ORDER
S.R. Bannurmath, J.
1. Heard the learned Counsel for the petitioner.
2. The petitioner/husband has opposed the application filed by the respondent under Section 125 of the Cr. P.C., claiming maintenance from the petitioner and orders passed thereon,
3. Though the marriage between the petitioner and the respondent was not disputed, the only ground of opposing the maintenance application by the petitioner was that it was an attitude of the wife in not co-operating with the petitioner to lead marital life and as such after about two years of the marriage, the petitioner along with lour elders of his community went to the parental house of the respondent at Muddebihal and in spite of request made by all, as the respondent refused to come and live with the petitioner, he pronounced 'talaq' three times and thereafter after coming back to Sindhagi, his place of residence, also issued 'talaq' notice through his Counsel. As such it is contended that in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as 'Act 1986') the petitioner is not entitled to pay any maintenance to the respondent.
4. On the other hand the respondent denied the alleged 'talaq' by the petitioner and contended that her marriage is still subsisting and as such the provisions of the Muslim Women Act are not attracted. In order to substantiate their claims both parties have, besides, themselves examined independent witnesses also. On appreciation of the entire evidence, the learned Magistrate came to the conclusion that in view of the discrepancy and contradictory nature of evidence of the petitioner and his witnesses, factum of divorce or talaq by petitioner with respondent is not at all proved and as such the provisions of the Divorce Act are not attracted. The Trial Court also found that there is enough material to show that the petitioner had neglected to look after his wife and as such she is entitled for maintenance. Accordingly, by the order dated 5-5-2000 the Court allowed the application of the respondent under Section 125 of the Cr. P.C. and ordered payment of maintenance at the rate of Rs. 450/-per month to the petitioner from the date of the petition.
5. Aggrieved by the same, the petitioner approached the learned Sessions Judge in criminal revision petition and the learned Sessions Judge on reconsideration of the entire material by the order dated 29-6-2002 rejected the revision petition thereby affirming the order of the Trial Court. Hence, the present petition.
6. Reiterating the arguments in the Courts below, it is contended that in view of the provisions of the Act the respondent could not have invoked jurisdiction of the Criminal Court under Section 125 of the Cr. P.C., for claiming maintenance especially in view of the personal law applicable to the parties that, viz., the Act 1986. In this regard, the learned Counsel has relied upon the pronouncement of the Full Bench of Andhra Pradesh in the case of Usman Khan Rahamani v. Fathimunnisa Begum, 1990 Cri. L.J. 1364 (AP) .
7. I have perused the judgment. It is to be seen that in the said case, the Full Bench was required to consider the following questions.--
'(1) Whether a divorced muslim woman can claim maintenance under Section 125 of the Code from her former husband even after passing of the Act of 1986?
(2) Whether the maintenance contemplated under Section 3(1)(a) of the Act of 1986 is restricted only for the period of 'Iddat' or whether a fair and reasonable provision has to be made for future also within the period of Iddat?
(3) How far Sections 125 to 128 of the Code can be held to be applicable after coming into force of the Act of 1986 and what should be the mode of disposal of the cases pending before the Courts under these sections?'
8. It is to be noted that in that case the factum of divorce or talaqbetween the parties was not at dispute and as such in view of the nonobstante clause under Section 3 of the Act, the Full Bench of AndhraPradesh High Court ruled that divorced muslim woman is not entitledto take relief under Section 125 of the Cr. P.C.
9. There cannot be any dispute about the law laid down by the Full Bench of Andhra Pradesh High Court but the basic question is whether when divorce or talaq is itself in dispute, husband can take the shelter under the personal law viz., Act 1986 and as such claim that no relief can be granted under Section 125 of the Cr. P.C., which is general law of the land.
