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PATNA HIGH COURT
M.Y.Eqbal, J.
Bibi Shahnaz Alias Munni
Versus
State Of Bihar
Criminal Revision No. 610 of 1997 ;
Decided On : AUGUST 21, 1998
MAINTENANCE - MUSLIM WOMEN (PROTECTION OF RIGHT ON DIVORCE) ACT, 1986 - SEC. 3, 4 - CODE OF CRIMINAL PROCEDURE, 1973 - SEC. 125 - A divorced Muslim woman is entitled to claim maintenance only under the provisions and procedure provided under Secs. 3 and 4 of the Muslim Women (Protection of Right on Divorce) Act, 1986. She can claim maintenance from her former husband for and during the period of iddat, dower amount agreed at the time of marriage, and other properties given to her by her relatives and friends at the time of marriage or thereafter. If she is not remarried and unable to maintain herself after the expiry of iddat, she may claim maintenance under Sec. 4 of the Act. After the enactment of the Act, a divorced woman is not entitled to claim maintenance under Sec. 125 of the Code of Criminal Procedure.
Fact of the Case:
The petitioner, a divorced Muslim woman, filed a petition under Sec. 125 of the Code of Criminal Procedure (Cr.P.C.) against her former husband, seeking maintenance for herself and her two minor children. The Magistrate allowed the petition and directed the husband to pay maintenance. The husband filed a revision petition before the Sessions Judge, who modified the order and held that the petitioner was entitled to maintenance only during the period of iddat. The petitioner challenged the order of the Sessions Judge.
Finding of the Court:
The Court held that after the enactment of the Muslim Women (Protection of Right on Divorce) Act, 1986 (the Act), a divorced Muslim woman is entitled to claim maintenance only under the provisions and procedure provided under Secs. 3 and 4 of the Act. She is entitled to claim maintenance from her former husband for and during the period of iddat, dower amount agreed at the time of marriage, and other properties given to her by her relatives and friends at the time of marriage or thereafter. If she is not remarried and unable to maintain herself after the expiry of iddat, she may claim maintenance under Sec. 4 of the Act. The Court further held that after the enactment of the Act, a divorced woman is not entitled to claim maintenance under Sec. 125 of the Cr.P.C.
Issues: 1. Whether a divorced Muslim woman is entitled to claim maintenance under Sec. 125 of the Cr.P.C. after the enactment of the Act? 2. Whether a divorced Muslim woman is entitled to claim maintenance from her former husband for and during the period of iddat, dower amount agreed at the time of marriage, and other properties given to her by her relatives and friends at the time of marriage or thereafter? 3. Whether a divorced Muslim woman who is not remarried and unable to maintain herself after the expiry of iddat is entitled to claim maintenance under Sec. 4 of the Act?
Ratio Decidendi: 1. The Act provides a comprehensive framework for the protection of the rights of divorced Muslim women, including the right to maintenance. Sec. 3 of the Act provides that a divorced Muslim woman is entitled to a reasonable and fair provision and maintenance within the period of iddat by her former husband. Sec. 4 of the Act provides that if a divorced Muslim woman is not remarried and is not able to maintain herself after the period of iddat, she may make an application to the Magistrate for an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law, to pay such reasonable and fair maintenance to her. 2. The Act is a non obstante law, which means that it overrides any other provision contained in any other law for the time being in force. Therefore, the provisions of Sec. 125 of the Cr.P.C., which provide for the payment of maintenance to divorced women, are not applicable to divorced Muslim women. 3. A divorced Muslim woman is entitled to claim maintenance from her former husband for and during the period of iddat, dower amount agreed at the time of marriage, and other properties given to her by her relatives and friends at the time of marriage or thereafter. If she is not remarried and unable to maintain herself after the expiry of iddat, she may claim maintenance under Sec. 4 of the Act.
Final Decision: The Court dismissed the petitioner's revision petition, holding that she was not entitled to any relief under Sec. 125 of the Cr.P.C. The Court, however, observed that the petitioner was at liberty to initiate action against her former husband for the recovery of dower amount and other properties under the provisions of the Act.
1. In this case a very interesting point of law is involved regarding right of a divorced wife to claim maintenance in a proceeding under Sec. 125 of the Code of Criminal Procedure.
2. The petitioner in this case has challenged the order dated 18-8-1997 passed by the 3rd Addl. Sessions Judge, Darbhanga, in Criminal Revision No. 676 of 1993 whereby the learned Sessions Judge modified the order dated 27-8-1993 passed by the Judicial Magistrate, 1st Class, Darbhanga and allowed the petition of the petitioner so far as it relates to claim of maintenance for the children only.
3. The facts relevant for the purpose of deciding this question are that the petitioner in the year 1990 filed a petition against her husband (Opp. party No. 2) under Sec. 125 of the Code of Criminal Procedure (for short Cr. P. C.) stating inter alia that she was married with the opposite party No. 2 in the year 1982 and gave birth to two children. It is stated that although she is legally married wife, but Opp. party No. 2 refused to maintain her and her children. It was alleged that the petitioner is the second wfie of Opp. party No. 2 and first wife has also been seeking relief for maintenance as she has also been neglected by Opp. party No. 2. Opposite party No. 2 filed show cause on 16-11-1991 and took defence that the petitioner did not like to live with him and he divorced her and returned her all articles, utensils and expenses for maintenance during Iddat period. The case of Opposite party No. 2 is that after divorce he is not liable to pay any amount by way of maintenance to the petitioner and her children. Lastly in the show cause Opp. party No. 2 claimed that he got no issue from the petitioner and he has no other sources of income except from monthly salary of teaching.
4. The learned Judicial Magistrate after hear-ing the parties allowed the application and directed the Opp. Party No. 2 to pay Rs. 250.00 as maintenance to the petitioner and Rs. 100.00 each for the maintenance of two minor children. The learned Magistrate held that the plea of Opp. party No. 2 regarding divorce has not been proved and, therefore, she continued to be the legally married wife. Aggrieved by the said order, Opp. party No. 2 filed Cr. Revision No. 676 of 1993 before the learned Sessions Judge, Darbhanga, which was eventually transferred for disposal to the file of the 3rd Additional Sessions Judge, Darbhanga, hereinafter refered to as the revisional Court. The revisional Court disposed of the revision in terms of the order dated 18-8-1997 and modified the order passed by the learned Judicial Magistrate. The revisional Court took the view that the husband-Opp. party No. 2 has categorically stated in his show cause that he divorced the petitioner. Even if the statement made in the show cause is not accepted, at least from the date of his deposition dated 11-8-1993 it will be deemed that the petitioners wife got knowledge about divorce and from that period, the period of Iddat will be taken into consideration. The revisional Court held that in view of the fact that Opp. party No. 2 has divorced the petitioner, she would be entitled to maintenance only dur-ing Iddat period. The learned revisional Court, therefore, modified the order and directed Opp. party No. 2 to pay the sum awarded for the maintenance of children only. Hence this revi-sion application.
5. Mr. Md. Wasi Akhtar, learned Senior Advocate appearing on behalf of the petitioner assailed that part of the impugned order by which the claim of the petitioner for maintenance has been set aside. The learned counsel firstly submitted that once the learned revisional Court treated the petitioner to be divorced woman, the revision application ought to have been disposed of in terms of Sec. 3 of the Muslim Women (Protection of Right on Divorce) Act, 1986 and not in terms of Sec. 125 of the Code of Criminal Procedure. The learned counsel secondly submitted that the revisional Court while passing the order for mai
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