Maintenance Pendente Lite--Muslim woman is entitled to maintenance pendente lite, in a petition filed for restitution of conjugal rights

JUDGMENT

Mr. Amit Rawal, J. (Oral):- This order of mine shall dispose of two revision petitions bearing CR No.5159 of 2017 titled as “Sabri V/s Mohd. Jamil and another” and CR No.6193 of 2017 titled as “Gulaksha V/s Zafar Iqbal and others”, as identical question of fact and law is involved.

2. The point, which arises for determination, is whether the Muslim woman is entitled to maintenance pendente lite, in a petition filed for restitution of conjugal rights.

3. Concededly, the parties to the lis are governed by religion and Muslim customs.

4. In both the cases, the husband filed the suit for restitution of conjugal rights, on the allegations made therein, wherein the petitioner-wife filed an application for grant of maintenance pendente lite. The trial Court after contest, dismissed the application, on the ground that there is no provision in the Muslim Law or any statute governing them, for grant of interim maintenance.

5. Mr. Sunny K. Singla, learned counsel appearing on behalf of the petitioner, relies upon the judgment of Allahabad High Court rendered in “Samaun Khan V/s Smt. Roshni Parveen”, [2010(2) Marriage L.J. 299] : 2010 (35) RCR (Civil) 733, which protects the right of every citizen of India for granting the maintenance pendente lite as well as judgment of Bombay High Court in “Tabassum Shaikh V/s Shaikh S. J. Shaikh, 2000(1) HLR 520 and Karnataka High Court in “H. Sirajuddin V/s Shaziya alias Afsana and another” 2003 AIR (Karnataka) 224.

6. On the other hand, learned counsel for the respondent(s) relies upon judgment of Bombay High Court (Nagpur Bench) in “Shabbir Ahmed Sheikh V/s Shakilabanu” 1985 (2) HLR 180, dis-entitling the Muslim woman to maintenance pendente lite under the provisions of Section 125 of the Code of Criminal Procedure and Section 24 of the Hindu Marriage Act.

7. I have heard learned counsel for the parties, appraised the paper book and of the view that there is force and merit in the submissions of Mr. Singla, for, the ratio decidendi culled out by Allahabad High Court was based upon analogy drawn from the Protection of Women from Domestic Violence Act, 2005, which is applicable to all the women, irrespective of the caste and religion, but considered the provisions of Article 21 of the Constitution of India i.e. Right to Life and Right to Livelihood as fundamental rights. For the sake of brevity, para Nos.28 and 29 of the judgment reads as under:-ezu

‘’28. Apart from above, there is one another aspect of the matter. Right to life and the right to livelihood are fundamental rights guaranteed under Article 21 of the Constitution of India as settled by Hon’ble Supreme Court in Catena of judgments. The meaning of the word “LIFE” interpreted by Hon’ble Supreme Court from time to time. In Kharak Singh Vs. State of U.P., AIR 1963 SC 1295: 1964 (1) SCR 332, it was held that the term “life indicates more than mere animal existence. [See also : State of Maharashtra VS. Chandrabhan Tale, AIR 1983 SC 803 : 1983 (3) SCR 337: (1983) 3 SCC 387]. The inhibitions contained in Art. 21 against its deprivation extends even to those faculties by which life is enjoyed. In Bandhua Mukti Morcha Vs. U.O.I., AIR 1984 SC 802: 1984 (2) SCR 67: 1984 (3) SCC 161, it was held that the right to life under Article 21 means the right to live with dignity, free from exploitation.

In case, the wife is suffering from paucity of funds or is unable to maintain herself or she has got no sufficient means for livelihood, then, the court, in a pending suit for restitution of conjugal rights, has got ample powers to direct for payment of maintenance in pursuance to the powers conferred by Section 151 of the Code of Civil Procedure. Needless to say that right to life and livelihood does not mean animal living but a quality of life suiting to the status of the person concern.

29. Analogy may also be drawn from the Protection of Women from Domestic Violence Act, 2005 where the Parliament to its wisdom, deals with the situation with regard t