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High Court Of Madhya Pradesh
S. K. CHAWLA
ABDUL RASHID - Appellant
Versus
FARIDA - Respondents
CRIMINAL REVISION 19 Of 1990
Decided On : 10/09/1993
MAINTENANCE - MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - SECTION 3, 4, 5, 7 - CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 125 - APPLICABILITY - DIVORCED MUSLIM WOMAN - MAINTENANCE - RIGHT TO - EXTENT AND SCOPE - OPTION TO BE GOVERNED BY THE PROVISIONS OF SECTIONS 125 TO 128, CR.P.C. - EXERCISE OF - CONDITIONS PRECEDENT.
Fact of the Case:
A Muslim woman, Farida, filed an application under Section 125, Cr.P.C. against her husband, Dr. Abdul Rashid, for maintenance of herself and her minor daughter. During the pendency of the application, Dr. Abdul Rashid gave Talak to Farida, which became operative from 30-7-1985. On 19/05/1986, the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Muslim Women Act) came into force. Dr. Abdul Rashid filed an application in the Magistrate's Court contending that after the enforcement of the Muslim Women Act, the application under Section 125, Cr.P.C. was not prosecutable. The Additional Chief Judicial Magistrate dismissed the application insofar as it was on behalf of the divorced woman, but decided to proceed ahead with the application insofar as it was on behalf of the minor daughter. Farida filed a revision petition in the Court of Session, and the Additional Sessions Judge reversed the decision of the Additional Chief Judicial Magistrate, holding that the application even on behalf of the divorced woman was prosecutable after the enforcement of the Muslim Women Act.
Finding of the Court:
The Court held that Section 125, Cr.P.C. is a secular provision appearing in the Code of Criminal Procedure and is applicable to all persons belonging to all religions. The religion professed by the parties has no place in the scheme of Section 125. A Muslim wife, who is unable to maintain herself, can invoke the provisions of Section 125, Cr.P.C. and there is nothing which comes in her way. However, the moment she is divorced or obtains a divorce, the provisions of the Muslim Women Act would come into play and her application would become governable by its provisions, for the period after the date of divorce. The Court further held that a divorced Muslim woman, irrespective of being able to maintain herself or not, desirous of obtaining maintenance from her former husband, can get maintenance from him, confined to Iddat period. Her proper remedy to recover this limited kind of maintenance and also to recover maintenance for her children being maintained by her up to their ages of 2 years, for Mahr or dower and for gifted properties, is to make an application under Section 3 (2) of the Muslim Women Act. It is only when the divorced Muslim woman makes an application under Section 3 (2) of the Muslim Women Act that the question of parties opting under Section 5 of the Act to be governed by the provisions of Sections 125 to 128, Cr.P.C. can arise.
Issues: 1. Whether a divorced Muslim woman can file an application for maintenance under Section 125, Cr.P.C. after the enforcement of the Muslim Women Act, 1986? 2. Whether a divorced Muslim woman is entitled to maintenance from her former husband under Section 125, Cr.P.C. for the period after the date of divorce? 3. Whether a divorced Muslim woman can exercise the option under Section 5 of the Muslim Women Act to be governed by the provisions of Sections 125 to 128, Cr.P.C.?
Ratio Decidendi: 1. Section 125, Cr.P.C. is a secular provision and is applicable to all persons belonging to all religions. The religion professed by the parties has no place in the scheme of Section 125. 2. A Muslim wife, who is unable to maintain herself, can invoke the provisions of Section 125, Cr.P.C. and there is nothing which comes in her way. However, the moment she is divorced or obtains a divorce, the provisions of the Muslim Women Act would come into play and her application would become governable by its provisions, for the period after the date of divorce. 3. A divorced Muslim woman, irrespective of being able to maintain herself or not, desirous of obtaining maintenance from her former husband, can get maintenance from him, confined to Iddat period. Her proper remedy to recover this limited kind of maintenance and also to recover maintenance for her children being maintained by her up to their ages of 2 years, for Mahr or dower and for gifted properties, is to make an application under Section 3 (2) of the Muslim Women Act. 4. It is only when the divorced Muslim woman makes an application under Section 3 (2) of the Muslim Women Act that the question of parties opting under Section 5 of the Act to be governed by the provisions of Sections 125 to 128, Cr.P.C. can arise.
