2008 Supreme(MP) 1025

B.M. Gupta, J.
Shabana Bano (Smt.) v. Imran Khan
Criminal Revision No.285 of 2008 (Gwalior) : against the order of
Additional Principal Judge, Family Court, Gwalior, passed in
Miscellaneous Criminal Case No.286 of 2006; Decided on 26.9.2008.

Headnote:Criminal Procedure Code, 1973—Section 125—Muslim Women (Protection of Rights on Divorce) Act, 1986—Sections 3 and 4—Right of divorced Muslim Woman to maintenance—Proof of divorce is required—Petitioner was divorced by respondent by divorce deed dated 20.8.2004—Magistrate treating it valid divorce committed no error—Liability of Muslim husband to his divorced wife arising under Section 3 of the Act to pay maintenance is not confined to Iddat period only—He has to make reasonable and fair provision for future of divorced wife which includes her maintenance as well —Divorced Muslim woman however could claim maintenance for child under Section 125 Cr.P.C.—After divorce she herself could not ask for maintenance under Section 125 Cr.P.C.—If claim of husband about divorcing the wife was accepted, rights of petitioner wife could be considered by Magistrate in same petition if petition under both the provisions was to be filed.

       Held: The factum of divorce as alleged on behalf of the respondent has not been countered on behalf of the petitioner during the course of arguments. Hence, there appears no dispute on this point. The dispute between the parties is that whether the date of divorce is 20th August, 2004 as per the deed of divorce (Ex. NA4), as submitted on behalf of the respondent or it is 6th December, 2006 as has been submitted on behalf of the petitioner when the same has been proved in the evidence. The above deed of divorce has not been disputed, but only because it is proved on 6th December, 2006, on this ground, the petitioner’s claim is that the date of divorce will be 6th December, 2006. In support, he has drawn attention at para 16 of the judgment of Apex Court in the case of Shamim Ara v. State of U.P. & another, 2002 (7) SCC 518, which goes as under:

        “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 effecting talaq on the date of delivery of the copy of the written statement to the wife. The respondent No. 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….” (Emphasis supplied)

       Upon perusal of the above quoted observations of the Apex Court, the proof of the divorce is required. It is not observed that from the date of proof, the divorce will be treated to be effective. Hence, in this case, if the learned Judge has observed that the petitioner has been divorced by the respondent on 20th August 2004, on the basis of the aforementioned divorce deed, no error appears therein. (Para 6)

       Thus, now it is settled that the liability of a Muslim husband to his divorced wife arising under Section 3 (1) (a) of the Act to pay maintenance is not confined to Iddat period only. He has to make reasonable and fair provision for future of the divorced wife, which obviously includes her maintenance as well. It is obligatory for the husband to make these provisions within the period of Iddat. After divorce that liability of the Muslim husband is under Section 3 of the Act and not under Section 125 of the Cr.P.C. Accordingly, these two questions are decided. (Para 7B)

       It is true that after divorce, a claim under Section 125 of Cr.P.C. cannot be maintained by a divorced Muslim wife, but in the light of the aforementioned observations in the case of Danial Latifi (supra), it cannot be accepted that Muslim husband is totally exonerated after giving divorce to his wife. As observed in the aforementioned judgment of the Apex Court, the liability of the Muslim husband to his divorced wife arising under Section 3(l)(a) of the Act to pay maintenance is not confined to Iddat period only. He has to make reasonable and fair provisions within the period of Iddat for the future of the divorced wife i.e. even for post Iddat period also, which obviously includes her maintenance as well. Hence the contention of Shri Gauri that after the divorce, the respondent is not responsible for the maintenance of his wife cannot be sustained. (Para 8A)

       Now the next controversy between both the parties is that for such provision, whether separate application is required or in the same application filed under Section 125 of CrPC, right of the divorced wife under Section 3 of the Act can be considered? This dispute has been decided by the Hon’ble Apex Court in its recent judgment having more or less similar facts in Iqbal Bano v. State of U.P. and another, 2007 (6) SCC 785. In this case, an application under Section 125 was filed by the appellant wife on 21st February 1992. On 28th May 1992, written statement was filed by the respondent/husband stating therein that long back he has divorced his wife by addressing “Talaq, Talaq, Talaq.” It was further stated that there was severance of marital ties between them for years as the divorce was over by the utterance of the word “talaq” thrice and he had also paid mehr and as the iddat period was over the claim was not acceptable. Learned Magistrate negated the factum of divorce and allowed application for maintenance. In revision, the learned Additional Sessions Judge accepted the plea of divorce and held that after coming into force of the Act, petition under Section 125 of CrPC filed by the Muslim wife is not maintenance or not? (Para 9A)

       Admittedly, the cases arising out of Sections 3 and 4 of the Act are to be heard by a Magistrate and not by a District Court or any other subordinate Civil Court. The court of Magistrate cannot be said to be a subordinate Civil Court, hence the term mentioned in clause (f) (supra)—‘on a suit or proceeding for maintenance’—relates with the jurisdiction of a District Court and of a subordinate Civil Court. It does not relate with the court of a Magistrate. This observation gets further support from sub-section (2) of Section 7 of the Act of 1984. It provides that a Family Court shall also have and exercise:—(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure, 1973. Enacting sub-section (2) also supports the aforementioned observation. In clause (b) of (sub-section (2), it is further provided that a Family Court shall also have and exercise, such other jurisdiction as may be conferred on it by any other enactment. By enacting this general provision, the intention of legislature is very clear, that unless by the provisions of any other enactment no jurisdiction has been conferred to the Family Court, the cases arising from such other enactment will not be heard by the Family Court. (Para 9e)

       Result: Revision dismissed.