The judgment emphasizes the assurance of dignity of women under the Constitution and the duty of citizens to renounce practices derogatory to the dignity of women, and highlights the need to consider the mode of divorce in consonance with the dignity of women under the Muslim law.

Hari Nath Tilhari, J.—Heard Sri Pramod holding brief for Sri Ashok R. Kalyanashetty, learned Counsel for the Petitioner.

2. This petition arises from the order dated 31.8.1996 passed by the Judge, Family Court, Bijapur, rejecting the Petitioner's application for enhancement of maintenance taking the view that in view of provisions of Muslim Women (Protection of Rights on Divorce) Act, 1956 and in particular Section 3 thereof, a Muslim woman is not entitled for an order of maintenance after the period of Idat. The Court observes that in the application the Petitioner has described herself as Mahaboobbi, w/o. Ibrahimsab Chavegav, since divorced d/o. Rajesab Tasewale of Jorapur-path, Bijapur. He opined that when it is admitted that she is a divorced wife, she has no right to maintenance beyond the period of Idat and more so, the provisions of Sections 125 to 128 Code of Criminal Procedure will not apply. The Petitioner has come up in revision from this order of the Court below.

3. It has been contended before me that it was the duty of the learned Civil Judge to have applied its mind firstly to the definition of expression "divorced woman". and unless it is established that the woman concerned after marriage had been divorced in accordance with Muslim law by her husband, she cannot be said to be divorced and this involves a mixed question of law and fact. The question whether divorce had been done in accordance with Muslim law or not is a question of law and a wrong description by illiterate persons would amount to condemnation of a question of law. The learned Counsel contended, as such, in order to determine the question whether application was maintainable or not, as such in this case the Court has to examine the question whether the Petitioner-applicant had been divorced in accordance with the principles of Muslim law as applicable in India keeping in view the provisions of Preamble of the Constitution relating to dignity of women and Article 372 of the Constitution which provides that subject to other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. The learned Counsel contended that the Preamble of the Constitution which talks of assuring the dignity of individual and Article 51(a) imposes a duty on every citizen to renounce practices which are derogatory to the dignity of women. The provisions of law if derogatory to the dignity of women, whether of Muslim or of Hindu, such law cannot be taken to have been continued in operation. The learned Counsel contended that in this view of the matter it has to be examined by the trial Court whether the divorce given if any to the Petitioner was in accordance with the principles of Muslim law as adopted and as declared to remain in operation, that if it was not in accordance with law, the mere fact that some ritual or something has been done to divorce, that would not amount to divorce. Therefore, if the Respondent alleges the application to be not maintainable on the ground that the Petitioner was a divorced woman and she was divorced in accordance with Muslim law, he has to prove the same and the Court has to examine it. The learned Counsel contended, as such, the Court below acted illegally without applying its mind to the question whether the applicant was a woman divorced in accordance with Muslim law which is declared to be law in the territory of India and continued to be in operation after coming into force of the Constitution of India and illegally refused to exercise the jurisdiction vested in it by law by rejecting the application.

4. I have applied my mind to the contentions raised by the learned Counsel for the Petitioner.

5. There appears to be much force in these contentions. Constitution is the supreme law of this country. The Preamble of the Constitution f