10. So far as provisions under Section 125 of the Cr. P.C. are concerned, the Apex Court in the case of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., : 1979CriLJ3 , has held that the provision is a measure of social justice especially enacted to protect the women and children and basically it falls within the constitutional sweep of Article 15(4) of the Constitution of India read with Article 39 of the Constitution. Later in the case of Mohammed Ahmed Khan v. Shah Bano Begum, : 1985CriLJ875 it was further made clear that the religion professed by a spouse or by the spouses has no place in the scheme under Section 125 of the Cr. P.C. Whether the spouses are Hindus or Muslims, Christians or Parsis, is wholly irrelevant in the application of the provision. Similar is the later pronouncement of the Apex Court in the case of Mst. Zohara Khatoon v. Mohd. Ibrahim, : 1986CriLJ556 . As such the contention of the learned Counsels for the petitioner that in view of the personal law of the parties and as they both being Muslims, the provisions of Section 125 of the Cr. P.C. are not at all attracted is without any merits.
11. However even if the provisions of the Act 1986 are taken into consideration, the same are applicable only to divorced women and this Act is for the protection of their rights. Section 3 of the Act reads as follows.--
'3. Mahr or other properties of Muslim woman to be given to her at the time of divorce.--(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to--
(a) a reasonable and fair provision and maintenance to be made and paid to her with the iddat period by her former husband;
(b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in Clause (d) of Sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.
(3) 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 or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or
(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in Clause (d) of Sub-section (1) have not been delivered to her,
make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in Clause (d) of Sub-section (1) to the divorced woman:
Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.
(4) If any person against whom an order has been made under Sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code'.
12. On considering the provisions it is clear that a divorced woman is prohibited from claiming maintenance after the period of Iddat and nothing more. No doubt by considering the non obstante clause in Section 3, the Andhra Pradesh Full Bench has held that the provisions of Section 125 of the Cr. P.C., are not attracted or application under Section 125 of the Cr. P.C. is not maintainable so far as Muslim divorced women are concerned that too beyond Iddat period. Taking into consideration both these provisions, in my view, basically it is required to be seen and decided prima facie whether the woman claiming maintenanceis a divorced woman and as such is precluded from claiming maintenance under Section 125 of the Cr. P.C. in view of the specific provisions under the Act 1986. This is also considered by this Court in the case of Smt. Mahaboobi v. Ibrahimsab Allisab Chanegan, 2000(2) KCCR 824, In that case as it was not shown or proved that there was divorce and as such, this Court held that without such finding, provisions of the Act 1986 are not attracted.
13. As such in my view, in this case also it is necessary to consider the material evidence produced by both sides to substantiate their claim and find out whether the findings arrived at by the Court below are justifiable or not.
14. It is the case of petitioner who has been examined as D.W. 1 that after about two years of the marriage as the wife was not inclined to live with him and was in fact staying in her parental house at Muddebihal, he along with four elders including one Nabisab (D.W. 2) went to Muddebihal and in spite of sufficient advise by all the concerns, when she refused to go and live with the petitioner, he pronounced talaq three times in presence of the respondent and elders and thereafter coming back to Sindhagi he had sent talaq notice through his Advocate as well as Rs. 800/-. This evidence of D.W. 1 has been contradicted by his own witness Nabisab, D.W. 2. He has stated that no doubt he had accompanied the petitioner to Muddebihal but on refusal of respondent to come with the petitioner, petitioner has simply said
Taking que from this, especially the words
it is contended that this amounts to pronouncement of talaq. I am afraid this is not correct. To give talaq as is required, has to be given by pronouncing the word 'talaq' three times. It is also to be noted that the evidence of this witness is that after coming back to Sindhagi D.W. 1 informed him that he has pronounced the 'talaq' three times in the office of one Angadi, Advocate, at Sindhagi whereas, the petitioner claims to have pronounced 'talaq' three times in presence of respondents and others. In view of this contradictory nature of evidence as well non-examination of the said Advocate, Sri Angadi, or even non-production of the alleged legal notice said to have been issued by Sri Angadi; the specific stand of the respondent and the findings arrived at by the Courts below that the petitioner has failed to prove the aspect of divorce appears to be just and proper. Even on reconsideration of the entire evidence, I do not find any illegality or perversity in appreciation of the aspect.
15. If that is so, it is clear that if the marriage of the respondent is subsisting with the petitioner, as is prima facie found, the provisions of the Act 1986 are not at all attracted and as such as per the pronouncements of the Apex Court in Mohommed Ahmed Khan's case, supra, the order of maintenance by the Trial Court affirmed by the Revisional Court, are just and proper and need no interference. Petition is devoid of merits and the same is rejected.