Shaikh Babbu s/o. Sk. Khutbuddin vs Sayeeda Masarat Begum and another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 447

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.H. Marlapalle, J.
Shaikh Babbu s/o. Sk. Khutbuddin..... Petitioner.
Versus
Sayeda Masarat Begum another..... Respondents.
Criminal Revision Application No. 17 of 1997, decided on 1/6/7/8 23-7-1999.
Advocates appeared :
Gulam Mustafa, for the petitioner.
V.D. Sapkal, for respondents Nos. 1 and 2.

Headnote:Section 125, Cr PC-Muslim Woman (Protection of Rights on Divorce) Act, 1986, Sections 3 and 4 - Family Courts Act, 1984, Section 7 sub-section (2)-Divorce of appellant/petitioner-Contention-Refusal by wife to accept document of divorce entered into register-Application by wife under Section 125, Cr PC-Claim of maintenance for herself and son - Opposed be appellant on merit and on jurisdiction-Maintenance claim of wife and her son allowed by Family Court Judge reliance places on 6 Allabuksh Karim Saikh v. Noor Jahan Allabuksh Shaikh, 1994 (II) Mah LJ 1376-Preliminary points raised by appellant Family Court Act brought into force on 1.12.1986-Sub-section (2) of Section 7 States of jurisdiction - Section 8 excludes jurisdiction of Criminal Courts Institution of proceeding under Sections 3 and 4 cannot lie before Family Court and must file before competent Magistrate in Noor Jamals case-In Allabukshs case-A Muslim Woman has right to invoke the provisions of Section 125, Cr PC Family Court empower to entertain such claim wherever they are established-Judgment of Allabuksh cannot be per-In curium-Finding in Allabuksh case is not finding is not tenable-Law laid down by constitutional Court cannot be made in effective-Muslim Woman Act is act to protect the rights of Muslim Divorced Woman-There is no provision not to file an application under Section 125, Cr PC-Absence of any provision in act to nullify the order passed by Magistrate under Section 125, Cr PC Provisions of Muslim Woman Act are available to divorced Muslim Woman for claiming maintenance from husband.-Admittedly, a Muslim divorced woman cannot cease to be a citizen of this country for some period of her life just because she is a divorced woman and, therefore, the contention that the provisions of Sections 125 to 128 of the Criminal Procedure Code are not applicable to her when she is a divorced woman do not stand to any logic. The law laid down by the Apex Court in the case of Shah Bano has given a right to a divorced Muslim woman to claim maintenance under Section 125 of Cr PC against her former husband and there is nothing in the Muslim Woman Act, 1986 which State that the provisions of Section 125 of Cr PC are not available to such a woman as soon as the said Act was brought into force. It cannot be inferred from the provisions of the Muslim Act that it was intended for the purpose of denying the benefit of claim under Section 125 of Cr PC to a divorced Muslim woman. The contentions raised by the petitioners that the remedy for the claim of maintenance against the former husband is not available to a divorced Muslim woman during her status as a divorced wife and otherwise the provisions of Section 125, Cr PC are applicable to her for rest of her life, lead to violation of her constitutional rights guaranteed under Article 14, 15 and 21 of the Constitution of India. It cannot be accepted in law that the provisions of the general rule viz. the Criminal Procedure Code are not applicable to a female Muslim citizen of this country only for the period when she is a divorced wife.
       The applicant on the other hand urged that the word "notwithstanding" should be read as "over riding" and if so read, it would be clear that the provisions of the Muslim Woman Act and more particularly provisions of Sections 3 and 4 of said Act override the effect of Section 125 of Cr PC, so long as claimant-divorced wife remains to be unmarried. If such an interpretation is accepted, to say the least, it would lead to discrimination, violating the provisions of Article 14 of the Constitution of India and as observed earlier, while interpreting the provisions of a welfare and social legislation, the words therein must be given their natural meaning and more particularly the benefits of a, large section of a society. Even otherwise, if the meaning suggested by the learned counsel for the appellant is to be accepted, the opening word of Section 4 would be "save as otherwise provided" and this would indicate a saving clause. Such a clause does not appear in the Muslim Woman Act. In addition, if the interpretations as sought to be placed by the learned counsel are accepted, it would lead to denying the rights guaranteed under Article 21 of the Constitution, to a divorced Muslim woman. Such an interpretation is, thus, far fetched and against our constitutional mandate.
