ORDER
S. Ashok Kumar, J.
1. This criminal revision case is filed by the wife and children of the respondent-husband against the order dated 6-7-1999 of the learned IV Additional District and Sessions Judge, Tirupati in Criminal Revision Petition No. 35 of 1999 which was preferred against the order dated 3-3-1999 in M.C. No. 7 of 1996 passed by the Judicial Magistrate of First Class, Vayalpad.
2. The brief facts of the case are as follows:
The petitioners filed an application under Section 125 Cr.P.C. claiming maintenance of Rs. 500/- each. The case of the petitioners is that the first petitioner is legally wedded wife of the respondent-husband and their marriage took place about five years prior to the filing of the application. Petitioners 2 and 3 born out of the above said wedlock. Apart from gold ornaments, Rs. 10,000/- was also paid to the respondent-husband towards his clothing etc., at the time of marriage. After the marriage, the first petitioner and respondent-husband lived happily for a period of four years during which period petitioners 2 and 3 were born. It is alleged that thereafter, the respondent-husband ill-treated the first petitioner and drove the petitioners away from his house and the petitioners are living in the house of the first petitioner's parents. According to the first petitioner, the respondent-husband is said to have Acres 10.00 of wet land with electric motor and Acres 15.00 of dry land from which he is getting a net income of rupees more than one lakh per year. It is also further alleged that the respondent-husband is a mechanic earning Rs. 5000/- per month and that he has six houses in Pathakalicherla village from which he is getting a rent of Rs. 3000/- per month and that he is constructing three more houses in Kothakalicherla village.
3. In the counter, the respondent-husband admitted the relationship of the parties but he denied about snatching away of the gold ornaments from the first petitioner and stated that he never harassed her. He put the blame on the first petitioner for not living together. The respondent -husband further denied of having a single cent of landed property and claimed to be an agricultural coolie and made a specific denial that he is a mechanic and he does not own any house.
4. Before the learned Magistrate on behalf of the petitioners PWs 1 and 2 were examined and Ex.P1 was marked. On behalf of the respondent-husband RWs 1 and 2 were examined and Ex.D1 was marked.
5. On a consideration of oral and documentary evidence, the learned Magistrate granted maintenance to all the petitioners at the rate of Rs. 500/- each per month. Aggrieved by the said order, the respondent-husband filed Cri. R.P. No. 35 of 1999 before the IV Additional District and Sessions Judge, Tirupati. The respondent-husband took a stand that the first petitioner is a divorced wife, therefore, she cannot invoke Section 125 of Cr.P.C. and she is covered only by Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act'). The learned Additional Sessions Judge took a view that the Muslim divorced women cannot straight away claim maintenance under Section 125 of Cr.P.C. without exercising her option to be governed by Section 125 of Cr.P.C. and that the order passed by the learned Magistrate under Section 125 of Cr.P.C. is not sustainable and hence set aside the order of the learned Magistrate. Aggrieved by the said order, this revision is filed by the petitioners (wife and children of the respondent-husband).
6. Mr. G. Allabakash, learned Counsel appearing for the revision petitioners would contend that the first petitioner is not a divorced wife but she is only a deserted wife since there is no proper pronouncement of talak by the respondent-husband and therefore, she is entitled to claim maintenance under Section 125 of Cr.P.C.
7. Per contra, Mr. Noushad Ali, learned Counsel appearing for the respondent-husband would contend that the respondent-husband has pronounced talak in the presence of District Kazi and a notice under Ex.D1 was sent to the first petitioner and therefore, there is proper communication of the divorce and in view of the same, the first petitioner should be deemed to be a divorced wife and therefore, having failed to exercise option under Section 5 of the Act, the Magistrate has got no jurisdiction to pass an order granting maintenance to the petitioners.
