judicial Magistrate First Class, Kadi, in Criminal Misc. Application No.190 of 1988 under Section 125 of the Code awarding maintenance of Rs.300=00 per month and cost of Rs.200=00 to the petitioner, has been quashed and set aside. 2. The petitioner (wife) and the respondent No.2 herein (former husband) were married as per Muslim Sheriyat before about 7-8 years of filing of the application. It is alleged that the respondent-husband was ill- treating the petitioner-wife and in the year 1988 the respondent-husband forcibly removed the petitioner-wife from his house. Thereafter, on 16th September 1988, he sent talak by Under Postal Certificate and gave divorce without any reason and refused and neglected to maintain her. It is further alleged that the petitioner had no independent source of income and, therefore, was constrained to file the application claiming maintenance from the CR.RA/303/1990 3/13 JUDGMENT respondent-husband, who was working as a Typist in the District Panchayat, Bharuch, and earning Rs.1500=00 per month. The application was resisted by the respondent-husband by filing reply, inter alia, contending that the petitioner left the matrimonial house and refused to stay with him and, therefore, she has no right to claim maintenance and he has other liabilities and his salary is Rs.1500=00 per month and, therefore, the application be dismissed. After hearing the parties, the learned Judicial Magistrate First Class, Kadi, by his judgment and order dated 5th September 1989, awarded Rs.300=00 per month towards maintenance from the date of the application and also awarded costs of Rs.200=00. Therefore, the respondent-husband filed Criminal Revision Application in the Sessions Court at Mehsana. After hearing, the learned Additional Sessions Judge, Mehsana, by his impugned judgment & order dated 8th August 1990, allowed the Revision Application and set aside the order of maintenance passed by the trial Court. Being aggrieved by the said decision, the CR.RA/303/1990 4/13 JUDGMENT petitioner-wife has preferred this Revision Application. 3. It appears that this Court [Coram: J.M.Panchal, J., as he then was] by order dated 26th July 1995, directed this Revision Application to be heard along with Special Criminal Application No.83 of 1989. It also appears that Special Criminal Application No.83 of 1989 was referred to a larger bench by the learned Single Judge [Coram: V.H.Bhairavia, J.] vide his order dated 12th August 1991. Pursuant to that, Special Criminal Application No.83 of 1989 with other matters were heard by the larger bench and the following order was passed: “In view of this clear position, we are of the opinion that the matters where there is challenge to the provision of law, the same may be placed accordingly before a Division Bench. Otherwise, as per the rule, if the matter is required to be placed before the Single Judge, the same may be placed before the learned Single Judge for disposal in accordance with law.” Accordingly, this matter was assigned to this Court for final disposal. 4. Mr.P.K.Jani, learned advocate for the petitioner, was heard yesterday, i.e. on 7th February 2008. CR.RA/303/1990 5/13 JUDGMENT Today, he has filed leave-note, but Mr.Y.M.Thakore, learned advocate, is present on his behalf before the Court and states that the matter may be proceeded. Therefore, I have heard submissions of Mr.A.J.Memon, learned advocate for the respondent- husband, today. I have also heard Ms.Falguni Patel, learned Additional Public Prosecutor, for the respondent No.1-State. 5. Mr.P.K.Jani, learned advocate for the petitioner, submitted that a Muslim woman cannot be deprived of her right to claim maintenance under Section 125 of the Code simply because she is entitled to claim maintenance under The Muslim Women (Protection of Rights on Divorce) Act, 1986 [“the Act” for short]. He also submitted that the petitioner is entitled to maintenance as she has not remarried and the respondent has not made any arrangement for her maintenance and has refused and neglected to maintain her. He submitted that the order of the learned J.M.F.C. was legal and valid and, as the learned Additional Sessions Judge has erred in disturbing the same, the order of the learned additional Sessions Judge is required to be quashed and set aside. He relied upon the decisions in (1) CR.RA/303/1990 6/13 JUDGMENT Mohd. Ahmed Khan vs. Shah Bano Begum & Ors., AIR 1985 SC 945; (2) Danial Latifi & Anr. vs. Union of India, AIR 2001 SC 3958; (3) Iqbal Bano vs. State of U.P. & Anr., AIR 2007 SC 2215; (4) Arab Ahmedbin Abdulla vs. Arab Bail Mohmuna Saiyadbhai & Anr., 1988 (1) G.L.R. 452; and, (5) Kulsumben Adambhai & Ors. vs. Noormohmad Pirbhai & Anr., 2001 (1) G.L.H. 1. 6. Mr.A.J.Memon, learned advocate for the respondent- husband, submitted that in view of the fact that the petitioner-wife had married according to Muslim Personal Law, she would be governed by the provisions of the Act as divorce was given to her and, therefore, she is not entitled to claim maintenance under the provisions of Section 125 of the Code, as a result of which, the first revisional court was justified in passing the impugned order. In sum and substance, the learned advocate for the respondent No.2 supported the order of the learned Additional Sessions Judge. 7. It appears that there is no dispute with regard to the fact that the parties married according to Muslim Sheriyat Law. A copy of the maintenance CR.RA/303/1990 7/13 JUDGMENT application produced with the compilation indicates that application for maintenance was filed as the respondent-husband gave her talak. Therefore, there is also no dispute with regard to the fact that the petitioner claimed maintenance as a divorcee. Now, the only question, that is required to be determined, is whether the petitioner-wife would be entitled to claim maintenance under Section 125 of the Code or not. 8. Under Section 125 of the Code, if any person having sufficient means, neglects or refuses to maintain his wife including a woman, who has been divorced by or has obtained a divorce from her husband, and has not remarried, upon proof of such neglect or refusal, a Magistrate of First Class may order such person to make monthly allowance for the maintenance. This provision indicates that a divorced wife is also entitled to claim maintenance if she is unable to maintain herself and has not remarried. The petitioner filed the application before the trial Court alleging that she has been divorced by the respondent-husband and she is unable to maintain herself. The trial Court after the assessment of the CR.RA/303/1990 8/13 JUDGMENT evidence granted maintenance