2002 Supreme(MP) 173

S.L. Kochar, J.
Munni alias Mubarik v. Shahbaz Khan
M. Cr. C. No. 4894 of 2001 (I); Decided on 11.2.2002. *

Headnote:Criminal P.C., 1973 -- S. 125 -- Muslim Women (Protection of Rights on Divorce) Act, 1986 -- Ss. 3(1) (a) and 4 -- under the general provision of Code, maintenance beyond Iddat period cannot be granted -- recourse should be taken to the provisions of the Act.

       

        naM izfdz;k lafgrk] 1973 && /kkjk 125 && eqfLye L=h ¼fookn&foPNsn ij vf/kdkj laj{k.k½ vf/kfu;e] 1986 && /kkjk 3¼1½¼d½ rFkk 4 && lafgrk ds lkekU; mica/k ds v/khu bn~nr vof/k ds i‘pkr~ Hkj.kiks"k.k iznku ugha fd;k tk ldrk && vf/kfu;e ds mica/kksa dk voyac fd;k tkuk pkfg,A

        This petition has been filed by the applicant Munnibai alias Mubarik wife of the non-applicant Shahbaz Khan under section 482 of the Code of Criminal Procedure against the order dated 4.12.2000 passed by the Third Addl. Sessions Judge, Alirajpur in Cr. Revision No. 2412000 granting maintenance to the applicant from the date of order dated 25.5.2000 passed by the Judicial Magistrate First Class, Alirajpur upto the date of divorce to her by the non-applicant, dated 7.10.2000, at the rate of Rs. 500/- (Five hundred rupees) per month.

       

        Learned counsel for the applicant Shri Yashpal Rathore has submitted that in view of the recent judgment pronounced by the Supreme Court in the case of Danial Latifi and another v. Union of India [(2001) 7 Supreme Court Cases 740], a divorced muslim woman can seek and be granted a maintenance under section 125 of the Code of Criminal Procedure beyond the period of iddat till her remarriage. Against this, the counsel for the non-applicant, Shri Sanjay Kumar Yadav submitted that in the facts and circumstances of the present case, Danial Latifis case (supra) in not applicable. A divorced Muslim woman/wife cannot seek maintenance beyond iddat under section 125 of the Code of Criminal Procedure. He supported the order passed by the revisional Court relying on the judgment passed by this Court in Julekha Bi v. Mohammad Fazal [1999 (2) MPLJ 64];

       

        Having heard learned counsel for the parties and after going through the record as well as the judgments rendered by the Supreme Court in Danial Latifis case (supra) as well as by this Court in Julakha Bis case (supra), this Court is of the view that under section 125 of the Code of Criminal Procedure, a divorced muslim wife cannot claim maintenance beyond the iddat period or till her remarriage. In the judgment of Danial Latifis case (supra), the question of validity of sections 3(1)(a) and 4 of Muslim Women (Protection of Rights on Divorce) Act, 1986 was involved and while upholding the validity of the Act, the Supreme Court, in para 36 ruled an follows :

       

        (1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of section 3(1) (a) of the Act.

       

        (2) Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance in not confined to the iddat period.

       

        (3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim Law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

       

        (4) The provisions of the Act do not offend Articles 14 15 and 21 of the Constitution of India.

       

        In the present case, right from the beginning the application was under section 125 of the Code of Criminal Procedure. Under this general provision of the Code, divorced Muslim woman/wife cannot seek and be granted maintenance beyond iddat period or till her remarriage. This view is also clear from the judgment of this Court in Julekha Bis case (supra). Therefore, the petition under section 482 of the Code of Criminal Procedure by the applicant/wife Munni alias Mubarik is devoid of any substance hence, it is dismissed accordingly. However, if so advised, she may file an application for grant of maintenance under sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 for grant of maintenance beyond iddat period or till her remarriage.