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High Court Of Calcutta
Arunabha Barua
ABDUL LATIF MONDAL - Appellant
Versus
ANUWARA KHATUN - Respondent
C. R. R. 670 Of 2001
Decided On : 12/07/2001
MAINTENANCE - MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE - Applicability of - Whether the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, render the order of maintenance passed by the Magistrate under section 125 of the Code of Criminal Procedure a nullity - Held, no.
Fact of the Case:
The petitioner (husband) challenged the order of the learned Chief Judicial Magistrate, Bankura, directing him to give maintenance @ Rs. 800/- per month to the opposite party No. 1 (wife) and Rs. 400/- per month for her minor son, in all Rs, 1,200/- per month. The wife alleged that their marriage took place on 18.6.92 according to Muslim rites and customs and that the marriage was still subsisting. In the said marriage Den-Mohar was fixed at Rs. 5,001/-. Gold ornaments, cash money and other things were given to the husband at the marriage. Few days after the marriage, the husband demanded more money and on her expressing inability to fetch the same the husband and the inmates of his house starting torturing her physically and mentally. A male child was born to them and he was then aged three years. The torture on her had increased by the day thereafter and eventually her husband having assaulted her, drove her out of her matrimonial home on 18.1.96 and since then she had been living in her father's house with her minor son. The husband totally neglected to maintain her and the minor son and the wife had also no means to maintain herself and the child. The husband dealt in rice and paddy, also possessed 12/15 bighas of agricultural lands from which he used to earn Rs. 6,000/- per month. The husband in his written objection denied all the materials allegations of the wife and contended that the petitioner could not adjust with the family of the husband because of her higher status and hence the husband divorced the wife by pronouncement of Talak on 22.12.94 in pursuance of a village committee resolution date 29.5.94. He further contended that a criminal case under section 498a of the IPC was also filed by the wife against the husband and the inmates of his house. Accordingly, the husband prayed for dismissal of the case.
Finding of the Court:
The Court held that the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, does not take away the rights of the Muslim women to claim maintenance from her husband under the general law that is under section 125 Cr. PC and that the enactment of MW Act, will not render an order of maintenance passed by the Magistrate under section 125 Cr. PC non-est because there is no provision in the M. W. Act which will make an order passed by the Magistrate under section 125 Cr. PC a nullity. The Court further held that the claim of maintenance is not limited only upto the period of Iddat and that the learned Chief Judicial Magistrate was justified in granting maintenance allowance of Rs. 800/- per month for the wife and Rs. 400/- per month for her minor son.
Issues: 1. Whether the enactment and, for that matter, the provisions of "the Muslim Women (Protection of Rights on Divorce) Act, 1986", MW Act, for short, render the impugned order of maintenance, passed by the learned Chief Judicial Magistrate date. 17.2.2001 under section 125 Cr. PC a nullity. 2. Whether the claim of maintenance is limited only upto the period of Iddat. 3. Whether the learned Chief Judicial Magistrate was justified in granting maintenance allowance of Rs. 800/- per month for the wife and Rs. 400/- per month for her minor son.
Ratio Decidendi: 1. The Muslim Women (Protection of Rights on Divorce) Act, 1986, does not take away the rights of the Muslim women to claim maintenance from her husband under the general law that is under section 125 Cr. PC. 2. The claim of maintenance is not limited only upto the period of Iddat. 3. The learned Chief Judicial Magistrate was justified in granting maintenance allowance of Rs. 800/- per month for the wife and Rs. 400/- per month for her minor son.
Final Decision: The revision application was dismissed.
( 1 ) THIS revisional application is directed against the judgment and order date 17. 2. 2001 passed by the learned Chief Judicial Magistrate, Bankura in Misc. Case No. 94 of 1996 directing the petitioner (husband) to give maintenance @ Rs. 800/- per month to the opposite party No. 1 (wife) and Rs. 400/- per month for her minor son, in all Rs, 1,200/- per month.
( 2 ) WE may briefly state the facts of the case as follows: anuwara Khatun, O. P. No. 1, petitioner in the Court of learned Chief Judicial Magistrate, Bankura, under section 125 of the Code of Criminal Procedure for maintenance @ Rs. 1,000/- per month for herself and Rs. 500/- per month for her minor son from her husband, that is the petitioner in this revision, in Misc. Case No. 94/96. The wife alleged that their marriage took place on 18. 6. 92 according to Muslim rites and customs and that the marriage was still subsisting. In the said marriage Den-Mohar was fixed at Rs. 5,001/ -. Gold ornaments, cash money and other things were given to the husband at the marriage. Few days after the marriage, the husband demanded more money and on her expressing inability to fetch the same the husband and the inmates of his house starting torturing her physically and mentally. A male child was born to them and he was then aged three years. The torture on her had increased by the day thereafter and eventually her husband having assaulted her, drove her out of her matrimonial home on 18. 1. 96 and since then she had been living in her father's house with her minor son. The husband totally neglected to maintain her and the minor son and the wife had also no means to maintain herself and the child. The husband dealt in rice and paddy, also possessed 12/15 bighas of agricultural lands from which he used to earn Rs. 6,000/- per month.
( 3 ) THE husband in his written objection denied all the materials allegations of the wife and contended that the petitioner could not adjust with the family of the husband because of her higher status and hence the husband divorced the wife by pronouncement of Talak on 22. 12. 94 in pursuance of a village committee resolution date 29. 5. 94. He further contended that a criminal case under section 498a of the IPC was also filed by the wife against the husband and the inmates of his house. Accordingly, the husband prayed for dismissal of the case.
( 4 ) THE learned Chief Judicial Magistrate, Bankura, allowed the application and directed payment of Rs. 800/- per month for the wife and Rs. 400/- per month for her minor son from the date of the order. The husband made a revisional application against that order and the learned Sessions Judge, Bankura, had set aside the judgment of the learned Chief Judicial Magistrate in the said Misc. Case No. 94/96 and sent the case back to the learned Court below on remand with direction to dispose of the application under section 125 Cr. PC after giving opportunity to both the parties to produce proper documents to establish their respective claims.
( 5 ) THE said application under section 125 Cr. PC was again came up for hearing before the learned Chief Judicial Magistrate, Bankura and on completion of all evidence having been taken, the learned Chief Judicial Magistrate, Bankura, passed the said impugned judgment and order dated 17. 2. 2001 whereby he allowed the said Misc. Case No. 94/96 and ordered maintenance allowance @ Rs. 800/- per month in favour of the wife and Rs. 400/- per month for her minor son, totally Rs. 1,200/- per month to be paid by the O. P. husband. And hence, this revisional application by the aggrieved husband.
( 6 ) WHAT precisely is challenged by way of this revisional is the order of the learned Chief Judicial Magistrate, Bankura, is Misc, Case No. 94/96 whereby the O. P. No. 1, that is, the wife, Anuwara Khatun was granted maintenance @ Rs. 800/- per month for herself and Rs. 400/- per month for her minor son, in all Rs. 1,200/- per month, to be paid by the petitioner-husband
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