to her, but the first revisional court set aside the order on the ground that the petitioner being divorced wife is governed by the provisions of the Act and, therefore, she cannot claim maintenance under the provisions of Section 125 of the Code. 9. Here, it would be necessary to refer to the relevant provisions of The Muslim Women (Protection of Rights on Divorce) Act, 1986. Section 2(a) of the Act defines “divorced woman” as under: “divorced woman” means a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from, her husband in accordance with Muslim law.” Section 3 of the Act provides for mahr or other properties of Muslim woman to be given to her at the time of divorce. Subsection (1) of Section 3 provides that a divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. Section 3(2) of the Act provides that where a reasonable and fair provision and CR.RA/303/1990 9/13 JUDGMENT maintenance or the amount of mahr or dower due has not been made or paid or the properties have not been delivered to a divorced woman on her divorce, she or any one duly authorized by her may make an application to a Magistrate for an order for payment of such provision and maintenance. Subsection (3) of Section 3 of the Act provides that on making such application, the Magistrate may, if he is satisfied, that the husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her, direct the former husband to pay such reasonable and fair provision and maintenance to the divorced woman. Section 5 of the Act provides that the provision of Section 125 of the Code would apply only if both the parties exercise their option to be governed by the provisions of Sections 125 to 128 of the Code at the first hearing under Section 3(2) of the Act and not in any other case. In view of these provisions of the Act, it becomes clear that the provisions of Section 125 of the Code would apply only if both the parties exercise their option to be governed by Sections 125 to 128 of the Code at the first hearing under Section 3(2) of the Act and not in any other CR.RA/303/1990 10/13 JUDGMENT case. It is not in dispute that in the instant case, the parties have not exercised the option contemplated under Section 5 of the Act. Therefore, the petitioner is not entitled to claim maintenance under Section 125 of the Code. 10. In the decision of Iqbal Bano vs. State of U.P. & Anr. (supra), the Apex Court has observed that the provisions of this Act apply to a divorced woman. In paragraph 7 of the said reported decision, the Supreme Court has, inter alia, observed as under: “7. ... 36. 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 maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(i)(a) of the Act. (2) Liability of the Muslim husband to his divorced wife arising under Section 3(i)(a) of the Act to pay maintenance is not confined to the iddat period. (3) A divorced Muslim woman who is not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relative who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law for such divorced woman including her children and parents. If any of her relative being unable to pay maintenance, the Magistrate may direct the CR.RA/303/1990 11/13 JUDGMENT State Waqf Board established under the Act to pay maintenance. (4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Indian Constitution.” In the decision of Danial Latifi vs. Union of India (supra), the Hon'ble Apex Court has in paragraph 26 observed as under: “26. A reading of the Act will indicate that it codifies and regulates the obligations due to a Muslim woman divorcee by putting them outside the scope of Section 125 of the Cr.P.C. as the 'divorced woman' has been defined as “Muslim woman who was married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with the Muslim law.” But the Act does not apply to a Muslim woman whose marriage is solemnized either under the Indian Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969 or the Indian Special Marriage Act, 1954. The Act does not apply to the deserted and separated Muslim wives. The maintenance under the Act is to be paid by the husband for the duration of the iddat period and this obligation does not extend beyond the period of iddat. Once the relationship with the husband has come to an end with the expiry of the iddat period, the responsibility devolves upon the relatives of the divorcee. The Act follows Muslim personal law in determining which relatives are responsible under which circumstances. If there are no relatives, or no relatives are able to support the divorcee, then the Court can order the State Wakf Boards to pay the maintenance.” This decision clearly indicates that the Act has put the Muslim woman divorcee outside the scope of Section 125 of the Code. It is not in dispute that CR.RA/303/1990 12/13 JUDGMENT in the instant case, the parties are governed by the Muslim law and, therefore, they would be governed by this Act and not by Section 125 of the Code. 11. Mr.Jani, learned advocate for the petitioner, also relied upon the decision of Kulsumben Adambhai & Ors. vs. Noormohmad Pirbhai and Anr. (supra), with regard to right of maintenance to divorced Muslim woman, but in view of the decisions of the Supreme Court, the said decision cannot be made applicable in the facts of this case. 12. Mr.Jani, learned advocate for the petitioner, also relied upon another decision of the Supreme Court in the case of Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. (supra), with regard to right of maintenance by a Muslim divorcee woman under Section 125 of the Code. In view of the fact that The Muslim Women (Protection of Rights on Divorce) Act, 1986 came to be enacted subsequent to the said decision, it cannot be made applicable in the facts of the present case. Another decision of this Court in the case of Arab Ahmedbin Abdulla vs. Arab Bail Mohmuna Saiyadbhai & Anr. (supra), relied upon by the learned advocate for the petitioner, lays down the CR.RA/303/1990 13/13 JUDGMENT law with regard to orders passed under Section 125 of the Code before the enactment of the Act. In the facts and circumstances of this case, the said decision is not relevant. 13. In view of the above, it becomes clear that the petitioner would be governed by the provisions of the Act and, therefore, in the light of the decisions of the Supreme Court, the learned Additional Sessions Judge was justified in passing the impugned order. The learned advocate for the petitioner has not been able to indicate that the impugned order is erroneous or perverse. 14. In the result, the Revision Application fails and stands dismissed. Rule is discharge. [Bankim N. Mehta, J.] Rajendra