Qayyum Khan Vs. Noorunnisa Begum and anr. - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - , in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the magistrate shall, if he is satisfied that the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order (i) in the case where such sum was paid before such order, from the date on which such order was made, and (ii) in any other case, from the date of expiry of the period, if any for which maintenance has been actually paid by the husband to the woman. if the wife is not satisfied with the amount of maintenance paid by the husband, there is nothing in section 127(3)(b) of the new code which prevents her from making an application for determination of the proper amount of maintenance during the iddat period.ordergangadhara rao, j.1. the petitioner is the husband of the respondent. they are muslims. the respondent filed a petition under section 125 of the criminal p. c. and she was awarded maintenance at the rate of rs. 50/- per mensum from 3-3-1976. she filed a petition for execution, claiming arrears of maintenance of rupees 871-40 p. from 3-3-1976 till the end of july, 1977. the petitioner deposited rs. 1,100/- in the court towards her 'mahr' or dower amount. she wanted that the arrears might be paid out of that amount and to direct the indian airlines, begum-pet, to deduct from the salary of the petitioner rs. 50/- every month towards her maintenance and pay it to her.2. in his counter, the petitioner alleged that the respondent was living in adultery even prior to the passing of the maintenance order and therefore she was not entitled for maintenance. he also alleged that the amount of rs. l,100/- deposited by him in the court was for the specific purpose of payment of 'mahr' amount and therefore the arrears of maintenance claimed by the respondent cannot be paid to her out of that amount.3. the learned magistrate held that the question of adultery of the respondent would be enquired into later on. (i am now given to understand that subsequently the learned magistrate held that the respondent was not guilty of adultery). when it was urged by the petitioner that the arrears of maintenance cannot be paid out of the 'mahr' amount of rupees 1,100/- deposited for that purpose, the learned magistrate relying upon the decision in hajuben suleman v. ibrahim gandabhai (1977) 18 guj lr 133, held that unless the respondent voluntarily received the 'mahr' amount and maintenance amount for the period for which she was entitled under her personal or customary law, she could not be forced to receive the 'mahr' amount even if it was deposited by her husband in the court and she had an option to continue to claim maintenance until her lifetime or until she remarried. therefore, the learned magistrate directed that a sum of rs. 871-40 p., shall be paid to the respondent out of rs. 1,100/- deposited in the court by the petitioner. he had also observed in his order that the petitioner had not paid a single pie to the respondent so far towards maintenance. questioning that order, the petitioner has filed this revision.4. the only submission made by the learned counsel for the petitioner is that it is sufficient if the husband deposits the amount in court and it is not necessary that the wife should receive it in order to cancel the order of maintenance under section 127(3)(b) of the criminal p. c.5. from the record available, i gather the following facts. the petitioner has divorced the respondent. he has deposited in court only the mahr amount. he did not deposit the amount due for the iddat period. the magistrate fixed maintenance amount of rs. 50/- every month payable to the respondent by the petitioner from 3-3-1976. he did not deposit even a pie towards the maintenance amount. the respondent wanted to recover the arrears of maintenance from the 'mahr' amount deposited in court by the petitioner.6. under section 125, cr. p.c., if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding five hundred rupees in the whole. 'wife' includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. it is under this provision that the magistrate awarded maintenance to the respondent at the rate of rs. 50/- per mensem from 3-3-1976.7. under section 127(3)(b), cr. p.c. where any order has been made under section 125, cr. p.c., in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the magistrate shall, if he is satisfied that the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order (i) in the case where such sum was paid before such order, from the date on which such order was made, and (ii) in any other case, from the date of expiry of the period, if any for which maintenance has been actually paid by the husband to the woman.8. to invoke the benefit of this subsection, the woman must have been divorced by her husband. she must have received the whole of the sum which under any customary or personal law applicable to the parties was payable on such divorce. it means payment of a part of that sum is not sufficient. if such sum was paid before the order, under section 125, cr. p.c. is made, the order is cancelled from the date on which it was made. in any other case, the order is cancelled from the date of the expiry of the period for which maintenance has been actually paid by the husband to the woman.9. it is true that in hajuben suleman v. ibrahim gandabhai 1977-18 guj lr 133 (supra), it has been held by a division bench of the gujarat high court that the words 'has received' occurring in clause (b) of sub-section (3) of section 127(3)(b), cr. p.c. contemplate the voluntary act of actual receipt of the whole of the sum contemplated by clause (b) and mere tender of an amount by the husband which the wife was