1 Cri.WP No.434/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.434/2010 HussainKhan s/o Maddu Pathan - PETITIONER VERSUS 1) Bismillabee d/o Badsha Shaikh and another. - RESPONDENTS ***** Mrs.AN Ansari, Advocate for Petitioner; Mr.VM Kagne, Advocate for Respondents. ----- CORAM : K.U.CHANDIWAL, J. DATE : 22nd March, 2011. COURT'S ORDER: 1) Heard. On 15th September, 2010, after hearing the learned Counsel, the matter was adjourned to be heard finally at the stage of admission. On 5th October, 2010, Rule and interim relief was granted. 2) The petitioner(husband) questions validity of the judgment and order dated 12.8.2009 recorded in Criminal Revision No.33 of 2007, directing to pay an amount of Rs.40,000/- as maintenance and fair provision to the wife within thirty days, failure to carry interest @ 2 Cri.WP No.434/2010 9%. 3) The learned Counsel submits, in the light of judgment in the matter of Shaikh Babbu s/o Shaikh Khutbuddin Vs. Sayeda Masarat Begum w/o Shaikh Babbu – 1999(3) Mh.L.J. 465, and since the Muslim Women (Protection of Rights on Divorce ) Act, 1986 does not contain any provision of appellate remedy or revisional remedy, the impugned judgment is rendered without jurisdiction. 4) The legal position is explained by the Full Bench of this Court in Dagadu Chotu Pathan Vs. Rahimbi Dagdu Pathan and Ors. 2003 Bom.C.R. (Cri.) 251,. The provisions of Section 125 of Cr.P.C as also the provisions of the Muslim Women (Protection of Rights on Divorce ) Act, 1986 (hereinafter to be referred as the said Act) are considered accepting eligibility and entitlement of a wife to claim maintenance. 5) The Hon’ble Apex Court in the matter of Shabana Bano Vs. Imran Khan - 2010 (1) SCC 666 : 2009 DGLS (Soft) 1281. reiterated the legal position in tune with Muslim Women (Protection of Rights on Divorce) Act, by observing in paragraph 27 that the petition under Section 125 Cr.P.C. Would be maintainable before the Family Court as 3 Cri.WP No.434/2010 long as appellant does anot re-marry. The amount of maintenance to be awarded under Section 125 Cr.P.C. Cannot be restricted for the Iddat period only. 6) In the matter of Danial Latifi Vs. Union of India – 2001 (7) SCC 740 , Constitutional Bench of the Hon'ble Apex Court, explaining the purport of the Muslim Women (Protection of Rights on Divorce ) Act, 1986, held, - "It is difficult to perceive that Muslim law would pass on the responsibility of providing monetary compensation to a divorced woman to pesons unconnected with the matrimonial life, such as the heirs likely to inherit her property or the Wakf Boards. Monetary compensation is anyway a small solace in relation to the loss a divorced woman undergoes as a direct consequence of the divorce and is universally recognized by persons belonging to all religious as an aspect of basic human rights, gender and social justice." 7) The Full Bench of this Court, in the matter of Karim Abdul Rehman Shaikh Vs. Shehnaz Karim Shaikh and Ors. - 2000 Bom.C.R.(Cri.) 758, considering the relevant provisions of the Muslim Women (Protection of Rights on Divorce ) Act, 1986, has considered the effect of the judment in the matter of Shaikh Babbu s/o Shaikh 4 Cri.WP No.434/2010 Khutbuddin Vs. Sayeda Masarat Begum w/o Shaikh Babbu – 1999(3) Mh.L.J. 465. In the light of Full Bench judgment, any observation in the matter of Shaikh Babu (cited supra), by the learned Single Judge is of in consequence. That apart, as stated above, in the matter of Danial Latifi, in paragraphs 27 and 28, the Hon'ble Apex court has spelt out the legal position in terms of Section 3(1) or in terms of Section 3(1)(a) of the said Act, which read thus, - "27. Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her husband, a reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under Section 3(2) the Muslim divorcee can file an application before a Magistrate if the former husband has not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered the properties given to her before or at the time of marriage by her relatives, or friends, or the husband or any of his relatives or friends. Section 3(3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may think fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of her former husband. The judicial enforceability of the 5 Cri.WP No.434/2010 Muslim divorced womans right to provision and maintenance under Section (3)(1)(a) of the Act has been subjected to the condition of husband having sufficient means which, strictly speaking, is contrary to the principles of Muslim law as the liability to pay maintenance during the iddat period is unconditional and cannot be circumscribed by the financial means of the husband. The purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat. 28. A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word "provision" indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her cloths, and other articles. The expression "within" should be read as "during" or "for" and this cannot be done because words cannot be construed contrary to their meaning as the 6 Cri.WP No.434/2010 word "within" would mean "on or before", "not beyond" and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but no where has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time." 8) In the situation, I do not see any infirmity in the learned Sessions Judge, directing payment of Rs.40,000/- as maintenance and fair provision to the wife – Bismillabee. The Criminal Writ Petition lacks merit, dismissed. Rule discharged. ( K.U.CHANDIWAL ) JUDGE bdv/ fldr.18.3.2011