Shahanazbegum Kadarbasha Shaikh & another vs Kadarbasha Usman Shaikh & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(Bom) 91

IN THE HIGH COURT OF BOMBAY
N.V. Dabholkar, J.
Shahanazbegum Kadarbasha Shaikh another.... Appellants.
Versus
Kadarbasha Usman Shaikh another.... Respondents.
Criminal Writ Petition No. 1359 of 1994, decided on 5-2-2001.
Advocates appeared :
B.A. Vora, for petitioners.
S.C. Halli, for respondent No. 1 and Smt. Kejariwal, A.P.P., for the respondent State.

Headnote:Sections 125 and 127-Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3(1)(a)Maintenance awarded-During pendency of proceedings-Magistrate held that all other order prior to divorce to get ceased to have effect-Fresh proceedings initiated under Section 3 of Muslim Women Act. Modification in order by session Judge-Granting maintenance till divorce commenced -Held-Earlier proceedings were as wife, may not be amenable vide Section 3 (1)(a) of Muslim Women Act-For subsequent period she shall be entitled for meher etc. because in Act 1986 there is no provision for limitation.-As a second limb of argument, it is also contended that since the writ petition challenging the revision is pending, it should beheld that the application under Section 125 of the Code is still pending and the same will have to be treated as an application under the Act of 1986. Since the petitioner has obtained all the orders in the capacity of wife, whose marriage is still subsisting the said order cannot enjoy protection by virtue of the reply to question No. 2 or direction (c). "divorced woman" contemplated by these is the one who has obtained maintenance under Section 125 of the Code in her capacity as "divorced woman". The rights of divorced women which have been many determined and taken the shape of judgments or orders of Court of law prior to the coming into force of the Muslims Women Act will have to remain untouched and protected. Such an interpretation is fully justified also in view of the fact that the Act of 1986 enables only divorced woman to seek maintenance by an application before the appropriate forum, as against the provisions contained in Chapter IX of the Code which entertain the applications by both; a wife who is or is not divorced. By virtue of Section 7 regarding transitional provisions, the applications pending on the date of coming into force of the Act were to be disposed of as if the applications under the Act of 1986. Consequently the orders contemplated by last three categories would be the orders under the Act of 1986 and not under Chapter IX of the Code. The wife in this category has obtained order of maintenance in the capacity of wife while marriage is subsisting. The Act of 1986 has come into force thereafter. The divorce having followed coming into existence of the Act of 1986 and the husband having applied under Section 127 of the Code by Criminal Application No. 242 of 1990, the changed status of wife as "divorced woman" was available as a ground to the husband to seek closure of the order of maintenance under Section 125 of the Code, in view of the personal law of the parties.

JUDGMENT - N.V. DABHOLKAR, J.:---This writ petition arises out of the maintenance proceedings under Chapter IX of the Code of Criminal Procedure, 1973 on the file of the Judicial Magistrate First Class, Solapur. Petitioner No. 2 is the son of the petitioner No. 1 and respondent No. 1. Petitioner No. 1 and respondent No. 1 were married on 29-5-1997.

The petition prays to set aside the order passed by the Assistant Sessions Judge, Solapur on 4-4-1994 in Criminal Revision No. 137 of 1992 and award maintenance in favour of the wife.

2. The admitted facts in this contest for the maintenance are as follows :-

First legal battle for the maintenance took place in the form of application by wife under section 125 of the Code of Criminal Procedure, 1973 being Application No. 115 of 1980. (Henceforth, the parties are referred to as the wife, husband and child for the sake of brevity). The application concluded in favour of the petitioners and maintenance at the rate of Rs. 75 and Rs. 25 per month was awarded in favour of the wife and child respectively. This was sometime in the year 1981. Admittedly this decision was not challenged by the husband.

The Application No. 142 of 1984 was filed under section 127 of the Code of Criminal Procedure for enhancement and maintenance was enhanced to Rs. 125 and Rs. 50 in favour of the wife and child respectively. This was in the year 1984.

Lastly, Criminal Misc. Application No. 15 of 1988 was filed on 13-1-1988 and it was decided on 25-9-1989 by which maintenance was enhanced to Rs. 300/- and Rs. 150/- respectively.

3. On 3-11-1990, husband filed Criminal Misc. Application No. 242 of 1990 under section 127 of the Criminal Procedure Code, 1973, (for easy reference, hereinafter, referred to as "the said Code"). He claimed that he had divorced wife on 5-2-1990. The talaknama was reduced into writing. Therefore, after commencement of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for the sake of brevity, hereinafter, referred to as the "Act of 1986") he was not liable to pay the maintenance to the wife and the son. Therefore, he had prayed for cancellation of the order of maintenance passed in favour of the wife and the child on 25-9-1989 upon conclusion of Criminal Misc. Application No. 15 of 1988.

This application was decided by the Judicial Magistrate, First Class, Solapur on 2-5-1992, who was pleased to quash the maintenance order in toto. The wife had opposed the petition, inter alia, contending that talak was not pronounced thrice and hence according to Muslim Law and custom, the same was not legal and valid. It was also not communicated to wife and therefore, the talak being bad in law, the husband; it was claimed; cannot be exonerated from his liability to pay the maintenance as ordered in Criminal Misc. Application No. 15 of 1988.

The learned Magistrate observed that in view of the provisions of Mohammedan Law, talak pronounced in absence of wife is also valid though not communicated to her. However, for the purposes of dower, the communication was necessary failing which, she was entitled to alimony till she was informed of the divorce. Since the talaknama was reduced into writing, which was produced before the Magistrate at Exhibit 21, the learned Magistrate held that the husband had divorced the wife, but she would be entitled to maintenance during the period of Idat, but if the talak was not communicated she was entitled to maintenance even beyond the period of Idat till she was informed of divorce.

Relying upon the judicial pronouncement of this High Court reported at 1989 Cri.L.J. 133 (Maheboob Khan v. Parveen Bano)1, the learned Magistrate observed that neither the order passed under section 125 of the Code of Criminal Procedure nor the liability already incurred earlier to the Act of 1986 was saved. Inevitable consequence, therefore, was that the rights under section 125(1) of the Code as also section 125(3) were lost and therefore, there was no question of enforcing the ord

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