not prepared to accept would not fall under clause (b). i am not able to agree with this decision. in the context of the section, the words 'has received' should be understood as 'has been paid'. that is evident when we read the two sub-clauses (i) and (ii) to section 127(3)(b). sub-clause (i) says 'in the case where such sum was paid before such order'. sub-clause (ii) says 'in any other case from the date of the expiry of the period if any for which maintenance has been actually paid.' evidently, the legislature used the word 'received' with reference to the woman and 'paid' with reference to the husband. there can be no receipt by the woman if there is no payment by the husband. it does not mean that there is no receipt by the woman even if there is payment by her husband. therefore, if the 'whole of the sum', which is payable under any customary or personal law, is paid by the husband, it must be construed as acceptance by the woman. supposing the husband sends by money order or deposits in court the sum payable under any customary or personal law on divorce to the woman and the woman deliberately refuses to receive it, does it mean that the husband should continue to pay maintenance under section 125, cr. p.c. when once the husband sends the amount by money order or deposits it in the court, it must be taken that the woman had received the amount. otherwise, it will lead to the consequence that a recalcitrant woman may refuse to receive the amount and harass the husband. i am of the opinion that it cannot be the intention of the legislature while enacting section 127(3)(b), cr. p.c. while the section is designed to safeguard the interests of the wife, it does not mean that the husband is left at the mercy of his wife.10. in cri. revn. case no. 635 of 1977 dated; 7-12-1977. muktadar, j., has differed from the decision in hajuben suleman v. ibrahim gandabhai (supra). he followed the bench decision of the bombay high court in smt. rukhsana parveen v. shaik mohammed hussain 1977 cri lj 1041. this is also the view which i have taken in cri. revn. cases nos. 467 and 468 of 1977 dated 16-2-1978.11. here, it should be remembered that the husband should pay the 'whole of the sum' payable by him on divorce under the customary or personal law. if he does not pay the 'whole of the sum', he does not comply with the requirement of section 127(3)(b), cr. p.c., and there is no question of cancelling the order under section 125, cr. p.c. in the case of muslim woman, who has been divorced by her husband, he must pay the maintenance amount for the iddat period and also the 'mahr', amount. the position with regard to the maintenance of a divorced wife is explained in mulla's 'principles of mohamedan law', seventeenth edition, in para. 279. that paragraph reads as follows:279. maintenance on divorce (1) after divorce, the wife is entitled to maintenance during the period of iddat (s. 257). if the divorce is not communicated to her until after the expiry of that period she is entitled to maintenance until she is informed of the divorce.when the marriage is dissolved by divorce, 'the duration of the iddat if the woman is subject to menstruation, is three courses; if she is not so subject, it is three lunar months'. the iddat amount that the husband has to pay under the personal law must be a reasonable amount of maintenance. if the wife is not satisfied with the amount of maintenance paid by the husband, there is nothing in section 127(3)(b) of the new code which prevents her from making an application for determination of the proper amount of maintenance during the iddat period. so far as mahr or dower amount is concerned, it is always fixed under the contract and there is no difficulty about it. if an order is already made under section 125, cr. p.c. apart from the iddat and mahr amounts, the husband must also pay the maintenance amount, granted under section 125, cr. p.c. until he pays these three amounts, there is no question of cancelling the order under section 125, cr. p.c. if he has paid the mahr and the iddat amounts before an order is made under section 125, cr. p.c. then the order stands cancelled from the date when such order is made. in any other case, it is cancelled from the date of expiry of the period for which the maintenance was actually paid by the husband to the woman. for example, in the case of a monthly maintenance, the date will be the end of the period of one month for which maintenance has been paid by the husband. in this connection, reference may be made to the decision of bombay high court in smt. rukhsana parvin v. shaikh mohd. hussain 1977 cr lj 1041 and of this court in alluri sambiah v. shaik zahirabi 1978 cri lj 211.12. therefore, i do not agree with the learned magistrate that if the woman refuses to receive the amounts due to her under section 127(3)(b) cr. p.c. the order made under section 125 cr. p.c. cannot be cancelled. but, in this case, the petitioner has deposited only mahr amount. he did not deposit the arrears of maintenance from 3-3-1976 or the maintenance for the iddat period. thus, he did not deposit the 'whole of the sum' payable by him according to his personal law under section 127(3)(b) cr. p.c. he did not also deposit the maintenance awarded under section 125 cr. p.c. consequently there is no question of cancelling the order of maintenance under the sub-section. in the circumstances of the case, the learned magistrate is justified in directing the payment of rs. 871-40 p., towards the arrears of maintenance from the amount of rs. 1,100/- deposited by the petitioner,13. consequently, though for different reasons, i see no grounds to interfere with the order of the magistrate and i dismiss this revision.