       It must be, therefore, held that the provisions of the Muslim Woman Act are available to a divorced Muslim Woman for claiming maintenance from her former husband, in addition to the provisions of Chapter IX of the Criminal Procedure Code and they are not in exclusion of each other. As stated earlier, there is no challenge to the maintenance granted for the child, in view of the law laid down by the Apex Court in the case of Noor Saba Klzatoon (supra) and the amount of maintenance cannot be called unreasonable, especially when the learned Judge of the Family Court has accepted the monthly income of the applicant as Rs. 1,500/ - at the relevant time. The challenge to the impugned order is, therefore, devoid of merits and the revision application is hereby dismissed. Interim order passed earlier stands vacated.
       Chapter I, Rule 7-Single Judge not agreeing with earlier view of Division Bench-Modality to be followed.-If a single Judge of High Court does not agree with the earlier view taken by a Division Bench, he has the authority to say so and by invoking powers under Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules, 1960 pass an order giving his opinion and place the matter before the Chief Justice, who shall make such an order thereon as he shall think fit. Rule 7 of the said Rules does not give powers to the single Judge to himself pass.
       Muslim Women (Protection of Rights on Divorce) Act, 1986
       Section 1-Scope-Preamble -Act enacted to protect rights of Muslim divorced women-Not to undergo effect of constitutional Bench decision of Supreme Court in "Shah Bano case" reported in AIR 1985 SC 945 : AIR 1996 SC 2423; AIR 1997 SC 3280; 1993 (1) Mh LJ 252, Referred and AIR 1997 SC 3127-Relied.
       Sections 3 and 4-Remedy of claiming maintenance under - Divorced Muslim woman has an option to implead Wakf Board for seeking Orders of Magistrate under Section 4-Only Wakf Board at Aurangabad in State of Maharashtra out of six revenue divisions presently constituted-In the circumstances remedy of claiming maintenance under Muslim Women (Protection Of Rights on Divorce) Act, is an illusion, at least for the time being.
       1713 -Section 4-Non obstante clause occurring in Section 4 means "Irrespective off"-Section 4 of the Muslim Women (Protection of Rights on Divorce) Act begins with a non obstante clause "notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force". While interpreting such non obstante clause, is meaning is required to be gathered depending upon each situation and the purpose of the statute. Keeping in mind the aims and objects in enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986, as they appear in the preamble it will have to be held that the word "notwithstanding" means "irrespective of". (1996) 4 SCC 76 and (1999) 4 SCC 86, Relied on.
       Section 4-Criminal Procedure Code (2 of 1974), Sections 125 to 128-Provisions of Chapter IX of the Criminal Procedure Code regarding maintenance are available to a divorced Muslim wife in spite of Muslim Women (Protection of Rights on Divorce) Act.-The provisions of Muslim Women (Protection of Rights on Divorce) Act are available to a divorced Muslim woman for claiming maintenance from her former husband, in addition to the provisions of Chapter IX of the Criminal Procedure Code and they are not in exclusion of each other. AIR 1988 Guj 141 and 1994 (2) Mh LJ 1376, Relied on.
       [Shaikh Babbu v. Sayeda Begum, 1999 (3) Mh LJ 465 (Born)].
       Sections 5 and 4-Section 5 applicable to application under Section 3(2) and not to proceedings under Section 4.- The provisions of Section 5 of the Muslim Women (Protection of Rights on Divorce) Act are applicable only to an application under Section 3(2) of the Act and the said provisions of exercising option by a divorced Muslim woman and her former husband are not available for the proceedings instituted under Section 4 or under Section 3(1) of the said Act.

