1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER 1.SB Cr Revision Petition No. 221/2009 Shahidul Haq Chisti Vs Smt Rana Nahid @ Reshma @ Sana & anr 2.SB Cr Revision Petition No. 295/2009 Smt Rana Nahid @ Reshma @ Sana & anr Vs Dr Shahidul Haq Chisti 28.7.2010 HON'BLE MR JUSTICE MN BHANDARI Mr PA Gandevia Mr Rajesh Kapoor – for petitioner-Shahidul Haq Chisti Mr Rajendra Kumar Sharma – for respondents-Smt Rana Nahid BY THE COURT: REPORTABLE Two revision petitions have been filed assailing the order passed by the Family Court, Ajmer on 10.12.2008. Smt Rana Nahid (petitioner in revision No.295/2009 and respondent in revision No.221/2009) preferred an application under section 125 CrPC seeking maintenance. While hearing the application, Family Court found that application under section 125 CrPC is not maintainable thus invoked the provisions of section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 2 1986 (for short 'the Act of 1986') and awarded a sum of Rs.3,00,000/-to the wife-Smt Rana Nahid towards maintenance apart from maintenance to son. Learned counsel for petitioner-husband-Dr Shahidul Haq Chisti, in other revision petition has assailed the order mainly on the ground that as per provisions of section 3 of the Act of 1986, an application can be maintained before the competent Magistrate, but contrary to aforesaid, Family Court entertained the application treating it to be under section 3 of the Act of 1986, and passed the impugned order which is per se illegal being without jurisdiction. The prayer is, accordingly, to set aside the impugned order to the extent of awarding maintenance to Smt. Rana Nahid. Learned counsel for respondent-wife-Smt Rana Nahid submits that the ground taken by learned counsel for petitioner- husband is hyper technical as it would defeat very purpose for which the Act of 1986 has been brought. Family Court exercised its jurisdiction under section 3 in view of the judgment of the Apex Court in the case of “Iqbal Bano Versus State of Uttar Pradesh & ors” 2007 CrLR (SC) 554. Therein, it was held that while hearing an application under section 125 CrPC if it is found to be not maintainable than a Magistrate can exercise jurisdiction 3 under section 3 of the Act of 1986. In the light of the judgment of the Apex Court, there is no error in the order. It is prayed that maintenance allowed to the wife-Smt Rana Nahid is on lower side thus the same may be enhanced. Alternatively, if it is found that an application under section 3 of the Act of 1986 can be maintained before the competent Magistrate thus Family Court had no jurisdiction to pass the impugned order then wife-Smt Rana Nihid may be given liberty to file application under section 3 of the Act of 1986 before the competent Magistrate within two months. I have considered rival submissions of learned counsel for the parties and perused the record of the case besides the judgment cited at the Bar. The question involves in the present case is as to whether an application moved under section 125 CrPC before the Family Court can be converted as an application under section 3 of the Act of 1986. To deal with the aforesaid arguments, it would be gainful to quote section 3 of the Act of 1986:- “3.Mahr or other properties of Muslim woman to be given to her at the time of divorce – (i) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to - a) a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband; b) Where she maintains the children born to her 4 before or after her divorce, a reasonable provision and maintenance to be made ;and paid by her former husband for a period of two years from the respective dates of birth of such children; c) an amount equal to the sum of Mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and d) all the properties given to her before or at the time of marriage or after the marriage by her relatives, friends, husband and any relative of the husband or his friends.” (2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be. (3) Where an application has been made under sub- section (2) by a divorced woman, the Magistrate may, if he is satisfied that- (a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provisions and maintenance for her and the children; or (b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such 5 mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman: Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period. (4) If any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973(2 of 1974) and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code. The facts of this case show that application under Section 3 of the Act of 1986 has been entertained by the Family Court in the light of the judgment in the case of Iqbal Bano. The Court below failed to take correct interpretation of the judgment in the case aforesaid. Certain paras of the aforesaid judgment are referred hereunder:- “(1) In the present appeal in the appellant questions correctness of the order passed by a learned Single Judge of the Allahabad High Court dismissing her revision petitioner (Criminal Revision No. 1161 of 1995). The appellant had questioned correctness of the order passed by learned Additional Sessions Judge, Aligarh, setting aside the order dated 7.7.1994 passed by the learned Judicial Magistrate, Aligarh. By the said order dated 7.7.1994 learned Judicial Magistrate had accepted the prayer for grant of maintenance