Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Kauser Edappagath, J.
Mujeeb Rahiman – Petitioner
Versus
Thasleena and Ors. – Respondents
Crl. Rev. Pet No. 667 of 2020, RPFC No. 212 of 2020
Decided On : 04-04-2022
Protection of Women from Domestic Violence Act, 2005 - Section 12 - Code of Criminal Procedure, 1973 – Section 125(1) – Muslim Women Protection Act - Liability under Section 3 - If the wife is dissatisfied with the amount, she can claim further amount if any payable under Section 3 by resorting to the provisions of the Muslim Women Protection Act. So also, in a case where the husband expresses his willingness to discharge his liability under Section 3 and actually tenders the amount payable by him under the said provision, but the wife without any valid reason refuses to receive the same, the liability of the husband under Section 125 of Cr. P.C would stand extinguished. (Para 15,16).
Finding of the Court :
Wife cannot be allowed to circumvent the provisions of the Muslim Women Protection Act by refusing the offer made by the husband to make the payment under Section 3 without any valid reason. The husband cannot be fastened with liability to continue to pay the maintenance under Section 125 of Cr.P.C till the wife invokes Section 3 of the Muslim Women Protection Act if he is prepared to discharge his liability under Section 3. The husband is free to pay amounts under Section 3 voluntarily out of court notwithstanding the fact that the wife did not choose to file a petition claiming reliefs under Section 3. Such payment would certainly absolve the husband from the liability under the Cr.P.C.
Result : Dismissed
Key Points: - The judgment discusses whether a husband can be liable under Cr.P.C. Section 125 while he offers to pay under Section 3 of the Muslim Women Protection Act and whether such payment extinguishes Section 125 liability if timely and voluntary. (!) (!) (!) - It holds that a husband may voluntarily pay under Section 3 of the MWPA and such payment can absolve liability under Section 125 Cr.P.C, with the caveat that the offer/payment must be during the iddat period and must be accepted by the wife for extinguishing 125 liability. (!) (!) (!) - The court clarifies that a divorced Muslim woman may pursue maintenance under MWPA Section 3 or under Cr.P.C Section 125, and both schemes are not automatically extinguished; existing orders under 125 can continue until MWPA provisions are invoked and disposed. (!) (!) (!) (!) - The order directs the wife to file an application under MWPA Section 3 within one month and for the Magistrate to decide within six months; until then, maintenance under the Cr.P.C order continues. (!) - The judgment discusses the status of talaq, dissolution, and its impact on maintenance liability, including that the wife’s remarriage or final determination of talaq affects ongoing maintenance obligations. (!) (!) - It reiterates the MWPA’s objective of providing "provision" and "maintenance" to a divorced Muslim woman and clarifies the relationship with Cr.P.C maintenance provisions. (!) (!)
ORDER :
The husband, who is the petitioner in both the above revision petitions, challenges two orders passed by two courts in two different proceedings initiated by the wife.
2. MC No.223/2017 has been filed by the wife against her husband, mother-in-law and sister-in-law under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The learned Magistrate as per the order dated 15/01/2019 allowed the said MC against the husband/the respondent No.1 therein and the following reliefs were granted.
(2) The first respondent is hereby directed to provide alternative accommodation suitable for the status of the second petitioner at Calicut city where she is studying within one month from the date of this order failing which the second petitioner can take suitable house or flat on rent and claim the rent of the accommodation periodically from the first respondent against the valid receipt issued by the landlord.
(3) First respondent is directed to pay Rs.6,000/-per month towards the rent from the date of petition till the date of this order.”
3. The husband challenged the above order at the appellate court as Crl.Appeal No.83/2019. The appellate court dismissed the appeal as per the order dated 7th July 2020. Crl.R.P.No.667/2020 has been filed by the husband challenging the above two orders.
4. The wife and one child filed another petition as MC No.101/2018 against the husband at the Family Court, Kozhikode u/s 125(1) of the Code of Criminal Procedure, 1973 (for short, Cr.P.C) claiming maintenance. The Family Court after trial allowed the said MC also and the husband was directed to pay Rs.6,000/-per month to the wife and Rs.3,000/-per month to the child as maintenance from the date of the petition. It was further ordered that the husband shall be entitled to set off the amount of maintenance paid for the same period in MC No.223/2017. Challenging the said order, the husband preferred RP(FC) No.212/2020.
5. I have heard Smt.Veena Hari, the learned counsel for the husband and Sri.N.V.P.Rafeeque, the learned counsel for the wife and child.
6. The parties are Muslims. The marriage between the husband and the wife was solemnized as per Muslim religious rites on 25/12/1997. Two children were born in wedlock (one son and one daughter). At the time of filing the MC, the son had attained the majority. The maintenance was claimed for the daughter. It is submitted that now the daughter has also attained majority. There is some dispute with regard to the present marital status of the husband and the wife. The husband claims that he has validly divorced the wife by the pronouncement of talaq in accordance with Muslim Personal Law. The wife disputes the same. MC No.223/2017 has been filed at a time when the husband pronounced the first talaq. During the pendency of the said MC, the husband pronounced the remaining two talaqs. In paragraph 7 of the order in MC No.223/2017 dated 15th January 2019, there is a clear finding that the marriage between the husband and the wife was validly dissolved by the pronouncement of talaq and that the status of the wife is that of the divorced wife. It is pertinent to note that the wife did not challenge the said order. On the other hand, in the appeal filed by the husband challenging the said order, the appellate court confirmed, among other things, the finding of the learned Magistrate that there was a valid dissolution of marriage by the pronouncement of talaq. Thus, the finding that the marital relationship between the husband and wife was severed by the
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
