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Mustt. Sahida Begum Vs. Md. Mofizul Haque - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMustt. Sahida Begum
RespondentMd. Mofizul Haque
Excerpt:
- - 5. but, by now it is well settled that the amendment of the criminal p......haque, j.1. both the revisions are taken up together for disposal. md. mofizul haque divorced his wife mustt. sahida begum in 1967. the magistrate granted her maintenance allowance of rs. 500/- p.m. under section 125 of the cri. p.c. the learned additional sessions judge of dibrugarh reduced the amount to rs. 300/- p.m. now, mofizul haque has preferred this application under section 482 for quashing the proceedings; whereas mustt. sahida begum by her petition prays for restoring the maintenance allowance to rs. 500/- p.m.2. learned counsel mr. b.m. goswami representing md. mofizul haque submits that the divorce was effected long before the commencement of the amended code 1973 and so the proceeding under section 125 by mustt. sahida begum was not maintenable. he further submits that.....
Judgment:

S. Haque, J.

1. Both the revisions are taken up together for disposal. Md. Mofizul Haque divorced his wife Mustt. Sahida Begum in 1967. The Magistrate granted her maintenance allowance of Rs. 500/- P.M. Under Section 125 of the Cri. P.C. The learned Additional Sessions Judge of Dibrugarh reduced the amount to Rs. 300/- P.M. Now, Mofizul Haque has preferred this application Under Section 482 for quashing the proceedings; whereas Mustt. Sahida Begum by her petition prays for restoring the maintenance allowance to Rs. 500/- P.M.

2. Learned Counsel Mr. B.M. Goswami representing Md. Mofizul Haque submits that the divorce was effected long before the commencement of the amended Code 1973 and so the proceeding Under Section 125 by Mustt. Sahida Begum was not maintenable. He further submits that Section 279 of the Mohammedan Law (Personal Law) expressly laid down the law of maintenance to the divorced women and so the provision of Section 125 Cr. P.C. cannot override that personal law. On the other hand, the learned Counsel Smt. U. Baruah on behalf of Mustt. Sahida Begum submits that the provision of Section 125 is applicable to all divorced women whose divorces were effected before or after the New Code 1973. She further submits that the amendment of the Criminal P.C. 1973 had overruled the Personal Law of all religions so far as the proceedings for maintenance Under Section 125 are concerned. She referred Case laws in support of her contentions.

3. In the Old Criminal P.C. 'wife' means a married woman whose marriage is subsisting and does not include a divorced woman, But, in the New Code 1973, the definition 'wife' also includes a divorced woman. The purpose of the Code (Section 125) is to protect also the distressed women who have been divorced both before and after the enforcement of the New Code 1973. Therefore, Mustt. Sahida, who was divorced long before 1973, was also competent to initiate the proceeding Under Section 125 Cr. P.C.

4. Section 279 of Mohammedan Law provides as -

After divorce, a wife is entitled to maintenance during the period of iddat'. The period of iddat is 3 lunar months.

5. But, by now it is well settled that the amendment of the Criminal P.C. 1973 had to some extent overruled the personal law so far as proceedings for maintenance Under Section 125 are concerned. The Section 125 does not make any distinction between the persons belonging to different religions or castes, and it is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties (Relied : [1981]2SCR910 .)

6. A Mohammedan husband is not exonerated from maintaining his divorced wife even after expiry of three months from the date of divorce by reason of Section 279 of the Personal Law. His liability to maintain his divorced wife, even after the period of iddat, continues under the provision of Section 125 of Cr. P.C. A Mohammedan divorced wife can claim maintenance Under Section 125 Cri. P.C. straightway immediately after her divorce or she can firstly claim maintenance for the first three months under Personal Law (Section 279 and then claim maintenance Under Section 125 of the Cri. P.C. for subsequent period until her re-marriage. Therefore, liability of Md. Mofizul Haque to maintain his divorced wife Mustt. Sahida Begum continued even after iddat period.

7. If the Personal Law (Section 279) is held to be final with conclusion that a divorced woman cannot claim any further maintenance beyond the period of iddat, a discrimination would occur between the divorced muslim women and other divorced women belonging to other religion or castes. The Personal Law (Section 279) considers the distress of a divorced woman only for three months, whereas the provision of Section 125 of the Cri. P.C. is meant to protect the distresses of all wives including divorced women irrespective of religion or castes for their future life until their re-marriage. Discrimination is unconstitutional. It is for this reason that the amendment of the Cri. P.C. 1973 is held to have overruled the Personal Law so far as the proceedings for maintenance Under Section 125 are concerned.

8. The submissions of Mr. B.M. Goswami have no force. The submissions of Miss U. Barua have reasons and force.

9. It was established by legal evidence in the proceeding that Md. Mofizul Haque has sufficient means including of real property (Land and rented houses) and business, Mustt. Sahida Begum has no source of income to maintain herself. Both the courts below had rightly held that she was entitled to maintenance allowance and that Md. Mofizul Haque is liable to pay the same to her. The rate of maintenance allowance fixed at Rs. 300/- P.M. by the Additional Sessions Judge, was based on reasons and so it requires no inference.

10. In the result, both the Revisions are dismissed. The rules are discharged. It is directed that Md. Mofizul Haque shall pay maintenance allowance at the rate of Rs. 300/- P.M. to Mustt. Sahida Begum with effect from 16-9-80 (date of her application) till her remarriage.

11. Send down the records to the lower courts.


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