Posted On by &filed under High Court, Madhya Pradesh High Court.


Madhya Pradesh High Court
Mst. Noorbano vs Ibrahim Khan on 4 August, 2000
Equivalent citations: 2000 (4) MPHT 62
Author: M Sharan
Bench: M Sharan


ORDER

Maithli Sharan, J.

1. This is a petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) invoking the inherent jurisdiction of this Court, filed by a divorced wife against her husband.

2. The brief facts necessary for the disposal of this petition lie in a narrow compass: On 4-3-1991 the petitioner filed a petition under Section 125 of the Code in the Court of the concerned Magistrate against her husband/non-petitioner, claiming maintenance at the rate of Rs. 700/- per month, alleging, inter alia, that she was being ill-treated by the non-petitioner as she had not given birth to any child, and that the non-petitioner was even preparing for performing a second marriage. He had, on some pretext or the other, sent her to her parents house and did not care at all regarding her maintenance. Thus, being neglected by the non-petitioner she had been living with her parents. The non-petitioner filed his reply dated 26-6-1991 to the effect that, in fact, and in law, the petitioner was no longer his wife as he had already divorced her by sending a registered letter dated 10-11-1990 and, therefore, she was not entitled to claim any maintenance allowance from him. Thereafter the non-petitioner filed an application also under Section 5 read with Section 7 of The Muslim Women (Protection of Rights on Divorce) Act, 1986, (for short ‘the Act’) raising a preliminary objection that in view of the provisions of the Act, the petition filed by the petitioner under Section 125 of the Code was not maintainable. The learned trial Court, while deciding this application held, vide its order dated 19-6-1992, that though the non-petitioner could not prove the sending of the registered letter by him to the petitioner regarding the declaration of divorce by him yet the fact remained that since he had mentioned in his reply dated 26-6-1991 that he had divorced the petitioner, it would be taken to be sufficient proof in the matter that he had divorced her, if not from 7-11-1990 then certainly it would be taken to have become effective from 26-6-1991 i.e. from the date of filing of his reply to the said petition under Section 125 of the Code. Taking this view in the case the learned trial Court by its order dated 30-8-1996 dismissed the petition holding that the said petition under Section 125 of the Code was not maintainable in view of the provisions of the Act.

3. Being aggrieved by the order passed by the learned trial Court the petitioner filed a Criminal Revision No. 86 of 1996 in the Court of Session which was dismissed by the learned Additional Sessions Judge, Sabalgarh, District Morena, vide his order dated 17th February, 1998, Now aggrieved by the order passed by the learned Addl. Sessions Judge the petitioner has invoked the inherent jurisdiction of this Court.

4. I have heard the learned counsel on both the sides and have carefully gone through the record of the case. The main contention of the learned counsel for the petitioner (wife) is that both the Courts below have wrongly interpreted the provisions of the Act vis-a-vis Section 125 of the Code and this all has resulted in the abuse of the process of the Court, ultimately, giving rise to miscarriage of justice. On the other hand, learned counsel for the non-petitioner (husband) contended that the provisions of the Act are very clear that after the divorce the wife could not claim maintenance under Section 125 of the Code.

5. As is well known The Muslim Women (Protection of Rights on Divorce) Act, 1986, was passed as the decision of Hon’ble the Apex Court in Mohd. Ahmed Khan v. Shah Bano Begum and Ors. (AIR 1985 SC 945) had led to some controversy regarding the obligation of the muslim husband to pay maintenance allowance to the divorced wife. The objects and reasons appended to the Act clearly provide that muslim divorced women shall be entitled to a reasonable and fair provision and maintenance within the period of Iddat by her former husband. Clause (1) of Section 3 of the Act dealing with Mahr or other properties of muslim woman to be given to her at the time of divorce, starts with the non-obstante clause as under :–

“Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to– (a) a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband.”

The aforesaid provision clearly over-rides the provisions of Section 125 of the Code, meaning thereby that after the enforcement of the Act the right of a divorced muslim woman for maintenance would be regulated by the Act and not by the Code. In other words, the substantive right of the divorced woman to claim maintenance from her former husband, though limited to the Iddat period, is not lest after the enforcement of the Act, the remedial measures are slightly changed from the Code to the Act, and naturally, therefore, this provision of the Act would hold the filed. The remedy in this regard could well be chosen under Section 5 of the Act by the divorced woman and her former husband if they declare, by affidavit or by any other declaration in writing that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code. Therefore, the natural corollary is that if they do not do so, they would be governed by the Act and not by the Code. Thus, as soon as a muslim woman is divorced, the provisions of the Act would come into play and hold the field and the former muslim husband would be liable to maintain his wife during the period of Iddat and not thereafter.

6. Applying the above discussed legal position to the facts of the instant case it is but clear that though initially the petitioner had a right to file an application under Section 125 of the Code but when the non-petitioner filed his reply mentioning therein that he had divorced her, the situations changed thereafter. As seen as the petitioner was divorced by the non-petitioner, her application under Section 125 of the Code got frustrated and though she did have the right to claim maintenance, of course, limited to the period of Iddat, yet the remedial measures were to be found elsewhere. She was required to move a petition under the provisions of the Act which she did not do. Apparently enough, her application under Section 125 of the Code was not maintainable, and in this view of the matter it could not be said that the view taken by both the Courts below was wrong.

7. In the result, it could not be said that there had occurred any abuse of the process of the Court or for that matter it had resulted in any miscarriage of justice. Consequently, this petition is devoid of any merit and it is, therefore, dismissed.


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