8. I gave my anxious consideration to the rival contentions of both sides. On facts it is to be decided whether the first petitioner is a deserted wife or divorced wife of the respondent-husband. To claim that the respondent-husband divorced the first petitioner, respondent-husband relied upon Ex.D1 which is said to be talak notice issued by the District Kazi of Chittoor. Here it is to be noticed that the maintenance petition was filed on 30.6.1996 on which date the first petitioner also filed an affidavit before the learned Judicial Magistrate of First Class, Vayalpad whereas the talak has been pronounced by the respondent-husband on 15-3-1997 as seen from Ex.D1 notice issued by the District Government Kazi of Chittoor. Therefore, on facts it is clear that talak has been pronounced only after filing of the application for maintenance by the petitioners. As seen from the returned cover from the first petitioner an endorsement was made that the first petitioner refused to receive the cover and therefore, it was returned to the sender. Therefore, it is clear that about 8 1/2 months later to the filing of the application under Section 125 of Cr.P.C. by the petitioners, the respondent-husband has pronounced talak and there is no proof that it was properly communicated to the first petitioner.
9. Section 307 of Mahomedan Law deals with different forms of divorce. Under the Muslim Law, the contract of marriage may be dissolved in any one of the following ways:
1) by the husband at his will, without the intervention of a Court;
2) by mutual consent of the husband and wife, without the intervention of a Court;
3) by a judicial decree at the suit of the husband or wife.
10. Section 308 of the said Law deals with divorce by talak. Such talak may be oral or in writing. The talak may be pronounced in the absence of the wife and it takes effect only when it is communicated to her. In this case, there is no proof that the talak pronounced by the husband was properly communicated to the wife. Therefore, the alleged divorce claimed by the respondent-husband is not valid in law. In Zamrud Begum v. K. Md. Haneef 2003 (1) ALT (Cri) 369 (AP) this Court held as follows:
It is clearly found that there is no valid divorce. In view of the invalidity of divorce the question of invoking the jurisdiction for cancellation of maintenance order passed in M.C. No. 21 of 1986 on the file of Judicial First Class Magistrate does not arise. Both the courts have applied correct law as on the date of disposal of the petitions and subsequently Supreme Court laid down the principle. The legality of the divorce cannot be upheld by this Court, as the divorce is not in accordance with the principles laid down by the Supreme Court. When there is no legally valid divorce, the question of cancelling the order does not arise. As there is miscarriage of justice and non-application of correct law this Court has to exercise its inherent powers and accordingly quash the proceedings namely cancelling the order of maintenance granted by the lower court, which has been confirmed by the Revisional Court while observing that the divorce is invalid divorce.
11. Therefore, on facts and on law, the contention of the respondent-husband that he has pronounced talak and that he has divorced his wife and, therefore, she is not entitled to invoke the provisions of Section 125 of Cr.P.C. is not sustainable.
12. The rights of a divorced Muslim women to claim maintenance has been exhaustively dealt with by five Hon'ble Judges of Supreme Court in Danial Latifi and Anr. v. Union of India : 2001CriLJ4660 . While upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Hon'ble Apex Court has been pleased to hold as 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 Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after 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.
13. In the above said judgment, the apex Court further highlighted the sufferings of a woman in the society. The relevant portion is extracted hereunder:
In interpreting the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated both economically and socially and women are assigned, invariably, a dependant role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her entire life - a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner we could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief which partakes basic human rights to secure gender and social justice is universally recognized by persons belonging to all religions and it is difficult to perceive that Muslim Law intends to provide a different kind of responsibility by passing on the same to those unconnected with the matrimonial life such as the heirs who were likely to inherit the property from her or the Wakf Boards. Such an approach appears to us to be a kind of distortion of the social facts. Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints. Bearing this aspect in mind, we have to interpret the provisions of the Act in question.
14. The contention of the learned Counsel for the respondent-husband is that under Section 3(1) of the Act a divorced woman shall be entitled to have from her husband, a reasonable and fair maintenance which is to be made and paid to her within the iddat period and would further contend that the divorced Muslim woman is entitled for maintenance only for the period of iddat. But the Hon'ble Supreme Court in its judgment has observed as follows to dilute the contention of the learned Counsel for the respondent-husband.
29. A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word 'provision' indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs'. Reasonable and fair provision may include provision for her residence, her food, her cloths, and other articles. The expression 'within' should be read as 'during' or 'for' and this cannot be done 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 a 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 the Parliament has 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.
30. The important section in the Act is Section 3 which provides that divorced woman is entitled to obtain from her former husband 'maintenance', 'provision', and 'mahr', and to recover from his possession her wedding presents and dowry and authorizes the Magistrate to order payment or restoration of these sums or properties. The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. The wordings of Section 3 of the Act, appear to indicate that the husband has two separate and distinct obligations: (1) to make a 'reasonable and fair provision' for his divorced wife; and (2) to provide 'maintenance' for her. The emphasis of this section is not on the nature or duration of any such 'provision' or 'maintenance', but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, 'within the iddat period.' If the provisions are so read, the Act would exclude from liability for post-iddat period maintenance to a man who has already discharged his obligations of both 'reasonable and fair provision' and 'maintenance' by paying these amounts in a lump sum to his wife, in addition to having paid his wife's mahr and restored her dowry as per Section 3(1)(c) and 3(1)(d) of the Act. Precisely, the point that arose for consideration in Shah Bano's case was that the husband has not made a 'reasonable and fair provision' for his divorced wife even if he had paid the amount agreed as mahr half a century earlier and provided' iddat maintenance and he was, therefore, ordered to pay a specified sum monthly, to her under Section 125, Cr.P.C. This position was available to Parliament on the date it enacted the law but even so, the provisions enacted under the Act are 'a reasonable and fair provision and maintenance to be made and paid' as provided under Section 3(1)(a) of the Act and these expressions cover different things, firstly, by the use of two different verbs - 'to be made and paid to her within the iddat period' it is clear that a fair and reasonable provision is to be made while maintenance is to be paid; secondly, Section 4 of the Act which empowers the Magistrate to issue an order for payment of maintenance to the divorced woman against various of her relatives, contains no reference to 'provision'. Obviously, the right to have 'a fair and reasonable provision' in her favour is a right enforceable only against the woman's former husband, and in addition to what he is obliged to pay as 'maintenance'; thirdly, the words of the Holy Quran, as translated by Yousuf Ali of 'mata' as maintenance' though may be incorrect and that other translations employed the word 'provision,' this Court in Shah Bano's case dismissed this aspect by holding that it is a distinction without a difference. Indeed, whether 'mata' was rendered 'maintenance' or 'provision', there could be no pretence that the husband in Shah Bano's case had provided anything at all by way of 'mata' to his divorced wife. The contention put forth on behalf of the other side is that a divorced Muslim woman who is entitled to 'mata' is only a single or one time transaction which does not mean payment of maintenance continuously at all. This contention, apart from supporting the view that the word 'provision' in Section 3(1)(a) of the Act incorporates 'mata' as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period, also enables 'a reasonable and fair provision' and 'a reasonable and fair provision' as provided under Section 3(3) of the Act would be with reference to the needs of the divorced woman, the means of the husband, and the standard of life the woman enjoyed during the marriage and there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman, though it may look ironical that the enactment intended to reverse the decision in Shah Bano's case, actually codifies the very rationale contained therein.
31. A comparison of these provisions with Section 125, Cr.P.C. will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support is satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right loses its significance. The object and scope of Section 125, Cr.P.C. is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.
32. Even under the Act, the parties agreed that the provisions of Section 125, Cr.P.C. would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125, Cr.P.C. would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional.
15. In Abdul Latif Mondal v. Anuwara Khatun : (2002)2CALLT179(HC) a single Judge of the Calcutta High Court has held that Sections 3, 4, 5, and 7 of the Act are available to a divorced Muslim woman in addition to claims available under Section 125, Cr.P.C. and has further held that an order of maintenance passed under Section 125, Cr.P.C. is not made a nullity by the Act. The relevant portion is extracted hereunder:
22. Yet on another point as to the rights of the children, there is no dispute that so far as the rights of the children are concerned, for claiming maintenance against the father, they are governed by the provisions of Section 125 of Cr.P.C. and the provisions of the M.W. Act in any manner do not come in their way from claiming such a right. This position of law has been well-recognized by the Supreme Court in the case of Noor Saba Khatoon v. Mohd. Quasim : 1997CriLJ3972 .
23. Now, with regard to the most important point whether the enactment of the M.W. Act and the provisions contained therein has rendered the impugned order of the learned Magistrate under Section 125, Cr.P.C. a nullity, 1 have essayed to discuss some propositions of law which tend to lean in favour of the existence and operation of Section 125, Cr.P.C. in spite of the new M.W. Act being already there. Having now come across with the latest landmark judgment of the Hon'ble Supreme Court by its Constitutional Bench and having carefully tried to go through the observations and findings by the apex Court, we possibly have still enough reason to maintain that the position or Section 125, Cr.P.C. has not been materially changed.
24. In this judgment of the Supreme Court, it is no doubt that the Hon'ble Supreme Court has made a comparison of the provisions of the M.W. Act with Section 125, Cr.P.C. and had said that the requirement, purpose, object and scope of Section 125, Cr.P.C. are satisfied. The Supreme Court had further observed that even under the Act, that is the M.W. Act, the parties agreed that the provisions of Section 125, Cr.P.C. would still be attracted. But the point, to my mind, is these observations were only in connection with the finding constitutional validity of the provision of the M.W. Act itself which was challenged in the writ petitions before the Supreme Court under Article 32 of the Constitution and that was precisely the only focal point for determination before the Hon'ble Supreme Court. Thus, the Supreme Court observed in para 20 of the aforesaid judgment as follows:
The learned Counsel for the parties have elaborately argued on a very wide canvass. Since we are only concerned in this Bench with constitutional validity of the provisions of the Act, we will consider only such questions as are germane to this aspect. We will decide only the question of constitutional validity of the Act and relegate the matters when other issues arise to be dealt with by respective Benches of this Court either in appeal or special leave petitions or writ petitions.25. The above observations of the Hon'ble Supreme Court possibly allow us to highlight a few more propositions of law in support of my stance. In this connection, I am inclined to follow the lines of decisions in Arab Ahemadhia Abdulla v. Arab Bali Mohmuna Siyadbhai AIR 1988 (Guj) 141, which incidentally, was also accepted by the Supreme Court in the above decision of the Constitution Bench. In an earlier single Bench decision by this Court itself (Basudev Panigrahi, J.) in the case of Shakila Parveen v. Haider Ali alias Haider 2000 1 CLJ 608, the above decision of the Gujarat High Court in Arab Ahemadhia's case was followed almost in its entirety. In the said case AIR 1988 Guj 141, the Learned single Judge of the Gujarat High Court (M.B. Shah, J.) (as then he was) held that by the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986, the order passed by Magistrate under Section 125 of Cr.P.C. ordering Muslim husband to pay maintenance to his divorced wife would not be non est. There is no section in the Act which nullifies the orders passed by the Magistrate under Section 125 of the Cr.P.C. Further, once the order under Section 125 of the Cr.P.C. granting maintenance to the divorced woman is passed, then her rights are crystallized and she gets vested right to recover maintenance from her former husband. That vested right is not taken away by the Parliament by providing any provision in the Act and that there was no inconsistency between the provisions of the said Act and the provisions of Sections 125 - 128 of the Code of Criminal Procedure. The conclusion is that the provisions of M.W. Act as made available to the divorced Muslim woman are in addition (emphasis mine) to the claims available to them under Section 125 of the Code of Criminal Procedure.
16. As far as this case is concerned, the contention of the respondent-husband that he has divorced the first petitioner is not sustainable both on facts and law for the reasons mentioned earlier. Even if she is a divorced wife her right to claim maintenance is not curtailed by the Act. Therefore, the petitioners are entitled for maintenance as prayed for. As regards the quantum of maintenance granted, there is no application for enhancement. The evidence of respondent-husband would show that he is having at least two houses and some landed property and he is also working as a mechanic. Therefore, it is open to the parties concerned particularly the petitioners to approach the appropriate Court under the provisions of Section 127, Cr.P.C. if they want to have enhanced maintenance.
17. With the above observation, the criminal revision case is allowed and the order of the IV Additional District and Sessions Judge, Tirupati is set aside and the order of the Judicial Magistrate of First Class, Vayalpad is upheld.