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SCR.A/83/1989 2/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 83 of 1989
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BIBI
SULTAN SAIYAD ABED SAIYAD
Versus
MAHAMMADALI
NAKIALI HAIDER MIRZA & 1
=========================================================
Appearance
:
MR
HN JOSHI for MR PM THAKKAR
for
petitioner.
NOTICE SERVED for Respondent : 1,
MR M.R.MENGDEY,
ADDL.PUBLIC PROSECUTOR for Respondent :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
Date
: 08/04/2010
ORAL
JUDGMENT
This
is a petition under Article 227 of the Constitution of India by the
petitioner to challenge the order passed by the Sessions Court, Kheda
at Nadiad, on 18.11.1987, in Criminal Revision Application
No. 102/1987 filed by the petitioner to challenge the order passed by
the Judicial Magistrate, First Class, Khambhat, in Criminal Misc.
Application No. 9/1987 below Exh.4, on 26.5.1987.
2. The
petitioner-wife had filed an application under Section 125 of the
Code of Criminal Procedure claiming maintenance against the
respondent. The Magisterial Court awarded maintenance and later on
the petitioner preferred an application being Criminal Misc.
Application No.9/1987 under Section 125(3) of Cr.P.C for recovery of
Rs.1740/- from the respondent. In that application, the
respondent-husband gave an application Exh.4, inter alia, contending
that the petitioner is the divorced wife of the respondent and by
virtue of the provisions contained in Section 7 of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 [ the Act of 1986
for short], she is not entitled to maintenance. The learned
Magistrate accepted the said contention and held that the petitioner
is not entitled to recover any maintenance from the respondent and is
also not entitled to file an application under Section 125(3) of
Cr.P.C for recovery of amount of maintenance in future. The learned
Magistrate also held that the petitioner is entitled to claim
maintenance from her relatives and/or Wakf Board, if they do not pay.
3. The
Sessions Court by judgment and order dated 18.11.1987 dismissed the
criminal revision application and upheld the view taken by the
Magisterial Court. Hence, this petition.
4. Heard
learned advocate Mr. Joshi for the petitioner and learned A.P.P.
Mr.Mengdey for the State. The respondent-husband, though served, has
chosen not to appear before the Court.
5. A
question that arises in this petition is, whether a divorced muslim
woman can claim maintenance under Section 125 of the Code of Criminal
Procedure ? The Courts below have taken a consistent view that a
divorced muslim woman can claim maintenance under Section 125 Cr.P.C.
Hence, this petition.
6. Learned
Advocate Mr.Joshi for the petitioner submitted that both the Courts
below erred in holding that the petitioner being a divorced muslim
women is not entitled to claim maintenance under Section 125 Cr.P.C,
in view of various decisions of this Hon’ble High Court as well as
the Hon’ble Apex Court on this point.
7. In
this context, reference may be made to a decision of this Court in
the case of Arab Ahmedbin Abdulla v. Arab Bail Mohmuna
Saiyadbhai & Anr, reported in 1988(1) GLR 452, where this
Court held that Muslim Women (Protection of Rights on Divorce) Act,
1986, does not say that the husband is liable to pay maintenance to
the divorced wife only during the period of `Iddat’. The liability
lasts so long as the woman does not remarry and so long as she is in
need of maintenance. The Court observed that the Act does not purport
to nullify the Supreme Court decision in Shah Bano’s case (AIR 1985
SC 945). Ultimately, the Court took a view that there is no provision
in 1986 Act, which nullifies the orders passed by the Magistrate
under Sections 125 & 127 Cr.P.C ordering the husband to pay
maintenance to a divorced muslim woman or takes away the vested
rights which are crystalized by the order passed under section 125 or
section 127 Cr.P.C.
7.1 Subsequently,
a Full Bench of this Court in Special Criminal Application No. 83 of
1989 and allied matters in Bibi Sultan Saiyad Abed Saiyad & Ors.
v. Mahammadali Nakiali Haider Mirza & Ors., by order dated
3.4.1998 took a view that if there are conflicting decisions of other
Courts, the Courts in Gujarat should follow the decision in the case
of Arab Ahmedbin Abdulla v. Arab
Bail Mohmuna Saiyadbhai & Anr, reported in 1988(1) GLR 452,
7.2 This
Court again in the case of Mumtazben Jusabbhai v. Mahebubkhan
Usmankhan Pathan & Anr, 1999(1) GLR 609, took a view that
in spite of the enactment of Muslim Women (Protection of Rights on
Divorce) Act, 1986, criminal courts do not cease to have powers to
award maintenance to muslim women even after divorce.
7.3 Again,
in the case of Sahinda Abdulla Nathalwala v.
State of Gujarat, (2001)2 GLR 1646, the Court said that if
during the pendency of application for maintenance under Section 125
of Cr.P.C., the husband gives divorce to the applicant-wife, an order
passed under Section 125 of Cr.P.C by the Magistrate would be legal
and would survive.
7.4 Again,
in IQBAL BANO v. STATE OF U.P. and Anr., (2007)6 SCC 785,
the Apex Court took a view that the Muslim Women (Protection of
Rights on Divorce) Act, 1986 applies only to divorced muslim women
and not to the women who are not divorced, and since the proceedings
under Section 125 Cr.P.C and the 1986 Act are tried before the same
Court and given the beneficial nature of the 1986 Act, even if a
divorced muslim woman applies under Section 125 Cr.P.C, it is open to
the Court to treat it as an application under the 1986 Act.
7.5 Lastly,
by a decision in the case of Shabana Bano v. Imran Khan,
2010(1) GLR 223, the dispute is now set at rest, wherein,
after considering various decisions, the Apex Court took a view that
even a divorced woman would be entitled to claim maintenance from her
divorced husband, as long as she does not remarry, and this being a
beneficial piece of legislation, the benefit thereof must accrue to
the divorced muslim woman. The Court also crystallized the right of
divorced muslim women by observing that eve if a muslim woman has
been divorced, she would be entitled to claim maintenance from her
husband under Section 125 of the Cr.P.C., after the expiry of period
of iddat also, so long as she does not remarry.
8. In
the light of the above development of law, both the Courts below
erred in holding that the petitioner being a divorced muslim woman is
not entitled to claim maintenance under Section 125 Cr.P.C. The
petition, therefore, deserves to be accepted and the orders passed by
both the Courts below deserve to be set aside.
9. The
petition is allowed. The order dated 26.5.1987 passed by the learned
J.M.F.C.Khambhat below Exh.4 in Criminal Misc. Application No.9/1987
as also the order dated 18.11.1987 passed by the Sessions Court,
Kheda at Nadiad dismissing Criminal Revision Application No.102/1987,
are hereby set aside. The learned J.M.F.C. Khambhat is directed to
proceed with Criminal Misc. Application No.9/1987 preferred under
Section 125(3) of Cr.P.C in accordance with law and shall also
entertain similar applications if preferred by the petitioner.
Rule is made absolute accordingly. Interim relief, if any, shall
stand vacated. R & P, if called for, shall be sent back to the
Court below.
[A.L.Dave,J.]
(patel)
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