Section 4(1) of the Act contains the provision for maintenance to the divorced woman from her children but this does in fact not debar the divorced Muslim woman from invoking the provision of Section 125 of Cr. PC against her children. Even under the Act the application of the provisions of Section 125 of Cr. PC has been contemplated and the Act has not specifically made any ouster of the application of Section 125 Cr.PC Section 5 of the Act has imposed one condition for the application of sections 125 to 128 of Cr. P C against former husband of the divorced Muslim woman but it is conspicuously silent as regards their application against others. The framework of the Act itself and the ratio decided in the case of Danial Latifi (supra) which we have discussed above will show that the Act itself is not a substituted measure of Section 125 of Cr. P C but in addition thereto. This suggests that the proceeding under Section 125 of Cr.PC against children of the respondent mother is quite maintainable despite the pendency of the proceeding under sections 3, 4 of the Act against her husband.
IN THE HIGH COURT OF CALCUTTA
C.R.R. No. 516 of 2001
Decided On: 10.12.2001
Makiur Rahaman Kha and Ors. Vs. Mahila Bibi
Hon'ble Judges/Coram:
N.C. Sil, J.
Citation: MANU/WB/0390/2001.
1. The present revisional application was directed against the order dated 24.01.2001 passed by Sri M. S. Dwivedy, learned Sub-divisional Judicial Magistrate, Uluberia, Howrah in connection with Misc. Case No. 85 of 1998 under Section 125 of the Code of Criminal Procedure.
2. In the said application the maintenance under Section 125 of the Code of Criminal Procedure was claimed by the mother, who was divorced by her husband, from her two sons. The learned Sub-divisional Judicial Magistrate after having considered the materials placed before him was pleased to allow the application for maintenance under Section 125 of the Code of Criminal Procedure and directed the O. P. sons to pay a sum of Rs. 250/- each per month from the date of filing of the petition.
3. It is stated in the revisional application that the respondent mother had filed application under Section 125 of the Code of Criminal Procedure being Misc. Case No. 155 of 1986 claiming maintenance from her husband and her husband took the plea in that case that he had since divorced his wife and she was thus determined to be a divorced Muslim woman. It is also stated in the revisional application as to how the petitioner No. 2 was neglected by his mother who had left the house of her husband at the time when the petitioner No. 2 was a mere child of 3/4 years. It is also stated that the petitioner No. 2 is an assistant of his brother, the petitioner No. 1 and the petitioner No. 1 earns only Rs. 100/- per month while the earning of petitioner No. 2 is only R. 50/- per month. It is also stated that the respondent-mother failed to discharge her duties by showing love and affection to the revisionists and she had left the house of her husband of her own without any reason. It is again stated in the revisional application that a divorced Muslim wife is not entitled to claim maintenance from her sons as there is no provision under the Muslim law. It is also mentioned that the respondent mother has filed a Misc. Case No. 15 of 1997 under Sections 3, 4 of Muslim Women (Protection of Rights on Divorce) Act, 1986 against her husband which is still pending.
4. It is argued by the learned Advocate for the revisionists before me that since a maintenance case filed by the respondent mother against her husband under Sections 3, 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as 'Act' for brevity), the parallel proceeding under Section 125 of Cr. P C against her sons is not maintainable. The learned Advocate for the respondents has drawn my attention to the provisions of the Section 3(3) of the Act and tries to impress upon me that the husband of a divorced Muslim woman is obliged to pay maintenance to his divorced wife during her life time till her re-marriage. The learned Advocate for the respondent has, on the other hand, drawn my attention to the provisions of Section 125(1)(d) of the Code of Criminal Procedure and tries, to Impress upon me that the divorced woman is also entitled to get maintenance from her sons and the proceeding under Section 3 of the Act is only against the husband of the divorced Muslim woman.
5. It appears from the judgment of the learned trial Magistrate that a similar point was raised before him but the learned Magistrate just relying on the submissions of learned advocate for the petitioner before him came to the conclusion that the sons of the petitioner are liable to pay maintenance to their mother under Section 125 Cr. P C.
6. Thus, the point for consideration before us is whether a divorced Muslim woman is entitled to invoke the provisions of Section 125 of Cr.PC for her maintenance against her sons and whether such a proceeding under Section 125 of Cr. P C against the sons of the divorced Muslim woman is maintainable when a proceeding under sections 3, 4 of the Act is pending before the Court of competent Jurisdiction.
