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KARNATAKA HIGH COURT
Jawad Rahim, J.
Musthaq Nayak —Petitioner
versus
Dr. Salma Praveen —Respondent
Revision Petition No. 60 of 2009 with Revision Petition Family Court No. 15 of 2012
Decided on 7.2.2011
Counsel for the Parties:
For the Petitioner: M/s. Nag Associates and Sri Abubacker Shafi, Adocates.
For the Respondent:Sri Shanmukhappa, Advocate.
IMPORTANT POINT
A divorced Muslim woman can still maintain a petition under Section 125 of Cr.P.C. claiming maintenance after divorce from her husband. There is, therefore, legal permissibility for proceeding with a petition under Section 125 of CrPC by a Muslim divorced woman.
Headnote:Criminal Procedure Code, 1973—Section 125—Muslim Women (Protection of Rights on Divorce) Act, 1986—Section 3(2)—Divorced Muslim Woman—Right to maintenance—Section 3 of the Act confers right enforceable against husband for maintenance even after divorce unless reasonable and fair provision is made —Even if a divorced woman applies under Section 125 CrPC it is open to Court to try it as an application under the Act—Impugned order restricting grant of maintenance in favour of respondent only for the period of Iddat was unsustainable.
Held: Thus, the Constitutional Bench of the Apex Court upheld the validity or vires of the Act declaring that a woman who is divorced no doubt would be governed by the provisions of the Act, but it should not be construed as less beneficiary than the provisions of Chapter IX of Cr.P.C. Consequently, it held ‘to hold the husband is liable to pay maintenance only for Iddat period would result in unreasonable discrimination against divorced Muslim woman and would render the Act violative of Articles 14, 15 and 21 of the Constitution’.
It further held ‘Section 3 confers a right enforceable against the husband for maintenance even after divorce, unless reasonable and fair provision is made’.
In other words, the Act was interpreted to mean unless a reasonable provision is made for future maintenance, a woman will be entitled to an order of maintenance even after the Iddat and the right is not confined only to Iddat period. (Paras 16 & 17)
In the case of Iqbal Bano v. State of U.P. and Anr., the Apex Court re-examining the scope of Section 125 of Cr.P.C. with reference to the right of a Muslim Woman and taking into consideration the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, held the Act applies to a divorced Muslim Woman only and not to a Muslim Woman who is not divorced or whose divorce is in question.
Furthermore, it held ‘proceedings under Section 125 of Cr. P.C. and the proceedings under the Act of 1986 are tried by the same Court and taking into consideration the beneficial nature of the 1986 Act, even if a divorced woman applies under Section 125 of Cr.P.C., it is open to the Court to try it as an application under the Muslim Women (Protection of Rights on Divorce) Act, 1986’.
That view is further reiterated by a co-ordinate Bench of the Apex Court in the case of Shabana Bano, wherein taking into consideration the fact situation that a divorced Muslim woman having filed an application under Section 125 of Cr.P.C., would continue such proceedings after her divorce, the Apex Court held ‘till such applicant-woman does not get remarried, her claim for maintenance is maintainable irrespective of the absence of any application under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986’. Her entitlement continues even in post Iddat period as long as she does not remarry.
What emanates from the dictum in the cases above is, a divorced Muslim woman can still maintain a petition under Section 125 of Cr. P.C. claiming maintenance after divorce from her husband. There is, therefore, legal permissibility for proceeding with a petition under Section 125 of CrPC by a Muslim divorced woman. But the question is, though such a course is permissible, is it in her interest? Necessarily the object with which the benevolent provisions of Section 125 of CrPC was engrafted in the Code of Criminal Procedure and the object behind the Muslim Women (Protection of Rights in Divorce) Act, 1986, shall not escape our notice. (Paras 18 to 21)
Thus, the conclusion would be, though there is legal permissibility for a divorced Muslim woman to maintain a petition under Section 125 of Cr.P.C., and the Magistrate would be justified in granting such relief, there is no reason why they should not be asked to proceed to seek relief under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This view is fortified from the decision of the Apex Court in the case of Iqbal Bano. Accordingly the first point is answered.