filed by the appellant in terms of 6 Section 125 of the Code of Criminal Procedure, 1976 (in short 'Cr.P.C.'). She directed respondent no. 2 to pay a monthly maintenance of Rs.450/- to the appellant. (3) The learned Magistrate held that there was no material to substantiate the plea of divorce and accordingly maintenance was granted. Order was challenged by filing a revision before the learned Additional Sessions Judge. Stand of the respondent was that after enactment of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 (in short the 'Act'), petition under Section 125 Cr.P.C. was not maintainable. It was also stated that not only in the reply to the notice, there was mention about the utterance of the word “Talaq” “Talaq” “Talaq”, there was mention in the written statement also, amounting to divorce. Learned Additional District and Sessions Judge accepted the plea. He held that after the enactment of the Act, petition by any married muslim woman under Section 125 Cr.P.C. is not maintainable. Such woman can claim maintenance under the Act and not under the Cr.P.C. It was further held that mention was made in the written statement about the divorce purportedly 30 years back and the mentioning about this fact in law amounted to divorce. Accordingly, order of the learned Magistrate was set aside. High Court dismissed the writ petition summarily observed as follows: “Heard leaned counsel for the revisionist. The learned Additional District and Sessions Judge has committed no illegality in modifying the order passed by the Magistrate in declining the maintenance after the date of divorce. The revision has got no force. It is dismissed accordingly.” (9) Proceedings under Section 125 Cr.P.C. are civil in nature . Even if the Court notices that there was a divorced woman in the case in question, it was open to him to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125 Cr.P.C. and claims made under the Act are tried by the same Court. In Vijay Kumar Prasad v. State of Bihar and Ors. (2004 (5) SCC 196), it was held 7 that proceedings under Section 125 Cr.P.C. are civil in nature. It was noted as follows: “14. The basic distinction between Section 488 of the old Code and Section 126 of the Code is that Section 126 has essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing on the date of application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where the husband and wife last resided together. As noted by this Court in several cases, proceedings under Section 125 of the Code are of civil nature. Unlike clauses (b) and (c) of Section 126(1) an application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives.” The perusal of aforesaid paras reveals that application under Section 125 of Cr.P.C. was maintained before the Magistrate, who is otherwise competent to hear the application under Section 3 of the Act of 1986 also. In those circumstances, only a direction was given as is clearly coming out from para 9 of the aforesaid judgment. The case in hand does not contain the same facts as herein the application under Section 125 of Cr.P.C. was made before the Family Court and not before the Magistrate. However, this distinguishing fact could not be noticed by the learned Family Court while entertaining the application under Section 3 of the Act of 1986. The judgment in the case of Iqbal Bano is applicable only when the application under Section 125 of Cr.P.C. is filed before the Court, which can even entertain an 8 application under Section 3 of the Act of 1986. In view of the discussion made above, I find that the order dated 10.12.2008 passed by the learned Family Court deserves to be set aside to the extent, maintenance has been awarded to Smt Rana Nahid. However, remaining part of the order whereby maintenance has been awarded to the son-Mohd Adnan is maintained, challenge to aforesaid has not been pressed. Accordingly, revision petition filed by husband- Shahidul Haq Chisti (revision petition No.221/2009) is partly allowed. Impugned order dated 10.12.2008 passed by the learned Family Court is set aside to the extent, maintenance has been awarded to Smt Rana Nahid. However, remaining part of the order whereby maintenance has been awarded to the son-Mohd Adnan is maintained. So far as revision petition filed by wife-Smt Rana Nahid (revision petition No.295/2009) is concerned, the same cannot be entertained for enhancement of maintenance as the order of the Family Court dated 10.12.2008 has been held to be without jurisdiction so far maintenance has been granted to Smt Rana Nahid. The revision petition is, accordingly, dismissed. 9 Petitioner Smt Rana Nahid would however be at liberty to file an application under section 3 of the Act of 1986 before the competent Magistrate and, if such an application is filed, the competent court will decide the matter without being influenced by the order passed by this court herein. So far as the amount of Rs.1 lakh already paid to Smt Rana Nahid is concerned, same would be kept by her subject to final outcome of the application under section 3 of the Act of 1986, if made by Smt Rana Nahid within a period of two months from today. It is made clear that if no application is filed by Smt Rana Nahid within the aforesaid period, she would return the amount of Rs.1 lakh to the petitioner-husband-Shahidul Haq Chisti within a period of one month thereafter. (MN Bhandari), J. bnsharma