JUDGMENT - B.H. MARLAPALLE, J.:---Petitioner - the revision applicant was married to respondent No. 1 Sayeda Masarat Begum as per Muslim religion on 2nd July 1994. Out of the said wedlock, the respondent No. 2 son was born on 1st July 1995. The applicant husband gave divorce to respondent No. 1 on 24-10-1996 in the presence of two witnesses and the Head Kazi at Aurangabad. It is contended by the applicant husband that the wife refused to take the document of divorce entered in the register. The wife filed an application under section 125 of the Code of Criminal Procedure in the Family Court on 27-9-1996 and claimed maintenance for herself and for her son (Petition No. E-319/96). The husband opposed the said claim both on merits as well as on the point of jurisdiction. After hearing both the parties, the learned Judge of the Family Court on relying on a judgment of this Court (D.B.) in the case of (Allabuksh Karim Shaikh v. Noorjahan Allabuksh Shaikh)1, 1994(II) Mah.L.J. 1376 allowed the claim of the wife and son by the impugned judgment and order dated 28-12-1996.

2.Shri Gulam Mustafa, learned Counsel appearing for the applicant, has raised, during the course of his arguments, the following preliminary points:

i) The law laid down by this Court in the case of Allabuksh (supra) is not a good law and is a judgment per incurium as the earlier judgments of two different Division Benches in the case of (Faridabano Shahabuddin Kadri and another v. Shahabuddin Muzzaroddin Kadri and another)2, 1993(2) Bom.C.R. 242 and in the case of (Noor Jamaal Habib Momin v. Haseena w/o. Noor Jamaal)3, 1993(1) Mh.L.J. 749 were not referred to and considered.

ii) This Court in the case of Allabuksh (supra) gave findings on an issue which was not a subject matter of challenge and findings on such issue cannot operate as a precedent in view of the judgment of the Supreme Court in the case of (High Court of Judicature at Bombay through its Registrear v. Shirishkumar Rangrao Patil and another)4, 1998(1) Bom.C.R. 309

iii) In the case of (Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh)5, 1997(3) Bom.L.R. 467, a learned Single Judge (Bhairavia, J.) has already held that the judgment in the case of Allabuksh is not a good law and has referred the issue to a larger Bench and, therefore, this Court should not proceed to decide the instant matter and instead refer to the learned the Chief Justice for constitution of a Full Bench.

iv) On the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, (for short referred to as the M.W. Act), the law laid down by the Supreme Court in the case of (Mohd. Ahmed Khan v. Shah Bano Begum and others)6, A.I.R. 1985 S.C. 945 does not hold field regarding the rights of divorced Muslim woman to seek maintenance against her husband under Chapter IX of the Criminal Procedure Code.

v) After the enactment of the M.W. Act, a divorced Muslim woman is precluded from filing an application for maintenance under Chapter IX of the Code of Criminal Procedure against her husband in view of the provisions of section 3 and 4 of the said Act.

3.The M.W. Act is enacted to protect the rights of Muslim women who have been divorced by or have obtained divorce from their husbands and to provide for matter's connected therewith or incidental thereto. There is no dispute that so far as the rights of the children are concerned, for claiming maintenance against the father, they are governed by the provisions of section 125 of Cr.P.C. and the provisions of the M.W. Act in any manner do not come in their way from claiming such a right. This position in law has been well recognized by the Supreme Court in the case of (Noor Saba Khatoon v. Mohd. Quasim)7, 1998(1) Bom.C.R. 340. Section 3 of the M.W. Act inter alia provides that the husband is liable to pay a reasonable and fair maintenance amount to the divorced wife within the Iddat period as well as where she herself maintains the children born to her before or after her divorce, a reasona

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1999 Supreme(Bom) 447

Cases Referred (10)