Applying the settled legal position, it has to be held that the impugned order restricting grant of maintenance to Salma Parveen only for the period of Iddat is unsustainable and it is thus set aside. (Paras 26 & 27)
Result: Revision disposed of.
ORDER
Jawad Rahim, J.—Both these petitions under the provision of Section 19(4) of the Family Courts Act, 1984 are directed against the order dated 30.9.2009 in C. Misc. No. 308 of 2002 on the file of Judge, Family Court, Mysore.
2. RPFC No. 60 of 2009 is by the husband questioning the direction in the impugned order to pay maintenance to his wife Dr. Salma Parveen.
3. RPFC No. 15 of 2010 is by the wife seeking enhancement of maintenance ordered. Necessarily both the petitions are clubbed and taken up for final disposal.
4. The contextual facts are:
(a) Dr. Salma Parveen married Musthaq Nayak according to Islamic rites and customs and both commenced matrimonial life. Within a short period, she filed C. Misc. No. 308 of 2002 alleging cruelty, harassment by her husband. On the plea of willful neglect and deprival of basic necessities in life, she sought maintenance from her husband under the provision of Section 125 of the Criminal Procedure Code, 1973. In support of her claim she alleged having qualified as a medical Practitioner, she was aspiring to pursue further education and at that juncture, Musthaq Nayak and his parents approached her parents representing to them that he is a well-qualified Engineer, good natured with all virtues and would have been a befitting husband for her. All such representations were believed by her parents and she was compelled to marry him, shattering all hopes. It was represented to them that he had secured an enviable position as an Engineer in California, USA with lucrative emoluments and perks. Therefore, she had no choice but to succumb to her parents’ compulsion and the Nikah was performed on 13.12.2001.
(b) Even before solemnization of marriage, to the dismay of her parents, Musthaq Nayak and his parents demanded and received Rs.2,00,000 in cash and gold articles valued at more than Rs.2,00,000. Her parents had to yield to the demand as by then the proposal of marriage had become public and failure would jeopardise and family’s repute. In such circumstances, the marriage was solemnized on 13.12.2001 incurring an expenditure of Rs. 6,50,000/-.
(c) She entered matrimony and lived in the house occupied by Musthaq Nayak and his parents and sister. She hoped matrimony would be a bliss, but soon realised it was not so. He was adamant, ill-mannered and had no intention to establish a family. He and his parents had a sinister design to extract money in cash as dowry and in this regard, his spinster sister indulged in mental and physical torture; they commanded her to work, depriving her of basic needs in life. He was a puppet in the hands of his mother and other family members and at their instance, demanded additional dowry which her father, being a Government servant, could not comply.
(d) During this period, to her utter shock, she found while living in USA, he had already contracted marriage with another woman, but claimed he had obtained divorce. The fact of prior marriage was not only suppressed but she had reason to believe he still had the said woman as his wife. When she questioned him, she was chased out of the house taking away all gold ornaments which was later misappropriated. Finding fault with her in questioning his earlier marriage, he and his family members aggravated torturous conduct and cruelty which was beyond her tolerance. Having no other option, she reported the matter to the jurisdictional police who registered it in FIR 208/02, and investigation culminated in filing of charge-sheet in CC No. 2481 of 2002 arraigning him and his family members for the offences punishable under Section 498A of the Indian Penal Code, 1860 and offences punishable under the Dowry Prohibition Act, 1961, which case is pending before the 11th ACMM, Bangalore.
(e) Narrating several other circumstances showing life was impossible and the marriage was not workable, and also on the plea that she is incapable of maintaining herself, she sought maintenance under Section 125 of Cr. P.C.
(f) On bei
