Idea Transcript
HIGH COURT OF CHHATTISGARH AT BILASPUR -------------------------------------------------------------------------------------------------Single Bench: Hon'ble Shri Justice P. Sam Koshy -------------------------------------------------------------------------------------------------Criminal Revision No.348 of 2012 Applicant
Smt Rani Mahalka Nisha Khan VERSUS
Non-applicant
Abdul Javed Khan
-------------------------------------------------------------------------------------------------Present: Shri Pankaj Agrawal, counsel for the applicant. Shri Raghavendra Pradhan, counsel for non-applicant. -------------------------------------------------------------------------------------------------Oral Order (07.05.2014) By way of the instant revision, the applicant has challenged the judgment dated 3.3.12 passed by Principal Judge, Family Court, Raipur in MJC No.478/2011 whereby the court below had rejected the claim
application filed by the applicant under Section 125
Cr.P.C. 2.
Facts leading to the instant case are that the applicant and the non-applicant belong
to the Muslim community by religion and were married on 2.6.02. It is contended that as on 7.12.10, the non-applicant i.e. had given Talak-ul-bain (divorce) to the applicant. Thereafter, the applicant had filed an application under Section 125 Cr.P.C and the matter was registered as MJC No.478/2011 before the Principal Judge, Family Court, Raipur. The Principal Judge, Family Court, Raipur ultimately vide judgment dated 3.3.12, rejected the claim application of the applicant on the ground that the proceedings for maintenance under the provisions of Section 125 Cr.P.C are not maintainable on account of the provisions of The Muslim Women (Protection of Rights on Divorce) Act, 1986 (henceforth 'the Act of 1986). Accordingly, the application under Section 125 Cr.P.C preferred by the applicant was rejected at the initial stage itself without entering into the merits of the case leading to the filing of the present revision. 3.
Counsel for the applicant relied upon the decision of the Hon'ble Supreme Court
reported in the matter of Shabano Bano vs. Imran Khan reported in (2010) 1 SCC 666 wherein the Hon'ble Supreme Court dealing with somewhat similar issue, has in very categorical terms held that the proceedings under Section 125 Cr.P.C initiated by a
divorced Muslim woman would be maintainable and according to the counsel for the applicant, in the light of the said judgment of the Hon'ble Supreme Court, the order passed by the court below is not proper, legal and justified and the same deserves to be set aside. 4.
Per contra, counsel for the non-applicant argued that the Supreme Court in the said
judgment of Shabano Bano vs. Imran Khan (supra) has not dealt with the issue of whether in the light of enactment of the Act of 1986, there is a specific condition for obtaining maintenance by a divorced Muslim woman under the provisions of the said Act of 1986 and the said Act having an overriding effect, the provisions of Section 125 Cr.P.C would not be maintainable and thus the Supreme Court having not dealt and discussed the said issue in the judgment of Shabano Bano vs. Imran Khan (supra) cited by counsel for the applicant, the judgment of the court below is proper and justified to that extent. He further submits that those issues which have not been discussed and considered by the Hon'ble Supreme Court in the judgment of Shabano Bano vs. Imran Khan (supra) the objection to this effect can be raised in the subsequent proceedings. That only because in the said case, the Supreme Court had held that the proceedings under Section 125 Cr.P.C are maintainable would not by itself make it a thumb rule that the divorced Muslim woman who seek maintenance and can apply for maintenance under Section 125 Cr.P.C. If such an analogy is to be accepted, then the very purpose of enacting a separate provision under the Act of 1986 giving provision for grant of maintenance to divorced Muslim woman would become redundant and accordingly, prayed that the order passed by the court below being justified, the revision petition deserves to be rejected. 5.
Having considered the rival contentions put forth by counsel for either side and it is
trite to refer to the decisions rendered by Hon'ble Supreme Court first, in the case of Danial Latifi and another vs. Union of India reported in (2001) 7 Supreme Court Cases 740 wherein the Supreme Court in paragraphs 30 and 31 has held as under:“30. A comparison of these provisions with Section 125 Cr.P.C will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us form the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of Section 125 Cr.P.C is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.
