B. Panigrahi, J.
1. The Criminal appeal filed by appellant wife Sabera Bibi from an order passed by the learned Judge, Family Court, Cuttack directing refund of an amount of Rs. 5450/- being realised from the respondent by execution of a distress warrant and the Criminal Revision filed by the petitioner-husband Dr. Sayed Khalilur Rahman against an order of the S.D.J.M. Cuttack dismissing the application of the revisionist for exonerating him from paying the maintenance amount are assailed before us. These two cases have been heard together and this common order will govern both the cases.
2. Appellant Sabera Bibi has claimed to be the married wife of Dr. Sayed Khalilur Rahman, the revisionist, and out of their wedlock a female child was born. The wife-Sabera Bibi filed an application for maintenance under Section 125. Cr.P.C. which was registered as Criminal Misc. Case No. 127 of 1980 in the Court of S.D.J.M. Cuttack. In the said application the petitioner husband was directed to pay Rs. 200/- per month for the purpose of maintenance of his wife and daughter. Petitioner husband challenged the said order in a revision before this Court which was dismissed on 27-9-1986. Thereupon the appellant Sabera Bibi filed an application for realisation of Rs. 6200/- towards arrear maintenance by attachment of her husband's salary or by issuing distress warrant against him. The said application is still pending. As a matter of fact while executing the distress warrant the police realised Rs. 5450/- from the son of the respondent, as a reason whereof, petitioner's son filed an application before the learned Judge, Family Court, Cuttack that he had no obligation tq pay any maintenance to the appellant, thus the realisation of Rs. 5450/- from him in execution of distress warrant should be refunded to him. The learned Judge, Family Court directed refund of the money to the son of the respondent-husband as a reason whereof the wife of the revisionist filed an appeal. The husband-petitioner filed an application before the learned S.D.J.M. Cuttack by stating that he is not liable to pay any maintenance inasmuch as there was already a 'Talaq' by the petitioner and thereafter the opposite party-wife is no longer entitled to the maintenance amount.
3. The case has suffered a chequered history inasmuch as it is pending since 1980. There has been no dispute as regards the relationship of the parties. The appellant Sabera Bibi is undisputedly the wife of Dr. Sayed Khalilur Rahman. The 'question now arises for consideration whether the husband would still be liable to pay maintenance even after, Talaq' alleged to have been granted by him beyond Iddat period. The wife has claimed that no Mehr was paid to her by the respondent-husband at the time of Talaq'. It has been further stated that mere uttering the word Talaq' the liability and responsibility of the husband to pay maintenance does not cease to exist as long as the appellant Sabera Bibi is not economically rehabilitated nor has gone for remarriage. Thus, the Judge, Family Court has palpably committed an error in rejecting appellant Sabera Bibi's prayer for maintenance.
4. Before appreciating the contentions of the parties it is necessary to quote the provisions of Sections 3 and 4 of the Act:--
'3. Mehr 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) reasonable and fair provision and maintenance to be made and paid to her within 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 mehr 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 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 mehr 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, mehr 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 mehr 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 mehr 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 mehr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 and may sentence such persons, 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.
4. Order for payment of maintenance.--
(1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine 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 such relatives and such maintenance shall be payable by such relatives in the proportion in which they would inherit her property and as such period as he may specify in his order;
Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her:
Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in Sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares or; those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to subsection (1), the Magistrate may, by order direct the State Wakf Board established under Section 9 of the Wakf Act, 1954, or under any other law for the time being in force in a State, functioning in the area in which the woman, resides, to pay such maintenance as determined by him under Sub-section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.'
5. The question regarding payment of maintenance under Section 125, Cr.P.C. came up for consideration before the Calcutta High Court in the case of Shakila Parveen v. Haider Ali alias Haidar reported in 2000 Cal Cri LR 201 wherein it has been held :
Taking into consideration the objects and reasons for enacting the Muslim Woman (Protection of Rights on Divorce) Act as well as the Preamble and the plain language of Section 3 it cannot be said that Muslim Women Act in any way adversely affects the personal rights of a Muslim divorced woman. Nowhere in the Act it is provided that the rights which are conferred upon a Muslim divorced wife under Personal Law are abrogated, restricted or repealed. It is presumed that the Act is enacted with deliberation and full knowledge of existing law on the object. In view of the Preamble the Act is enacted to protect the rights of Muslim Women who have been divorced by, or have obtained divorce from their husbands. In simplest language the Parliament has stated that the Act is for protecting the rights of Muslim Women.
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This Section also indicates that the Parliament never intended to take away the vested right of Muslim divorced woman which was crystallized before the passing of the Act. There is no inconsistency between the provisions of the Act and the provisions of Sections 125 to 128 of the Cr.P.C, On the contrary the provisions of Muslim Women Act grant more relief to the divorced woman depending upon the financial position of her former husband.
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On a careful consideration of the principle decided in the above judgment, I find the expression during Iddat period should not be strictly construed only during that period. But it should be extended till a Mohammedan divorced female enters remarriage.
6. So far as the liability of the son to pay maintenance to the mother is concerned, the Supreme Court, in the case of Danial Latifi v. Union of India, 2001 AIR SCW 3932 : (2001 Cri LJ 4660), while upholding the validity of Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Act), has held :
(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.
(4) the provisions of the Act do not offend Articles 14, 15, and 21 of the Constitution of India.
7. Therefore, in view of the aforesaid decision, the son who is the relative of the appellant, shall also be bound to maintain her and the amount realised from him by execution of distress warrant should not be refunded to him and it should be appropriated towards the maintenance of the appellant.
8. The learned S.D.J.M. by order dated 23-2-1991 has, however, decided that the question of liability of the husband to pay maintenance to the wife as well as to the daughter shall be considered only after the petitioner husband pays the maintenance as directed him.
9. In this case there is nothing on record to show that the petitioner had paid Mahr. Assuming that there was a divorce between the parties, but in so far as the claim of divorce by the husband is concerned, the wife has strongly denied that there was any such divorce. Therefore, we hold that the appellant wife is entitled to get maintenance from the respondent-husband.
10. It is most unfortunate to notice that the case is continuing for more than 21 years and the appellant Sabera Bibi has not received any maintenance from her husband. The maintenance amount was granted at the rate of Rs. 200/- per month in the year 1980. Though 21 years have elapsed in the mean time, but no steps were taken by the husband to pay the said maintenance, rather he adopted legal gimmics to avoid payment. We further noticed that the award of maintenance given by the learned S.D.J.M. is quite disproportionate to the income of her husband. The amount of maintenance must commensurate with the income of the husband and also the income of the wife, if any, and it should be fixed after striking the balance between the two amounts. The Court must not shut its eyes that within Rs. 200/-it is difficult for maintaining the wife and having a separate residence for her. Therefore in exercise of our powers under Section 482, Cr.P.C. we suo motu enhance the maintenance to Rs. 500/- per month from the date of application filed by the wife Sabera Bibi before the S.D.J.M. till the date of application filed by the husband in this Court, i.e. 22-3-1991. From the date of revisional application till realisation from the respondent-husband the respondent shall pay @ Rs. 750/- per month. It is noticed that the husband is a doctor and therefore, this order was passed taking the social status, economic and family background into consideration. The learned Judge, Family Court shall take all steps including coercive measure as envisaged in law for realisation of the aforesaid amount from the husband-respondent.
11. With the above observation both the appeal and the revision are disposed of.
CH. P.K. Misra, J.
12. I agree.