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2017 Supreme(Raj) 1795
IN THE HIGH COURT OF RAJASTHAN
PUSHPENDRA SINGH BHATI, J.
Smt. Nazma - Appellant
Versus
Abdul Gaffar - Respondent
S.B. Criminal Misc(Pet.) No. 1630 of 2012
Decided On : 19-09-2017
For the Appellant :Mr. Chaitanya Gahlot, Advocate
For the Respondent:Mr. Pankaj Gupta, Advocate
Section 125 Cr.P.C., 1973 is applicable to all persons belonging to all religions and has no relationship to the personal law of the parties. The liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 to pay maintenance is not confined to the iddat period.
Headnote:
MAINTENANCE - SECTION 125 CR.P.C., 1973 - SECTION 3(1)(A) OF THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - APPLICABILITY OF SECTION 125 CR.P.C., 1973 TO MUSLIM WOMEN - REASONABLE AND FAIR PROVISION AND MAINTENANCE TO BE MADE AND PAID WITHIN THE IDDAT PERIOD - LIABILITY OF MUSLIM HUSBAND TO HIS DIVORCED WIFE ARISING UNDER SECTION 3(1)(A) OF THE ACT TO PAY MAINTENANCE IS NOT CONFINED TO THE IDDAT PERIOD.
Fact of the Case:
The petitioner, a Muslim woman, filed an application under Section 125 Cr.P.C., 1973 along with her handicapped son and minor daughter, seeking maintenance from her husband, the respondent. The petitioner alleged that the respondent left for Qatar and did not bother about her and her children for six years, and thus, allegedly committed cruelty upon them.
Finding of the Court:
The court held that Section 125 Cr.P.C., 1973 is applicable to all persons belonging to all religions and has no relationship to the personal law of the parties. The court also held that the liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 to pay maintenance is not confined to the iddat period.
Issues: 1. Whether Section 125 Cr.P.C., 1973 is applicable to Muslim women? 2. Whether the liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 to pay maintenance is confined to the iddat period?
Ratio Decidendi: 1. The court relied on the precedent law laid down by the Hon'ble Apex Court in Chand Patel v. Bismillah Begum & Anr., reported in 2008(4) SBR 392, which held that Section 125 Cr.P.C., 1973 is applicable to all persons belonging to all religions and has no relationship to the personal law of the parties. 2. The court also relied on the precedent law laid down by the Hon'ble Apex Court in Iqbal Bano v. State of U.P. & Anr., reported in 2007(7) SBR 506, which held that the liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 to pay maintenance is not confined to the iddat period.
Final Decision: The court allowed the petition and quashed and set aside the impugned orders passed by the lower courts. The matter was remanded back to the learned court below to decide the maintenance of the petitioner, after considering her case on merits, strictly in accordance with law.
Pushpendra Singh Bhati, J.
1. This criminal misc. petition under Section 482 Cr.P.C., 1973 has been preferred against the order dated 11.09.2007 passed by learned Sessions Judge, Churu in Criminal Revision No.72/2006, affirming the order dated 05.04.2006 passed by learned Chief Judicial Magistrate, Churu in Criminal Misc. Case (Section 125 Cr.P.C., 1973) No.192/2004, per which the petitioner/applicant was allowed maintenance for an amount of Rs. 1000/- per month till the term of Iddat; Rs. 700/- per month was allowed as maintenance to applicant No.2 Zaheer Abbas being handicapped till being competent to maintain himself and Rs. 800/- per month was allowed to applicant No.3 Sabeena being minor till getting married or attaining majority, whatsoever is earlier; all from the date of application.
2. The petitioner has preferred an application under Section 125 Cr.P.C., 1973 along with her handicapped son, namely, Zaheer Abbas and minor daughter, Sabeena stating therein that the marriage between the parties was solemnized in the year 1973. It is also alleged that the respondent left for Qatar and did not bother about the petitioner and her children for six years, and thus, allegedly committed cruelty upon them.
3. Learned counsel for the petitioner has relied upon the precedent law laid down by the Hon'ble Apex Court in Iqbal Bano v. State of U.P. & Anr., reported in 2007(7) SBR 506, relevant paras 6 to 8 of which read as under:-
"6. The view expressed by the First Revisional Court that no Muslim woman can maintain petition under Section 125 Cr.P.C., 1973 is clearly unsustainable. The Act only applies to divorced women and not to a woman who is not divorced. The conclusions that in view of the statement in the written statement about alleged divorce 30 years by utterance of the words "Talaq" "Talaq" "Talaq" three times is sufficient in law is not sustainable. This Court in Shamim Ara v. State of U.P. and Anr. : (2002) SUPP 3 SCR 19 observed:
"16. We are also of the opinion that the talaq to be effective has to be pronounced. The term "pronounce" means to proclaim, to utter formally, to utter rhetorically, to declare to utter to articulate (see Chambers 20th Century Dictionary, New Edition, p. 1030) There is no proof of talaq having taken place on 11.7.1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5.12.1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. Respondent 2 ought to have adduced evidence and proved the pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on the wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31.8.1988, filed in some previous judicial proceedings not inter partes, containing a self-serving statement of Respondent 2, could not have been read in evidence as relevant and of any value."
7. The conclusions about the Mehr having been paid and the Iddat period is over has no relevance. A Constitution Bench of this Court in Danial Latifi and Anr. v. Union of India: 2001 Cri. L.J 4660 observed as follow
