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1994 JLJ 381
S.K. Chawla, J.
Abdul Rashid (Dr.) v. Mst. Farida
Cr. Revn. No. 19 of 1990; against the order of Additional Sessions Judge,
Sheopurkalan, passed in Criminal Revision No. 54 of 1988; Decided on 9.10.1993.
(2) Criminal P.C., 1973 -- S. 125 -- applies to all persons irrespective of their religion being a secular provision. AIR 1970 SC 446 and 1985 JLJ 489 (SC) followed. [Para 4
(3) Criminal P.C., 1973 -- S.125 -- applies to muslim women -- she can prosecute maintenance case even after enforcement of Muslim women (Protection of Rights on Divorce) Act, 1986 -- on divorce she will be governed by the provisions of the Act. [Para 5
(4) Muslim Women (Protection of Rights on Divorce) Act, 1986 -- S.3 -- divorced woman -- husband‘s liability to give maintenance ceases after period of Iddat -- she may claim other articles also alon.z with maintenance amount. [Para 5
(5) Muslim Women (protection of Rights on Divorce) Act, 1986 -- Ss. 3 (2) and 5 -- Criminal P.C., 1973 -- Ss.125 to 128 -- option under S.5 -- can be exercised only on filing on application by divorced wife under S. 3 (2) of the Act -- no application filed -- no question of option whether to be governed by Ss. 125 to 128 of the Code arises.
It is only when divorced Muslim woman makes an application under section 3 (2) of the Act, that there can arise any question about exercise of option by the divorced woman and her former husband under section 5 of the Act, to be governed by the provisions of sections 125 to 128 Cr.P.C. In other words, if no application has been made by a divorced Muslim woman under section 3 (2), there can arise no occasion for any kind of option being exercised by the parties to be governed by the provisions of sections 125 to 128 Cr.P.C. [Para 6
(6) Muslim Women (protection of Rights on Divorce) Act, 1986 -- S.7 – Criminal P.C., 1973 -- S.125 -- application under S.125 of the Code pending on enforcement of the Act -- such application has to be decided in accordance with provisions of S. 7 of the Act -- liability of husband of divorced wife for maintenance cannot be enforced for more than Iddat period. [Para 6
(7) Muslim Women (protection of Rights of Divorce) Act, 1986 -- Ss. 3, 4 and 7 -- Criminal P.C., 1973 -- S. 125 -- application by Muslim woman under S. 125 pending -- divorce takes place during pendency -- she would be governed by the provisions of the Act because of substantive overriding law enacted under Ss. 3 and 4 of the Act. [Para 7
(8) Criminal P.C., 1973 -- S. 125 -- granting of maintenance from date of order or from date of application -- in either case magistrate has to give reasons.
1991 JU 405 relied on. [Para 10
¼1½ eqfLye fof/k & Hkj.kiks"k.k ds fy, dk;Zokgh U;k;ky; eas yafcr & ifr }kjk vkosnu fd mlus viuh iRuh ls fookg foPNsn dj fy;k gS & fookg foPNsn dh vkosnu dh rkjh[k ls mi/kkj.kk dh tk,xhA ¿iSjk 2
¼2½ naM çfØ;k lafgrk] 1973 & /kkjk 125 & /keZfujis{k mica/k gksus ds dkj.k lHkh O;fDr;ksa ij] muds /keZ ls fujis{k] ykxw gksrk gSA , vkb vkj 1970 ,l lh 446 rFkk 1985 ts ,y ts 489 ¼mPpre U;k-½ vuqlfjrA ¿iSjk 4
¼3½ naM çfØ;k lafgrk] 1973 & /kkjk 125 & eqfLye fL=;ksa ij ykxw gksrh gS & og eqfLye L=h ¼fookg foPNsn ij vf/kdkj laj{k.k½ vf/kfu;e] 1986 ço`r gksus ds Ik‘pkr Hkh Hkj.kiks"k.k dk ekeyk vfHk;ksftr dj ldrh gS & fookg foPNsn ds Ik‘pkr og vf/kfu;e ds mica/kksa ls fofu;fer gksxhA ¿iSjk 5
