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Mohamad Khan Haneef Khan Vs. Mehrunnisa and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1977CriLJ923
AppellantMohamad Khan Haneef Khan
RespondentMehrunnisa and anr.
Excerpt:
.....of the language, namely, has obtained a divorce'.the expression 'who has been divorced by' along with the other expression 'has obtained a divorce from' clearly means that both the contingencies were contemplated, the wife having been given a divorce before the commencement of section 125 of the code as well as the wife who has obtained a divorce after such commencement. chandra kishore aggarwal 1970crilj522 ,their lordships have considered the scope of section 4(1)) of the hindu adoptions and maintenance act, 1956, as well as the scope of section 488, the then code of criminal procedure......since the petitioner-respondent refused or neglected to maintain them, they were entitled to claim maintenance to the extent of rs. 300/- per-menses as the annual income of the husband was rupees 12,700/-. the petitioner-respondent took the plea that mehrunnisa became unchaste soon-after marriage. therefore, the husband divorced her as such, according to her personal law, she was not entitled to claim maintenance. it was also stated, inter alia, that the husband was not a person of sufficient means. as such, so much maintenance as claimed by mehrunnisa could not be awarded to her.3. the respondent-first petitioner gave her own statement while the husband examined himself and produced one witness. the learned magistrate considered this evidence and held that the divorce claimed by.....
Judgment:
ORDER

D.B. Lal, J.

1. This criminal revision is directed against the order of the Chief Judicial Magistrate, Dharwar, in a petition under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), filed by the respondent-1 (Mehrunnisa) granting her maintenance of Rs. 60/- per month.

2. Before the learned Magistrate, Mehrunnisa and her son Ismail Khan filed the petition alleging that Mehrunnisa was married with Mohamad Khan Haneef Khan some time in 1954, but soon-thereafter the husband started beating the wife and committed other acts of cruelty with the result that Mehrunnisa is staying with her parents. According to the respondents-petitioners, since the petitioner-respondent refused or neglected to maintain them, they were entitled to claim maintenance to the extent of Rs. 300/- per-menses as the annual income of the husband was Rupees 12,700/-. The petitioner-respondent took the plea that Mehrunnisa became unchaste soon-after marriage. Therefore, the husband divorced her As such, according to her personal law, she was not entitled to claim maintenance. It was also stated, inter alia, that the husband was not a person of sufficient means. As such, so much maintenance as claimed by Mehrunnisa could not be awarded to her.

3. The respondent-first petitioner gave her own statement while the husband examined himself and produced one witness. The learned Magistrate considered this evidence and held that the divorce claimed by the husband was not proved, In the alternative, the learned Magistrate considered that even if Mehrunnisa was a divorced wife, she was entitled to claim maintenance under Section 125 of the Code. Thereafter the learned Magistrate considered the question as to the means of the husband and awarded Rs. 60/- per mensem as maintenance to Mehrunnisa. As regards her son, however, the finding was that he is major and as such could not claim any maintenance. The petitioner-respondent has a grievance against that order and as such he has filed the present revision.

4. It is contended in the foremost by the learned Counsel (hat Section 125 of the Code could not obviate the inhibition for maintenance provided for in the personal law applicable to Mehrunnisa. He asserted that, admittedly, according to personal law applicable to Mehrunnisa, being a divorced wife she could not claim maintenance beyond the period of 'iddat'. That being the position, the learned Counsel contended that Section 125 of the Code did not create a right in favour of the wife as obviously she was not entitled to maintenance duie to divorce which came into effect 20 years ago in 1954.

