JUDGMENT
P.K. Biswas, J.
1. This is an application under Section 397,401 and 482 of the Code of Criminal Procedure, 1973 filed by petitioner shehnaz (r) Shahjahan against the State of West Bengal and Opposite Party No. 2 Md. Ekram Khan seeking to set aside the order dated 22.3.2000 passed by the learned Judicial Magistrate, 1st Class, 2nd Court, Sealdah, South 24-Parganas in Case No. M-ll of 1996 (T.R. No. 11 of 98) dismissing the petition under Section 125 of Cr. PC filed by the petitioner and allowing the petition under Section 127(2)(b) of Cr. PC read with Sections 5 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 filed by the Opposite Party No, 2.
2. The facts leading to the present revisional application are as under :-
The present petitioner had filed an application before the concerned Court under Section 125 Cr.PC against the Opposite party No. 2 alleging
neglect to maintain her by the said Opposite party No. 2 as also torture, both physical and mental for which ultimately the petitioner was driven out on 16.6.96 from her matrimonial home.
3. Opposite Party No. 2 had also filed an application under Section 127(2)(b) read with Sections 5 and 7 of the Muslim woman (Protection of Rights on Divorce) Act, 1986 for dropping the petition under Section 125 of the Cr. PC filed by the petitioner alleging that during the pendency of the said case he had given Talak’ to the petitioner on 22.9.97 in presence of witnesses.
4. After contested hearing. It was held by the learned Magistrate that the factum of Talak came to be known to the petitioner on 29.9.97 when O.P. No. 2 came up with an application under Section 127(2)(b) of Cr. PC read with Sections 5 and 7 of Muslim Women (Protection of Rights on Divorce) Act, 1986 and finally the learned Court below came to the conclusion that the petitioner being a divorced wife is not entitled to claim maintenance from the Opposite Party No. 2 with a further finding that the O.P. No. 2 is not bound to pay maintenance to the petitioner for iddat period also as the said Opposite Party No. 2 had been paying ad-interim maintenance to his divorced wife contrary to provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986, and as such the petitioner’s application under Section 125 Cr. PC was dismissed.
5. The present revisional application has been directed seeking to set aside the Impugned order as the aforesaid order suffers from legal and factual infirmities which go to the very root of the matter resulting the impugned order being not sustainable in law. Moreover, the learned Court below has failed to appreciate the provisions of Chapter XVI as also Subsection 2 of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and as such there has been miscarriage of justice for which protection has been sought for by the petitioner by approaching this Court.
6. I have heard the learned counsels of both sides at length.
7. In Shah Bano’s case , principal question came up for consideration before the apex Court was the Interpretation of Section 127(3)(b) of Cr.PC that where a Muslim woman had been divorced by her husband and paid her mahr, would it Indemnify the husband from his obligation under’ the provisions of Section 125 Cr. PC.
8. In the aforesaid case, next question came up for consideration before the apex Court that whether the amount of mahor constitutes a reasonable alternative to the maintenance order.
9. It was held by the apex Court in the aforesaid decision that although Muslim Personal Law limits the husband’s liability to provide maintenance for the divorced wife to the period of ‘iddat. It does not contemplate a situation envisaged by Section 125 of Cr. PC. It was further held that it would not be incorrect or unjustified to extend the above principle of Muslim Law to cases in which a divorced wife is unable to maintain herself after the period of Iddat, she is entitled to take recourse to Section 125 Cr. PC.
10. After the aforesaid judgment, the Parliament enacted Muslim Women (Protection of Rights on Divorce) Act, 1986.
11. Before the passing of the aforesaid Act, a Muslim woman who was divorced by her husband was granted a right to maintenance from her husband under the provisions of Section 125 Cr.PC until she remarries.
12. Although in the aforesaid case, the apex Court has clearly explained as to the rationale behind Section 125 Cr.PC to make provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or destitution on the part of a Muslim Woman, yet, even after that decision, from the side of the husband/O.P. almost in a general way, It was sought to be explained by Interpreting Section 3 of the said Act that a reasonable and fair provision and maintenance to be made and paid by her former husband within the Iddat period only and It cannot be for life, but would only be for the period of Iddat and exactly such provision has been made in the aforesaid Act.
13. On such Issue, however, divergent views have been taken by different single Bench of this Court as also Division Bench of other High Courts. But this matter has now been finally settled by the apex Court in Danial latiffi v. Union of India and the conclusion of the apex Court in the aforesaid decision may be quoted hereunder:
“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(l)(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 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 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”.
14. In view of the aforesaid settled position of law, the findings of the learned Court below appear to be absolutely erroneous and as such it cannot be allowed to stand and It, therefore, requires to be set aside, with a direction upon the concerned Court to rehear the application under Section 125 of Cr.PC filed by the petitioner and also to dispose of the application filed by O.P. No. 2 under Section 127(2)(b) read with Sections 5 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986
In light of the aforesaid direction of the apex Court after giving an opportunity to the parties to adduce evidence, if any, in addition to the evidence already on record and thereafter upon hearing arguments of both sides he shall dispose of both the matters as expeditiously as possible preferably within
4 (four) months from the date of communication of this order.
15. In view of the above, this revisional application should have to be allowed and the impugned order should be set aside.
16. Thus, this revisional application is allowed and the impugned order dated 22.3.2000 is hereby set aside. The matter is sent back to the Court below with a direction upon the concerned Court to re-hear the application under Section 125 of Cr.PC filed by the petitioner and also to dispose of the application filed by O.P. No. 2 under Section 127(2)(b) read with Sections
5 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 in the light of the aforesaid decision of the apex Court after giving an opportunity to the parties to adduce evidence. If any, in addition to the evidence already on record and there after upon hearing arguments of both sides he shall dispose of both the matters as expeditiously as possible preferably within 4 (four) months from the date of communication of this order. Xerox certified copies, if applied for by the parties be given to them within a fortnight from the date of their application.