Judgment:
1. This criminal Misc. Petition No. 786 of 2011 under section 482 Cr.P.C. against the order dated 25.1.2011 of Special Court Women Atrocities and Dowry Cases, Kota nd quashing the proceedings pending before the ACJM No.4 in case No. 04/08 wherein the same relief has been sought by the non-petitioners by way of application under sections 12, 22, 23, 23(2) of the Protection of Women from Domestic Violence Act, 2005 whereas the application for interim maintenance under section 125 Cr.P.C. has already been decided by the Family Court vide order dated 9.5.2008.
2. Brief facts of this criminal misc. petition are that the petitioner got married to the respondent No.1 on 13.5.2004 as per the Islamic shariat, known as 'Nikah'. After consuming the marriage they lived together happily. A child was born out of their wedlock. But the relations between them could not be maintained for long and began quarreling after two years. The wife of the petitioner began to stay at her father's house without any reason, when all efforts had failed to maintain the relation between spouses. Eventually the petitioner had to file a suit for restitution of conjugal rights before the family court. After filing of the application for restitution conjugal rights in family court Kota and when the notices were issued to the respondent she filed a complaint under section 156(3) Cr.P.C. for the offence under sections 498 A and 406 IPC on 27.9.2006 wherein all family members of the petitioner have been implicated. The respondent No.1 filed an application under section 125 Cr.P.C. for maintenance in Family Court Kota. After hearing both the parties, the Family Court awarded Rs. 500/- per month for the child per month and in respect of the respondent No.1 her prayer was rejected vide order dated 9.5.2008. Thereafter the respondents filed application for interim maintenance under section 12 of the Protection of Women from Domestic Violence Act, 2005 before the court of Judicial Magistrate No.4 Kota. The petitioner submitted reply to this application. Hearing both the parties the court passed an order dated 17.4.2008 wherein the application for interim maintenance was rejected. The respondent No.1 filed revision petition before the Sessions Judge Kota, who transferred the same to the Court of Special Court Women Atrocities and Dowry Cases, Kota. The court after considering the facts and circumstances of the case vide order dated 25.1.2011 directed the petitioner to pay interim maintenance in the amount of Rs. 2000/- per month to the respondent from the date of filing of the application. Aggrieved by the order dated 25.1.2011 the petitioner filed the above criminal misc. petition for quashing the order of interim maintenance to the respondent No.1.
3. Mr. K.A. Khan, learned counsel appearing for the petitioner has argued that the divorced Muslim lady cannot claim for monthly maintenance continuously and for indefinite period of time even after Iddat period under section 125 Cr.P.C. If the divorced Muslim lady unable to maintain herself, she can claim under section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 during Iddat period and under section 4 of the Act a divorce muslim lady is entitled for maintenance after Iddat period. The muslim lady has been given option to be governed by the provisions of Sections 125 to 128 Cr.P.C. under the Muslim Women (Protection of Rights on Divorce )Act. The learned counsel for the petitioner has contended that although the option was given in the Family Court but the order dated 9.5.2008 was passed according to Muslim law, hence the petitioner has not raised any objection against this order. The learned counsel has further contended that two remedies cannot be exercised at a time for the same relief. Despite passing of the order by the Family Court granting maintenance to the child, the respondent No.1 also avail the remedy of filing application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Judicial Magistrate rejected the application but on a revision petition filed by the respondent the revisional court allowed interim maintenance Rs. 2,000/- per month to the respondent No.1 from the date of filing of the application. The learned counsel has further argued that this order is liable to be set aside in the facts and circumstances of the case.
4. Mr. Pradeep Shrimal, Public Prosecutor for the State and Mr. A.K. Khan, learned counsel appearing for the non-petitioners have categorically opposed the arguments of the learned counsel for the petitioner. They have stated that the revisional court after considering the material and the decisions relied on by the parties, rightly allowed the application for interim maitnenance granting maintenance in the amount of Rs. 2,000/- per month from the date of application.