5. In my opinion, it may not be a correct proposition to state that Section 125 of the Code does not create the right to claim maintenance. It may be stated that the Code of Criminal Procedure essentially deals with the law of procedure in criminal cases. But, its Section 125 specifically deals with the order for maintenance of wife, children and parents, Upon proof of' neglect or refusal to maintain a wife, child or parent, an application can be filed before the Magistrate of the First Class to award such amount of maintenance as he thinks fit which could of course not exceed Rs. 500/-. When the law provided for the maintenances, it also provided for the category of persons entitled to maintenance. In that category, wife was included. The explanation appended to Section 125 of the Code defines, the wife as including the woman who has been divorced by or has obtained a divorce from her husband and has not remarried. The expression 'who has been divorced by or has obtained a divorce' grammatically means the wife who is divorced in the past before Section 125 of the Code came into force or who has obtained a divorce subsequent to the coming into force of that section. Thus, under the plain language of the definition, divorce at a stage prior to the coming into force of the section was included. The learned Counsel for the respondent-petitioner thus contended that upon the very language used in the section, the wife who is already divorced before the amended section came into force, became entitled to claim maintenance. To me, the argument appears to be of some force. In case it was thought that only such a wife is to be included in the definition who shall hereinafter obtain a divorce, the Legislature would have confined itself to the latter part of the language, namely, 'has obtained a divorce'. The expression 'who has been divorced by' along with the other expression 'has obtained a divorce from' clearly means that both the contingencies were contemplated, the wife having been given a divorce before the commencement of Section 125 of the Code as well as the wife who has obtained a divorce after such commencement.

6. In Nanak Chand v. Chandra Kishore Aggarwal : 1970CriLJ522 , their Lordships have considered the scope of Section 4(1)) of the Hindu Adoptions and Maintenance Act, 1956, as well as the scope of Section 488, the then Code of Criminal Procedure. It was held that the scope of the two laws is different and Section 488, Cr.P.C. provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. In this manner, their Lordships distinguished the personal law as contained in the provisions of the Hindu Adoptions and Maintenance Act, 1956. from the right created to claim maintenance under Section 488 of' the then Code of Criminal Procedure. According to their Lordships, there is no relationship between the two. enactments. The ratio of the decision is applicable in this case as the personal law of a divorced muslim wife is sought to be applied to her claim for maintenance under Section 125 of the Code. It may be correct to hold that the said personal law although it disentitles the wife to claim maintenance, will have no effect upon her separate independent right to claim a limited maintenance under Section 125 of the Code. Taking assistance of this case decided by the Supreme Court, a learned Judge of this Court held in Umar Hayath Khan v. Mahaboobunnissa (1975 (2) Kant LJ 495) : 1976 Cri LJ 395 that the remedy under Section 125 of the Code is available to all persons of all religions and has no relationship with the personal law of the parties. When the learned Judge used the expression 'remedy' he really meant the right for which the remedy is provided for in Sections 125 and 126 of the Code. It was also held by the learned Judge in that case that the statute can confer rights and benefits more than what the parties could be entitled to under their personal law. I respectfully concur with this finding. As I laid down above. Section 125 of the Code thus confers the right to claim maintenance. That is obviously due to the fact that the said section itself is provided for to grant maintenance to wife, children and parents who are neglected by their guardians and in a progressive society it was considered that the person responsible to maintain them should be asked to do so and a summary remedy is provided for. With that purpose Section 125 of the Code has been enacted. Presumably the said section confers a right to a divorced wife to claim maintenance. Therefore, Section 125 of the Codes in my opinion, stands independent of any provision, may be contrary or otherwise under the personal law applicable to the claimant. The respondent-petitioner, therefore, in this case although she was divorced 20 years ago can claim the benefit of maintenance as provided for in the new amended Section 125 of the Code.

7. The learned Counsel for the respondent-petitioner further contended that a finding of fact was arrived at before the Magistrate and the divorce set up by the petitioner was not proved. Ordinarily in a revision a finding of fact may not be interfered with, but in the instant case, the learned Magistrate himself has devoted a major part of his judgment with the plea in the alternative assuming that divorce was proved. With that finding of the learned Magistrate, perhaps, it would not be proper to shut out the plea of the petitioner that the respondent is a divorced wife and as such she is not entitled to maintenance.

8. For all that I have stated above, the petition for maintenance was rightly granted. No interference need be made either on the amount of maintenance granted, The present petition is thus without any force and the same is dismissed.


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