Important Point
In a proceeding u/s 125, Cr. PC if the Court notices that there was a divorced woman in the case in question, it would be open to it to treat it as a petition under the Act considering the beneficial nature of the legislation; more so because proceedings under Section 125 Cr. PC and claims made under the Act are tried by the same Court.

Headnote:Muslim Woman (Protection of Rights on Divorce) Act, 1986 – Section 3 – The First Revisional Court’s view that no Muslim woman can maintain petition under Section 125 Cr. P.C. is clearly unsustainable – The Act only applies to divorced women and not to a woman who is not divorced – Equally unsustainable are the conclusions that the statement in the written statement about alleged divorce 30 years by utterance of the words “Talaq” “Talaq” “Talaq” three times is sufficient in law – The conclusions about the Mehr having been paid and the Iddat period is over has no relevance. (Paras 6 and 7)
       (2002) 7 SCC 518; (2001 (7) SCC 746); (2004) 9 SCC 616 – Relied upon.
       Code of Criminal Procedure, 1973 – Section 125 – Proceedings under Section 125 Cr. PC being 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; more so because proceedings under Section 125 Cr. PC and claims made under the Act are tried by the same Court– Impugned order set aside and matter remitted back. (Para 9).
       (2004) 5 SCC 196 – Relied upon.
       Facts of the case :
       The appellant had married respondent no.2 in the year 1959 and a child was born to them in 1966. Unfortunately the son died in the year 1991. Respondent no.2, who was living separately from the appellant, stopped coming to the house of the appellant where she was staying and also did not pay anything for her subsistence. Therefore, an application under Section 125 Cr.P.C. was filed on 21.2.1992. Before that she had sent notice demanding payment of maintenance. Respondent no.2 replied to the notice and denied his liability to pay maintenance. On 28.5.1992 written statement was filed wherein it was stated that long back he had divorced his wife by utterance the word “Talaq” “Talaq” “Talaq”. It was further stated that there was severance of marital ties between them for years as the divorce was over by the utterance of the word “Talaq” thrice and he had also paid Mehr and the Iddat period was over the claim was not acceptable. He also stated he had contacted the second marriage.
       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.
       Findings of the Court :
       The First Revisional Court’s view that no Muslim woman can maintain petition under Section 125 Cr. P.C. is clearly unsustainable. The Act only applies to divorced women and not to a woman who is not divorced.
       Equally unsustainable are the conclusions that the statement in the written statement about alleged divorce 30 years by utterance of the words “Talaq” “Talaq” “Talaq” three times is sufficient in law.
       The conclusions about the Mehr having been paid and the Iddat period is over has no relevance.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.In the present appeal the appellant questions correctness of the order passed by a learned Single Judge of the Allahabad High Court dismissing her revision petition (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 Section 125 of the Code of Criminal Procedure,1973 (in short ‘Cr.P.C.’). She directed respondent no.2 to pay a monthly maintenance of Rs.450/- to the appellant.

2.Background facts in a nutshell are as follows :

The appellant had married respondent no.2 in the year 1959 and a child was born to them in 1966. Unfortunately the son died in the year 1991. Respondent no.2 who was living separately from the appellant stopped coming to the house of the appellant where she was staying and also did not pay anything for her subsistence. Therefore, an application under Section 125 Cr.P.C. was filed on 21.2.1992. Before that she had sent notice demanding payment of maintenance. Respondent no.2 replied to the notice and denied his liability to pay maintenance. As noted above, on 21.2.1992 application was filed claiming maintenance of Rs.500/- p.m. It was stated that that the income of the respondent no.2 was Rs.4,000/- per month. On 28.5.1992 written statement was filed wherein it was stated that long back he had divorced his wife by utterance the word “Talaq” “Talaq” “Talaq”. It was further stated that there was severance of marital ties between them for years as the divorce was over by the utterance of the word “Talaq” thrice and he had also paid Mehr and the Iddat period was over the claim was not acceptable. He also stated he had contacted the second marriage.

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 learned 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.”

4.Learned counsel for the appellant submitted that the approach of the First Revisional Court was clearly erroneous. There is no bar on Muslim woman filing petition in terms of Section 125 Cr.P.C. The Act only applies to divorced woman and not the Muslim married women who are not divorced. Further, mere statement in the written statement about some divorce long back does not meet the requirement of law. The finding of the First Revisional Court about payment of Mehr has no relevance.

5.Mr. S.W.A. Qadri, learned counsel for the State of Utta

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2007 Supreme(SC) 877

Cases Referred (2)