7. Section 3 Sub-section (3) Clause (a) of the Act reads as under :
"Where an application has been made under Sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that-
(a) her husband having sufficient means, has failed or neglected to make of pay her with in the iddat period a reasonable and fair provision and maintenance for her and the children"
The word "within" has stolen many judicial hours of the Judges and generated much controversies over its use and implication particularly in view of the interests of the relatives in the properties to be inherited after the demise of the divorced Muslim woman and to pay maintenance to her and also the liabilities of the State Wakf Board to pay such maintenance to such divorced Muslim woman under the provisions of Section 4 Sub-sections (1) and (2) of the Act. In almost all the judicial pronouncements the backdrop of Shah Bano's case (Mohd. Ahmed Khan v. Shah Bano Begum, MANU/SC/0194/1985 : 1985CriLJ875 ) sometimes the word "within" had been interpreted as "for" and sometime as "during". But on close scrutiny and having taken the entire gamut of the Act into consideration, it appears that the word "within" finds mention in number of places in the Act. Accordingly there arises no occasion to conceive of the situation that the legislators were forgetful about implication and purport of the word "within" giving rise to any speculation to go for other interpretation of the word than its usual and ordinary meaning. The question may be posed against this line of thought as to why the provisions of maintenance from the relatives and then from the State Wakf Board have been incorporated in the Act. In order to find the answer and keep the word "within" appearing in Clause (a) of sub-section (3) of Section 3 of the Act within its natural and literal meaning, the capability of the Muslim husband who has divorced his wife to pay and provide reasonable and fair maintenance may be conceived in its proper perspective. And this leads me to believe that where the Muslim husband is incapable of maintaining his divorced wife who is incapable of maintaining herself and not remarried, the provisions for maintenance from other sources contemplated and provided in the provisos to Sub-section (1) of Section 4 of the Act and this is how the word "within" appearing in Clause (a) Sub-section (3) of Section 3 of the Act may be kept within its natural and literate meaning.
8. Our above view finds support from the ration decided in the case of Danial Latifi & Anr. v. Union of India MANU/SC/0595/2001 : 2001CriLJ4660 in which it was observed by the Special Bench of the Hon'ble Supreme Court consisting of five Hon'ble Judges:
'The contention that the expression "within" in Section 3(1)(a) should be read as "during" or "for" cannot be accepted because words cannot be construed contrary to their meaning as the word "within" would mean "on or before", "not beyond" and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time."
9. The Constitutional validity of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 has been challenged before the Hon'ble Supreme Court in the case of Danial Latifi (supra) and it was submitted that,
"(i) Section 125 Cr.PC, was enacted as a matter of public policy, in order to provide a quick summary remedy to persons unable to maintain themselves; that the provision reflected the moral stance of the law and ought not to have been entangled with religion and religion-based personal laws; (ii) Section 125 Cr. P C also furthers the concept of social justice embodied in Article 21 of the Constitution of India; hence excluding divorced Muslim women from its protection is a discrimination against them; (iii) the inevitable effect of the Act is to nullify the law declared by the Supreme Court in Shah Bano case MANU/SC/0194/1985 : 1985CriLJ875 , which is most improper; (iv) the Act is un-Islamic and also has the potential to suffocate Muslim women and to undermine the basic secular character of the Constitution; (v) the Act is violative of Articles 14 and 21."
10. After hearing the parties the Special Bench consisting of five Hon'ble Judges of the Hon'ble Supreme Court was pleased to uphold the validity of the Act and sum up their conclusions as below :
" 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 is not confirmed 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."
The Hon'ble Supreme Court was further pleased to hold that.
"All other matters where there are other questions raised, the same shall stand relegated for consideration by appropriate Benches of this Court."
11. It is clear that a Muslim divorced woman cannot invoke the provisions of Section 125 of Cr. P C against her former husband if she does not exercise her option under the provisions of Section 5 of the Act. Section 4(1) of the Act contains the provision for maintenance to the divorced woman from her children but this does in fact not debar the divorced Muslim woman from invoking the provision of Section 125 of Cr. PC against her children. Even under the Act the application of the provisions of Section 125 of Cr. PC has been contemplated and the Act has not specifically made any ouster of the application of Section 125 Cr.PC Section 5 of the Act has imposed one condition for the application of sections 125 to 128 of Cr. P C against former husband of the divorced Muslim woman but it is conspicuously silent as regards their application against others. The framework of the Act itself and the ratio decided in the case of Danial Latifi (supra) which we have discussed above will show that the Act itself is not a substituted measure of Section 125 of Cr. P C but in addition thereto. This suggests that the proceeding under Section 125 of Cr.PC against children of the respondent mother is quite maintainable despite the pendency of the proceeding under sections 3, 4 of the Act against her husband. I do not find any illegality or irregularity as regards the amount of maintenance awarded by the learned Magistrate in favour of the respondent mother against her children under Section 125 of Cr. P C.
Accordingly, the present revisional application is dismissed on contest. The impugned order dated 24.1.2001 passed by the learned Sub-Divisional Judicial Magistrate, Uluberia is hereby affirmed. The parties are directed to bear their respective costs.
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