Final Decision: The Court partly allowed the revision petition. The impugned order of the Additional Sessions Judge was maintained insofar as it directs the application under Section 125, Cr.P.C., insofar as made by Mst. Farida on her own behalf, to be prosecutable. His direction that the parties would be allowed to exercise the option under Section 5 of the Muslim Women Act was set aside. The application was held to be prosecutable on matters mentioned in paragraph 11 of the judgment.
( 1 ) THE order under challenge in this revision is order dated 22-1-1990 by, Additional Sessions Judge, Sheopurkalan, holding that application for maintenance under S. 125, Cr. P. C. by a Muslim divorced woman was prosecutable even after the enforcement of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
( 2 ) A Muslim woman named Farida (impleaded as non-applicant in this revision) filed an application under S. 125, Cr. P. C. against her husband Dr. Abdul Rashid (applicant in this revision) on 16-6-1980 before Judicial Magistrate, First Class, Sheopur. That application was for maintenance of herself and her minor daughter Shabnam, aged than 8 years. During the pendency of that application, the husband Dr. Abdul Rashid gave Talak to his wife. That Talak became operative at least from 30-7-1985, when the husband filed an application in the Magistrate's Court informing his wife thereby that he had given Talak to her. This legal position under Mahomedan Law could not be contested and attempt to contest position was given up by Farida's counsel in this Court. It was afterwards on 19/05/1986 that the Act called the Muslim Women (Protection of Rights on Divorce) Act, 1986 - hereinafter called the Muslim Women Act - came into force. On 22-11-l986, the husband Dr. Abdul Rashid made an application in the Magistrate's Court that after the enforcement of the Muslim Women Act, the application under s. 125, Cr. P. C. was not prosecutable. The learned Additional Chief Judicial Magistrate by order dated 23-2-1987 held that the application was not prosecutable so far as it was on behalf of the divorced woman, but it was prosecutable so far as it was on behalf of the minor daughter. So holding, the learned Additional Chief Judicial Magistrate dismissed that application so far as it was on behalf of the divorced woman, but decided to proceed ahead with that application so far as it was on behalf of minor daughter. Mst. Farida went in revision to the Court of Session and the learned Additional Sessions Judge, Sheopurkalan by the impugned order dated 22-1-1990 reversed the decision of the Additional Chief Judicial Magistrate, holding that the application even on behalf of the divorced woman was prosecutable after the enforcement of the Muslim Women Act, and further holding that in prosecution of that application the parties would be required to exercise their option under Sec. 5 of the Act to say whether they would prefer to be governed by the provisions of Ss. 125 to 128, Cr. P. C. or by the provisions of the Muslim Women Act. It is this order, which is impugned in this revision by the husband.
( 3 ) THE contention put forward by learned counsel for the applicant was that the present application for maintenance, so far as it was on behalf of Muslim divorced woman, which was admittedly the status of non-applicant Farida in this revision, became unprosecutable after the enforcement of the Muslim Women Act and there could be no question of parties being given any opportunity to exercise option referred to in his order by the learned Additional Sessions Judge. The application was, therefore, rightly dismissed by the learned Additional Chief Judicial Magistrate. ( 4 ) THE law with respect to applications for maintenance under S. 125, Cr. P. C. vis-a-vis Mahomedan Law needs to be examined at this stage. To begin with, it must be said that, S. 125, Cr. P. C. is a secular provision appearing in Code of Criminal Procedure. It provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of, the parties Nanak Chand v. Chandra Kishore. in AIR 1970 SC 446 : (1970 Cri LJ 522 ). The religion professed by the parties has no place in the scheme of S. 125. As was aptly observed by the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum in AIR 1985 SC 945 : (1985 Cri LJ 875): ``whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is
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