Judgment:
ORDER

Gangadhara Rao, J.

1. The petitioner is the husband of the respondent. They are Muslims. The respondent filed a petition under Section 125 of the Criminal P. C. and she was awarded maintenance at the rate of Rs. 50/- per mensum from 3-3-1976. She filed a petition for execution, claiming arrears of maintenance of Rupees 871-40 P. from 3-3-1976 till the end of July, 1977. The petitioner deposited Rs. 1,100/- in the court towards her 'Mahr' or dower amount. She wanted that the arrears might be paid out of that amount and to direct the Indian Airlines, Begum-pet, to deduct from the salary of the petitioner Rs. 50/- every month towards her maintenance and pay it to her.

2. In his counter, the petitioner alleged that the respondent was living in adultery even prior to the passing of the maintenance order and therefore she was not entitled for maintenance. He also alleged that the amount of Rs. l,100/- deposited by him in the court was for the specific purpose of payment of 'Mahr' amount and therefore the arrears of maintenance claimed by the respondent cannot be paid to her out of that amount.

3. The learned Magistrate held that the question of adultery of the respondent would be enquired into later on. (I am now given to understand that subsequently the learned Magistrate held that the respondent was not guilty of adultery). When it was urged by the petitioner that the arrears of maintenance cannot be paid out of the 'Mahr' amount of Rupees 1,100/- deposited for that purpose, the learned Magistrate relying upon the decision in Hajuben Suleman v. Ibrahim Gandabhai (1977) 18 Guj LR 133, held that unless the respondent voluntarily received the 'Mahr' amount and maintenance amount for the period for which she was entitled under her personal or customary law, she could not be forced to receive the 'Mahr' amount even if it was deposited by her husband in the court and she had an option to continue to claim maintenance until her lifetime or until she remarried. Therefore, the learned Magistrate directed that a sum of Rs. 871-40 P., shall be paid to the respondent out of Rs. 1,100/- deposited in the court by the petitioner. He had also observed in his order that the petitioner had not paid a single pie to the respondent so far towards maintenance. Questioning that order, the petitioner has filed this revision.

4. The only submission made by the learned Counsel for the petitioner is that it is sufficient if the husband deposits the amount in court and it is not necessary that the wife should receive it in order to cancel the order of maintenance under Section 127(3)(b) of the Criminal P. C.

5. From the record available, I gather the following facts. The petitioner has divorced the respondent. He has deposited in court only the Mahr amount. He did not deposit the amount due for the Iddat period. The Magistrate fixed maintenance amount of Rs. 50/- every month payable to the respondent by the petitioner from 3-3-1976. He did not deposit even a pie towards the maintenance amount. The respondent wanted to recover the arrears of maintenance from the 'Mahr' amount deposited in court by the petitioner.

6. Under Section 125, Cr. P.C., if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding five hundred rupees in the whole. 'Wife' includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. It is under this provision that the Magistrate awarded maintenance to the respondent at the rate of Rs. 50/- per mensem from 3-3-1976.

7. Under Section 127(3)(b), Cr. P.C. where any order has been made under Section 125, Cr. P.C., in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order (i) in the case where such sum was paid before such order, from the date on which such order was made, and (ii) in any other case, from the date of expiry of the period, if any for which maintenance has been actually paid by the husband to the woman.

8. To invoke the benefit of this subsection, the woman must have been divorced by her husband. She must have received the whole of the sum which under any customary or personal law applicable to the parties was payable on such divorce. It means payment of a part of that sum is not sufficient. If such sum was paid before the order, under Section 125, Cr. P.C. is made, the order is cancelled from the date on which it was made. In any other case, the order is cancelled from the date of the expiry of the period for which maintenance has been actually paid by the husband to the woman.