31. Even under the Act, the parties agreed that the provisions of Section 125 Cr.P.C would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125 Cr.P.C would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional.” 6.
After the said judgment of Danial Latifi and another vs. Union of India (supra), the
Hon'ble Supreme Court in another matter of Iqbal Bano vs. State of U.P and Another reported in (2007) 6 SCC 785 whereby dealing with again on somewhat similar facts and circumstances, the Hon'ble Supreme Court had categorically held that the proceedings under Section 125 Cr.P.C are civil in nature. Even if the Court noticed that there was a divorced woman as in the case in question, it was open to it 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. 7.
A plain reading of the above referred two judgments would make it clear that firstly,
the proceedings under Section 125 Cr.P.C are of civil nature and that secondly, the said proceedings claiming for maintenance by divorced Muslim woman are to be treated as beneficial legislation and accordingly, the Hon'ble Supreme Court in the above referred two issues have categorically held that the proceedings for grant of maintenance under Section 125 Cr.P.C cannot be drawn at the threshold holding it be not maintainable. Relying upon the above referred two decisions, the Supreme Court decided the case of Shabano Bano vs. Imran Khan (supra) wherein while dealing with a similar situation, the Supreme Court has in paragraphs-23 & 24 held as under:“23.
Cumulative reading of the relevant portions of the
this Court in Danial Latifi and Iqbal Bano even a divorced Muslim her
judgments of
would make it crystal clear that
woman would be entitled to claim maintenance from
divorced husband, as long as she does not remarry. This
beneficial piece of legislation, the benefit
thereof
must
being
accrue
to
a the
divorced Muslim women.” “24.
In the light of the aforesaid discussions, the impugned orders are
hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her
husband under Section 125 Cr.P.C after the expiry of period of iddat also, as long as she does not remarry. As a necessary consequence thereof, the matter is remanded to the Family Court as Gwalior for its disposal on merits at any early date, in accordance with law.” 8.
The Supreme Court has in very categorically terms, held that firstly the divorced
woman would be entitled for claiming maintenance from her divorced husband as long as she does not remarry and it has also been held that the proceedings under Section 125 Cr.P.C, the application would be maintainable. Another aspect which is to be considered is that the judgments which have emphasized that the proceedings under Section 125 always have to be treated as a piece of beneficial legislation and that the benefit so accrued under the statutory provisions should not be denied to a member only on hypertechnicalities in respect of the maintainability of the proceedings particularly when the specific enactment and any other law also provides for grant of maintenance. It is keeping this fact in mind that the Supreme Court decided Shabano Bano's case (supra) relying upon the judgment of Danial Latifi as well as Iqbal Bano (supra) and the High Court of Chhattisgarh also in criminal revision No.2/2001 decided on 4.4.12 had relied upon the judgment of Hon'ble Supreme Court in the case of
Shabano Bano and held that the
maintenance under Section 125 Cr.P.C filed by the divorced Muslim woman would be maintainable before the Family Court. Even for argument sake if the submissions put forth by counsel for non-applicant is to be accepted, even then if we see the principles laid down by the Hon'ble Supreme Court in the case of Iqbal Bano at best, it would have been a case where the court would have continued with the proceedings for grant of maintenance and the said application for grant of maintenance be treated as an application filed under the provisions of Act of 1986 rather than rejecting it on the ground that it is not maintainable. 9.
Thus, for the foregoing reasons, the order passed by the court below is not
sustainable and the same is set aside and the matter is remitted back to the Family Court, Raipur with a direction that the said court would further proceed with the case and decide it on its merits. Liberty would be open to the parties to raise appropriate objection in respect of any legal issues if the parties so desire to raise before the court below. 10.
With the above observation, the instant criminal revision is disposed of. JUDGE
Head Note Even though the provisions of the Muslim Women Act 1986 has a provision of claiming maintenance yet an application filed u/s 125 CrPC cannot be rejected holding it not maintainable