¼4½ eqfLye L=h ¼fookg foPNsn ij vf/kdkj laj{k.k½ vf/kfu;e] 1986 & /kkjk 3 & fofPNUu fookg L=h & ifr dk Hkj.kiks"k.k nsus dk nkf;Ro bír dh vof/k ds Ik‘pkr lekIr gks tkrk gS & og Hkj.kiks"k.k dh jde ds vU; oLrqvksa dk Hkh nkok dj ldrh gSA ¿iSjk 5
¼5½ eqfLye L=h ¼fookg foPNsn ij vf/kdkj laj{k.k½ vf/kfu;e] 1986 & /kkjk 3 ¼2½ rFkk 5 & naM çfØ;k lafgrk] 1973 & /kkjk 125 ls 128 & /kkjk 5 ds v/khu fodYi & fofPNUu fookg L=h }kjk dsoy vf/kfu;e dh /kkjk 3 ¼2½ ds v/khu vkosnu Qkby djds fd;k tk ldrk gS & vkosnu Qkby ugha fd;k x;k & fodYi] lafgrk dh /kkjk 125 ls 128 rd }kjk fofu;fer gksxk D;k] ;g ç‘u mn~Hkwr ugha gksrkA
fofPNUu fookg iRuh rFkk mlds iwoZ ifr }kjk vf/kfu;e dh /kkjk 5 ds v/khu fodYi ds ç;ksx dk flfoy çfØ;k lafgrk dh /kkjk 128 ls 128 rd }kjk fofu;fer gksus dk ç‘u dsoy rc gh mn~Hkwr gks ldrk gS tc fd fofPNUu fookg eqfLye L=h vf/kfu;e dh /kkjk 3¼2½ ds v/khu dksbZ vkosnu Qkby ugha fd;k gS] Ik{kdkjksa }kjk fl-ç-la- dh /kkjk 125 ls 128 rd }kjk fofu;fer gksus okys fdlh çdkj ds fodYi ds ç;ksx dk dksbZ volj mn~Hkwr ugha gks ldrkA ¿iSjk 6
¼6½ eqfLye L=h ¼fookg foPNsn ij vf/kdkj laj{k.k½ vf/kfu;e] 1986 & /kkjk 7&naM çfØ;k lafgrk] 1973 & /kkjk 125 & lafgrk dh /kkjk 125 ds v/khu vkosnu vf/kfu;e ds ço`Ùk gksus ds le; yafcr & ,slk vkosnu vf/kfu;e dh /kkjk 7 ds vuqlkj fofuf‘pr fd;k tkuk gksxk & fofPNUu fookg iRuh ds ifr dk Hkj.kiks"k.k ds fy, nkf;Ro bír dh vof/k ls vf/kd ço`r ugha fd;k tk ldrkA ¿iSjk 6
¼7½ eqfLye L=h ¼fookg foPNsn ij vf/kdkj laj{k.k½ vf/kfu;e] 1986 & /kkjk 3] 4 rFkk 7 & naM çfØ;k lafgrk] 1973 & /kkjk 125 & eqfLye L=h }kjk /kkjk 125 ds v/khu vkosnu yafcr & yacu ds nkSjku fookg foPNsn & og vf/kfu;e dh /kkjk 3 rFkk 4 ds v/khu lkjoku v/;kjksgh fof/k ds vf/kfu;eu ds dkj.k vf/kfu;e ds mica/kksa ls fofu;fer gksxhA ¿iSjk 7
¼8½ naM çfØ;k lafgrk] 1973 & /kkjk 125 & Hkj.kiks"k.k vkns‘k dh rkjh[k ls vFkok vkosnu dh rkjh[k ls çnku fd;k tkuk & fdlh Hkh n‘kk esa eftLVªsV dks dkj.k crkuk gksaxsA 1991 ts ,y ts 405 voyafcrA ¿iSjk 10
S.K. Chawla, J.--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 section 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 section 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 then 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 that position was given up by Farida 's counsel in this Court. It was afterwards on May 19, 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 22.11.1986, 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 section 125 CLP.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 section 5 of the Act to say whether they would prefer to be governed by the provisions of section 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 woman 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 section 125 Cr.P.C. vis-a-vis Mahomedan Law needs to be examined at this stage. To begin with, it must be said that section 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). The religion professed by the parties has no place in the scheme of section 125. As was aptly observed by the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum in 1985 JLJ 489 = AIR 1985 SC 945: "Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is wholly irre
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