9. It is true that in Hajuben Suleman v. Ibrahim Gandabhai 1977-18 Guj LR 133 (supra), it has been held by a Division Bench of the Gujarat High Court that the words 'has received' occurring in Clause (b) of Sub-section (3) of Section 127(3)(b), Cr. P.C. contemplate the voluntary act of actual receipt of the whole of the sum contemplated by Clause (b) and mere tender of an amount by the husband which the wife was not prepared to accept would not fall under Clause (b). I am not able to agree with this decision. In the context of the section, the words 'has received' should be understood as 'has been paid'. That is evident when we read the two Sub-clauses (i) and (ii) to Section 127(3)(b). Sub-clause (i) says 'in the case where such sum was paid before such order'. Sub-clause (ii) says 'in any other case from the date of the expiry of the period if any for which maintenance has been actually paid.' Evidently, the Legislature used the word 'received' with reference to the woman and 'paid' with reference to the husband. There can be no receipt by the woman if there is no payment by the husband. It does not mean that there is no receipt by the woman even if there is payment by her husband. Therefore, if the 'whole of the sum', which is payable under any customary or personal law, is paid by the husband, it must be construed as acceptance by the woman. Supposing the husband sends by money order or deposits in court the sum payable under any customary or personal law on divorce to the woman and the woman deliberately refuses to receive it, does it mean that the husband should continue to pay maintenance under Section 125, Cr. P.C. When once the husband sends the amount by money order or deposits it in the court, it must be taken that the woman had received the amount. Otherwise, it will lead to the consequence that a recalcitrant woman may refuse to receive the amount and harass the husband. I am of the opinion that it cannot be the intention of the Legislature while enacting Section 127(3)(b), Cr. P.C. While the section is designed to safeguard the interests of the wife, it does not mean that the husband is left at the mercy of his wife.

10. In Cri. Revn. Case No. 635 of 1977 dated; 7-12-1977. Muktadar, J., has differed from the decision in Hajuben Suleman V. Ibrahim Gandabhai (supra). He followed the Bench decision of the Bombay High Court in Smt. Rukhsana Parveen v. Shaik Mohammed Hussain 1977 Cri LJ 1041. This is also the view which I have taken in Cri. Revn. Cases Nos. 467 and 468 of 1977 dated 16-2-1978.

11. Here, it should be remembered that the husband should pay the 'whole of the sum' payable by him on divorce under the customary or personal law. If he does not pay the 'whole of the sum', he does not comply with the requirement of Section 127(3)(b), Cr. P.C., and there is no question of cancelling the order under Section 125, Cr. P.C. In the case of Muslim woman, who has been divorced by her husband, he must pay the maintenance amount for the Iddat period and also the 'Mahr', amount. The position with regard to the maintenance of a divorced wife is explained in Mulla's 'Principles of Mohamedan Law', Seventeenth Edition, in para. 279. That paragraph reads as follows:

279. Maintenance on Divorce (1) After divorce, the wife is entitled to maintenance during the period of iddat (S. 257). If the divorce is not communicated to her until after the expiry of that period she is entitled to maintenance until she is informed of the divorce.

When the marriage is dissolved by divorce, 'the duration of the Iddat if the woman is subject to menstruation, is three courses; if she is not so subject, it is three lunar months'. The Iddat amount that the husband has to pay under the personal law must be a reasonable amount of maintenance. If the wife is not satisfied with the amount of maintenance paid by the husband, there is nothing in Section 127(3)(b) of the new Code which prevents her from making an application for determination of the proper amount of maintenance during the Iddat period. So far as Mahr or Dower amount is concerned, it is always fixed under the contract and there is no difficulty about it. If an order is already made under Section 125, Cr. P.C. apart from the Iddat and Mahr amounts, the husband must also pay the maintenance amount, granted under Section 125, Cr. P.C. Until he pays these three amounts, there is no question of cancelling the order under Section 125, Cr. P.C. If he has paid the Mahr and the Iddat amounts before an order is made under Section 125, Cr. P.C. then the order stands cancelled from the date when such order is made. In any other case, it is cancelled from the date of expiry of the period for which the maintenance was actually paid by the husband to the woman. For example, in the case of a monthly maintenance, the date will be the end of the period of one month for which maintenance has been paid by the husband. In this connection, reference may be made to the decision of Bombay High Court in Smt. Rukhsana Parvin v. Shaikh Mohd. Hussain 1977 Cr LJ 1041 and of this Court in Alluri Sambiah v. Shaik Zahirabi 1978 Cri LJ 211.

12. Therefore, I do not agree with the learned Magistrate that if the woman refuses to receive the amounts due to her under Section 127(3)(b) Cr. P.C. the order made under Section 125 Cr. P.C. cannot be cancelled. But, in this case, the petitioner has deposited only Mahr amount. He did not deposit the arrears of maintenance from 3-3-1976 or the maintenance for the Iddat period. Thus, he did not deposit the 'whole of the sum' payable by him according to his personal law under Section 127(3)(b) Cr. P.C. He did not also deposit the maintenance awarded under Section 125 Cr. P.C. Consequently there is no question of cancelling the order of maintenance under the sub-section. In the circumstances of the case, the learned Magistrate is justified in directing the payment of Rs. 871-40 P., towards the arrears of maintenance from the amount of Rs. 1,100/- deposited by the petitioner,

13. Consequently, though for different reasons, I see no grounds to interfere with the order of the Magistrate and I dismiss this revision.