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2015 Supreme(Pat) 401
IN THE HIGH COURT OF JUDICATURE AT PATNA
DINESH KUMAR SINGH, J.
Noor Alam – Petitioner
Versus
The State of Bihar & Ors. - Opposite parties
Criminal Revision No.501 of 2014
Date: 04-03-2015
Advocate Appeared:
For the Petitioner:Mr. Md. Ataur Rahman, Advocate.
For the State : Mr. S.M. Rahman, A.P.P.
The main legal point established in the judgment is the entitlement of a divorced Muslim woman to maintenance beyond the iddat period and the maintainability of the application under Section 125 Cr.P.C. in such cases.
Headnote:
Maintenance - Muslim Women - The Muslim Women (Protection of Rights on Divorce) Act, 1986 - Section 3, Section 125 of Cr. P.C. - Section 127(3)(b) Cr.P.C. - Sections 3 to 5 of the Act - [KEYWORD] - Maintenance - The Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3, Section 125 of Cr. P.C., Section 127(3)(b) Cr.P.C., Sections 3 to 5 of the Act - The court discussed the interpretation of Section 125 of Cr.P.C. and its applicability to divorced Muslim women, the provisions of The Muslim Women (Protection of Rights on Divorce) Act, 1986, and the constitutional validity of the Act. The court highlighted the obligation of a Muslim husband to provide maintenance to a divorced wife, the liability of the husband under Section 3(1)(a) of the Act, and the entitlement of a divorced Muslim woman to maintenance beyond the iddat period. The court also emphasized the discriminatory nature of denying a Muslim woman the beneficial provision of Section 125 of the Code.
Fact of the Case:
The petitioner filed a maintenance application under Section 125 of Cr.P.C. claiming that the application under Section 125 Cr.P.C. is not maintainable due to the filing of a petition under Section 3 of The Muslim Women (Protection of Rights on Divorce) Act, 1986 by the opposite party. The court found that the application under Section 3 of the Act was limited to the claim of Mehar and expenses for the Iddat period, and hence, the application under Section 125 Cr.P.C. was maintainable.
Finding of the Court:
The court found that the application under Section 125 Cr.P.C. for maintenance was maintainable as the relief granted under Section 3 of the Act was limited to the claim of Mehar and expenses for the Iddat period, and the application under Section 125 Cr.P.C. was filed prior to the application under Section 3 of the Act.
Issues: The issues involved the maintainability of the application under Section 125 Cr.P.C. during the pendency of the application under Section 3 of the Act, and the entitlement of a divorced Muslim woman to maintenance beyond the iddat period.
Ratio Decidendi: The court held that the application under Section 125 Cr.P.C. was maintainable as the relief granted under Section 3 of the Act was limited to the claim of Mehar and expenses for the Iddat period, and the application under Section 125 Cr.P.C. was filed prior to the application under Section 3 of the Act.
Final Decision: The court dismissed the application, finding no infirmity with the impugned order.
Heard learned counsels for the petitioner and the State.
2. The present Criminal Revision application is directed against the order dated 28.05.2014, passed by learned Principal Judge, Family Court, Katihar, in Maintenance Case No. 34/2008, whereby the petition dated 26.04.2014 filed by the petitioner has been dismissed. The petition dated 26.04.2014 was filed to the effect that since the opposite party no. 2 has preferred a petition under Section 3 of The Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the „Act?) being Case No. 3835/2008 on 17.12.2008, the maintenance application under Section 125 of Cr. P.C., filed by opposite party no. 2, at earlier point of time i.e. on 20.05.2008 is not maintainable.
3. The factual matrix of the case is that the marriage between the petitioner and O.P. No. 2 on 04.01.2005 and birth of a child are not in dispute. Initially, the opposite party no. 2 filed an application under Section 125 Cr. P.C., claiming maintenance, being Maintenance Case No. 34/2008 on 20.05.2008. The petitioner appeared in the maintenance case and filed a show cause to the effect that he has already divorced O.P. No. 2. Subsequently on 17.12.2008, the O.P. No. 2 filed a petition under Section 3 of the Act. The petitioner claimed that the application under Section 125 Cr.P.C., is not maintainable, since O.P. No. 2 had claimed Den Mehar and expenses for the Iddat period by filing petition under Section 3 of the Act. It is further contended that once the legislation has provided specific provision for maintenance of Muslim woman by enacting a separate Act, a divorced Muslim wife cannot claim maintenance under Section 125 Cr.P.C. Moreover, since two applications are pending in two separate courts, the possibility of contrary orders being passed cannot be ruled out. Besides this, the provisions under Sections 3 to 5 of the Act oust the jurisdiction of the court, to entertain an application or to continue with a pending proceeding under Section 125 Cr.P.C.
4. It is claimed by O.P. No. 2 that the petition under Section 3 of the Act has been filed for getting back the articles given at the time of marriage, for payment of Den Mehar and expenses of Iddat period and not for future maintenance. Furthermore, since the O.P. No. 2 has not re-married, hence, the application under Section 125 Cr.P.C., is maintainable.
5. The learned Principal Judge, Family Court, Katihar, after considering the rival submissions of the parties, came to the conclusion that the application under Section 3 of the Act was filed claiming maintenance only till the period of Iddat and not afterwards. Therefore, the application under Section 125 Cr.P.C., claiming future maintenance is maintainable. Since, both the petitions are pending in two different courts, hence, the court of the learned Principal Judge, Family Court, Katihar, directed O.P. No. 2 to file an undertaking on affidavit, before the court in seisin, with the application under Section 3 of the Act that she has not been claiming any future maintenance under the Act and accordingly, dismissed the application of the petitioner dated 26.04.2014 whereby it was claimed that the application under Section 125 Cr.P.C. is not maintainable.
6. It is submitted by learned counsel for the petitioner that since O.P. No. 2 has filed the application under Section 3 of the Act, subsequent to the filing of the application under Section 125 Cr.P.C. the maintenance proceeding under Section 125 Cr. P.C., cannot proceed. More over, the O.P. No. 2 ought to have taken recourse to provisions of Sections 3 and 4 of the Act for future maintenance. The provision of exercising option, under Section 5 of the Act for taking recourse to Sections 125 to 128 Cr.P.C., has not been exercised.
7. The issue relating to divorced Muslim woman?s right to get maintenance under Section 125 Cr.P.C., was considered by the Constitution bench in the case of Mohd. Ahmed Khan vs. Shah Bano Begum and Othe