5. I have heard Mr. K.A. Khan, learned counsel for the petitioner, Mr. A.K. Khan, learned counsel appearing for the non-petitioners and Mr. Pradeep Shrimal, Public Prosecutor appearing for the State of Rajasthan and have also gone through the order dated 25.1.2011 passed by the revisional court and the material placed on the record of this case and the decisions relied on by the parties before the revisionl court.
6. Before proceeding further it would be necessary to have a look at the Apex Court judgments concerning the Muslim Women.
A Constitution Bench of the Apex Court in Danial Latifi v. Union of India (2001) 7 SCC 740 in paras 28-29 and 36) held as under :
“28. 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 clothes, 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 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.
29. The important section in the Act is Section 3 which provides that a divorced woman is entitled to obtain from her former husband ‘maintenance’, ‘provision’ and ‘mehr’, and to recover from his possession her wedding presents and dowry and authorises 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 Sections 3(1)(c) and 3(1)(d) of the Act. Precisely, the point that arose for consideration in Shah Bano case (1985) 2 SCC 556 : 1985 SCC (Cri) 245 was that the husband had 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 CrPC. 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 Yusuf Ali of ‘mata’ as ‘maintenance’ though may be incorrect and that other translations employed the word ‘provision’, this Court in Shah Bano case3 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 case3 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 case (1985) 2 SCC 556 : 1985 SCC (Cri) 245, actually codifies the very rationale contained therein.
36. While upholding the validity of the Act, we may sum up our conclusions:
(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 confined 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 Waqf 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 Apex Court in Sabra Shamim v. Maqsood Ansari (2004) 9 SCC 616 held as under:
10. Proceedings under Section 125 CrPC are civil in nature. Even if the Court noticed that there was a divorced woman in the case in question, it was open to it to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125 CrPC and claims made under the Act are tried by the same court. In Vijay Kumar Prasad v. State of Bihar (2004) 5 SCC 196 : 2004 SCC (Cri) 1576 it was held that proceedings under Section 125 CrPC are civil in nature. It was noted as follows: (SCC p. 200, para 14)
“14. The basic distinction between Section 488 of the old Code and Section 126 of the Code is that Section 126 has essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing on the date of application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where the husband and wife last resided together. As noted by this Court in several cases, proceedings under Section 125 of the Code are of civil nature. Unlike clauses (b) and (c) of Section 126(1) an application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives.”
11. Accordingly, we set aside the impugned order of the High Court and remit the matter for fresh consideration.
12. The High Court while deciding the matter shall keep in view the principles indicated above. Since the matter is pending since long, the High Court shall dispose of the matter within six months from the date of receipt of this order to avoid unnecessary delay. We direct the parties to appear before the High Court on 23-7-2007. We request the Chief Justice of the High Court to list the matter before the appropriate Bench.
13. The appeal is disposed of accordingly.”
7. In the light of the Apex Court decisions now I may consider the judgment of the revisional court.
8. In the order dated 25.1.2011, the revisional court observed as under :
“HINDI”
9. There is no perversity in the order passed by the revisional court in granting interim maintenance to the respondent No.1. It is true that the Family Court also awarded maintenance in the amount of Rs. 500/- to the child. The order passed by the revisional court is not related to the grant of interim maintenance to the child. The petitioner gave Talaq to the respondent vide written Talaqnama on 1.5.2007 and the same also verified by the Qazi Shehar Kota. This Talaqnama is still to be proved by the petitioner in the appropriate court of law as per Muslim Law and if interim maintenance is granted to the respondent under the Protection of Women from Domestic Violence Act, the same cannot be said to be illegal or perverse as the respondent No.1 is entitled to receive interim maintenance in view of the judgments of the Apex Court.
10. For these reasons, the criminal misc. petition filed by the petitioner is rejected being devoid of merit. The stay application also stands dismissed.