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2009 Supreme(SC) 1809

2009(7) Supreme 652
SUPREME COURT OF INDIA
B. Sudershan Reddy and Deepak Verma, JJ.
Shabana Bano — Appellant
versus
Imran Khan — Respondent
Criminal Appeal No. 2309 of 2009
[Arising out of S.L.P.(Crl.) No.717 of 2009]
Decided on : 4-12-2009

Advocates:
Cases referred :
1. Danial Latifi & Anr. Vs. Union of India(2001) 7 SCC 740, Relied. (Para 24)
2. Iqbal Bano Vs. State of U.P.& Anr. (2007) 6SCC 785, Relied. (Para 24)

IMPORTANT POINT
Even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry.

Headnote:Code of Criminal Procedure,1973 – Section 125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – Petition filed by appellant under Section 125 of Cr.P.C for maintenance – Objections thereagainst by respondent on plea that since appellant had already been divorced in accordance with Muslim Law under the provisions of ‘Muslim Act’, appellant was not entitled to any maintenance after the divorce and after the expiry of the iddat period – Held appellant’s petition under Section 125 of the Cr.P.C. would be maintainable before the Family Court as long as appellant does not remarry – The amount of maintenance to be awarded under Section 125 of the Cr.P.C. cannot be restricted for the iddat period only – Single Judge appeared to be little confused with regard to different provisions of Muslim Act, Family Act and Cr.P.C. and thus was wholly unjustified in rejecting the appellant’s Revision – Even a divorced Muslim woman is entitled to claim maintenance from her divorced husband, as long as she does not remarry – This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women – Impugned orders set aside and quashed – Matter remanded back to Family Court for its disposal on merits – Appeal allowed. (Paras 24 to 32)
       Facts of the Case :
        Basic and foremost question that arose for consideration in present case was whether a Muslim divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 of the Cr.P.C.
       Findings of the Court :
        Held appellant’s petition under Section 125 of the Cr.P.C. would be maintainable before the Family Court as long as appellant does not remarry. The amount of maintenance to be awarded under Section 125 of the Cr.P.C. cannot be restricted for the iddat period only. Single Judge appeared to be little confused with regard to different provisions of Muslim Act, Family Act and Cr.P.C. and thus was wholly unjustified in rejecting the appellant’s Revision. Even a divorced Muslim woman is entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women.Impugned orders set aside and quashed. Matter remanded back to Family Court for its disposal on merits .Appeal allowed.

JUDGMENT

Deepak Verma, J.—

1. Leave granted.

2. Appellant Shabana Bano was married to the respondent Imran Khan according to Muslim rites at Gwalior on 26.11.2001. According to the appellant, at the time of marriage, necessary household goods to be used by the couple were given. However, despite this, the respondent-husband and his family members treated the appellant with cruelty and continued to demand more dowry.

3. After some time, the appellant became pregnant and was taken to her parents’ house by the respondent. The respondent threatened the appellant that in case his demand of dowry is not met by the appellant’s parents, then she would not be taken back to her matrimonial home even after delivery.

4. Appellant delivered a child in her parental home. Since even after delivery, respondent did not think it proper to discharge his responsibility by taking her back, she was constrained to file a petition under Section 125 of the Code of Criminal Procedure (for short, ‘Cr.P.C.’) against the respondent in the Court of Family Judge, Gwalior. It was averred by the appellant that respondent has been earning a sum of Rs. 12,000/- per month by doing some private work and she had no money to maintain herself and her new-born child. Thus, she claimed a sum of Rs.3000/- per month from the respondent towards maintenance.

5. On notice being issued to the respondent, he denied all the contents of the petition filed by the appellant under Section 125 of the Cr.P.C. except admitting his marriage with the appellant.

6. Preliminary objections were raised by the respondent that appellant has already been divorced on 20.8.2004 in accordance with Muslim Law. Thus, under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as ‘Muslim Act’), appellant is not entitled to any maintenance after the divorce and after the expiry of the iddat period. It was also contended by him that appellant herself is earning Rs.6,000/- per month by giving private tuitions and is not dependent on the income of the respondent, thus, she is not entitled to any maintenance. It was also contended by respondent that appellant had gone to her parental home on her own free-will and accord, after taking all the jewellery and a sum of Rs.1000/- and despite notice being sent, she has not returned to her matrimonial home. Thus, for all these reasons, she is not entitled to receive any amount of maintenance.

7. The Family Court was pleased to frame issues and parties went to trial. After considering the matter from all angles, the learned Judge of the Family Court partly allowed the appellant’s application as under:

“(1) respondent shall pay Rs.2000/- per month as maintenance allowance to the petitioner from 26.4.2004, date of institution of petition to the date of divorce, i.e. 20.8.2004 and thereafter from 20.8.2004 to the period of iddat.

(2) respondent will bear cost of the suit of himself as well as of petitioner.”

8. Thus, the claim of the appellant was allowed to the extent of Rs. 2,000/- per month towards maintenance from the date of institution of the petition till the date of divorce, i.e., 20.8.2004 and further from the said date till the expiry of iddat period but amount of maintenance thereafter was denied.

9. The appellant was, therefore, constrained to carry the matter further by filing Criminal Revision No. 285 of 2008 before the Gwalior Bench of the High Court of Madhya Pradesh. The said Criminal Revision came to be disposed of by learned Single Judge on 26.9.2008 and the order of the Family Court has substantially been upheld and consequently, the appellant’s Revision has been dismissed. It is this order and the order passed by the Family Court which are the subject-matter of challenge in this appeal by grant of special leave.

10. At the outset, learned counsel for the appellant contended that learned Single Judge has gravely erred in dismissing the appellant’s Revision on misconception of law on the ground tha

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2009 Supreme(SC) 1809

2009(7) Supreme 652SUPREME COURT OF INDIA B. Sudershan Reddy and Deepak Verma, JJ. Shabana Bano — AppellantversusImran Khan — RespondentCriminal Appeal No. 2309 of 2009[Arising out of S.L.P.(Crl.) No.717 of 2009]Decided on : 4-12-2009

IMPORTANT POINT Even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry.

2009(7) Supreme 652
SUPREME COURT OF INDIA
B. Sudershan Reddy and Deepak Verma, JJ.
Shabana Bano — Appellant
versus
Imran Khan — Respondent
Criminal Appeal No. 2309 of 2009
[Arising out of S.L.P.(Crl.) No.717 of 2009]
Decided on : 4-12-2009

IMPORTANT POINT
Even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry.