A. Pasayat, J.
1.The question raised in this appeal is whether learned Judge, Family Court should have dealt with the proceeding as if it is one under Section 125 of the Code of Criminal Procedure, 1973 (in short, the 'Code)'.
2. Provisions contained in Sections 125 to 128 of the Code would have no application, and proceeding at the instance of a divorced wife would not be maintainable, except in cases covered by Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (in short the 'Act'). Section 3(1)(a) of the Act envisages making of reasonable and fair provision and payment of maintenance to the divorced wife commensurable with the period of Iddat. A contrary view would defeat the purpose for which the legislation is made. Provisions contained in Section 4 cast liability on the relatives or the Wakf Board, as the case maybe, for payment of maintenance to the divorced woman, if she is not re-married or is unable to maintain herself after the Iddat period. It fortifies the view that the liability to pay maintenance does not extend beyond the period of Iddat. In view of what has been stated in Section 5, if the husband and wife exercised their option in the manners provided, they would be governed by provisions contained in Sections 125 to 128 of the Code, and Section 7 of the Act. Similar view was taken by this Court in Criminal Revision No. 623 of 1988 disposed of on 13.11.1991,in Munat Baig v. Sakatun Bibi: (1992) 5 OCR 362, and in Rishwana Begum v. Mly. Motiulla : (1992) 5 OCR 703, II (1989) DMC 138. Similar view has also been taken by Andhra Pradesh High Court in Usman Khan Banamani v. Fathimunnisa Begum and Ors.: AIR 1990 A.P. 225, by the Patna High Court in Md. Yunus v. Bibi Phenkani alias Tasrun Nisa (1987) 2 Crimes 241; and by the Rajasthan High Court in Abid Ali v. Mst. Raisa Begum: (1986) 1 Raj. I.L. R. 104. A contrary view expressed by the Gujarat High Court in Arab Ahemadhia Abdulla etc. v. Arab Bali Mohanna Saivadbhai and Ors.): AIR 1988 Guj. 141 does not reflect true intention of the Legislature, as even a bare reading of the provisions would show.
3. A combined and harmonious reading of provisions of Sections 3 to 7 of the Act clearly demonstrates that the general object to law of maintenance payable in consonance with the principle of Muslim Law, and therefore, Sections 125 to 128 of the Code will have no application, unless option of parties in terms of Section 5 of the Act is exercised. Liability of the husband is limited for and during the period of Iddat. Tyabji's Muslim Law (4th Edition, Pages 268-69) states the position as follows
'On the expiration of the Iddat after Talaq the wife's right to maintenance ceases whether based on the Muslim Law, or on an order under the Criminal Procedure Code.'
Similar view has been expressed by Mulla in Mohammedan Law (18th Edition, para, 279 at page 301).
4. There is some amount of dispute whether there was divorce. Mulla in Principles of Mohammedan Law, 8th Edition, page 327 has stated as follows:-
'If a man says to his wife that she had been divorced yesterday or earlier, it leads to a divorce between them, even if there be no proof of a divorce on the previous day or earlier'.
While considering an aspect of the Mohammedan Law, one should not be influenced by one's sense of rigid approach as regards marriage and divorce applicable to Hindus. The quoted portion from Mulla clearly shows that under the Mohammedan Law, husband is in an advantageous position and has been conferred a special right not only to divorce the wife orally in the manner provided under the Mohammedan Law but also by issuing a notice or filing a written statement in defence to maintenance claim. A similar view expressed by the Andhra Pradesh High Court in Mohammed Ali v. Faredunnisa Begum: AIR 1970 A.P. 298, was held to be laying down the correct position in law by this Court in Sk. Mohiuddin v. Hasina : 1988 (II) OLR 163, and in Sayed Nawai @ Alias Nati v. Rasida Begum : Vol. 33 (1991) OJD 212 (Criminal).
5. Provisions of Section 125 of the Code would be applicable to the case of a divorced Muslim woman only if both parties exercise their options at the first hearing of the application under Section 3(2) of the Act, and not in any other case. Therefore, the learned Judge, Family Court was justified in holding that provisions of Section 125 have no application and the application has rightly been treated as one under Section 3 of the Act.
6. So far as minor children are concerned, unless they are of a particular age as prescribed in Section 3, their claim cannot be considered in a proceeding under the Act. But the question is: Can they be left without remedy? The answer is an emphatic no, as an application under Section 125 of the Code is maintainable. Provisions of Section 125 of the Code are not repugnant to the Act, and children of divorced wife and husband who crossed the age prescribed in Section 3(1)(b) are entitled to maintenance under Section 125 of the Code. Right to claim such maintenance is not taken away under Section 3 of the Act, and on the contrary gives additional safeguard to the children.
7. In that view of the matter, the case is to be re-heard by the learned Judge, Family Court.