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Smt. Zubedabi Vs. Abdul Khader - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1978CriLJ1555
AppellantSmt. Zubedabi
RespondentAbdul Khader
Excerpt:
.....maintenance has been actually paid by the husband to the woman. clause (a) of sub-section (3) clearly states that the magistrate shall cancel the order of maintenance if the divorced wife remarries from the date of such remarriage. hence, the learned sessions judge was perfectly justified in coming to the conclusion that no order for maintenance could be passed in favour of the petitioner. high court have clearly laid down thus (at p......date of application. aggrieved by the said order, the respondent went up in revision before the learned sessions judge, belgaum, which was registered as criminal revn. appln. no. 76 of 1975. the learned sessions judge, by his order dated 22nd nov. 1976 allowed the revision application mainly on the ground that neither in her application nor in her evidence smt. zubedabi had averred that she was unable to maintain herself. hence, he found that the application for maintenance was not tenable. he further held that the revision petitioner before him had offered the entire 'mehr' (dower) amount along with three months' maintenance and that way he was not liable for payment of maintenance under section 127 (3) (b) of the cr. p.c., though he observed that it was of academic interest since he.....
Judgment:
ORDER

G.N. Sabhahit, J.

1. This petition is directed against the order dated 22-11-1976 passed by the learned Sessions Judge, Belgaum, in Criminal Revn. Appln. No. 76 of 1975 on his file.

2. The relevant facts necessary to decide the present petition are these:

Smt. Zubedabi instituted an application under Section 125 of the Cr. P.C. before the Court of the Judicial Magistrate, First Class, J Court, Belgaum on 12-7-1974, She alleged that the respondent was her husband and that she was legally married to him on 25-1-1959 in Khanjar Galli, Belgaum. The parties are Muslims. After the marriage, petitioner resided with her, husband in his house in Arlikatti Deshpande Galli, Belgaum. Marriage was consummated. A boy was conceived and he was subsequently born. He was aged more than 14 years at the time of petition. After the marriage of the petitioner with the respondent, the respondent developed illegitimate intimacy with one Shafiya Savanur and he subsequently married her. He was spending most of his time with her to the total neglect of the petitioner. Thereafter, the parents of the respondent told the petitioner to go and stay with her parents. The respondent executed an agreement as per Exhibit P-1 on 10th July 1965 in favour of the petitioner, agreeing to pay her Rs. 40/- per month towards her maintenance. He failed to pay the same since 1973. The petitioner made representation to the Deputy Director of Public Instruction. Being enraged the respondent gave a public notice divorcing the petitioner in 'Belgaum Samachar' on 30th of March 1974. Thus, the petitioner is a divorced wife of the respondent. Petitioner averred in the petition that she had not remarried after divorce. Hence, she claimed maintenance from her husband under Section 125 of the Cr. P.C. at the rate of Rs. 80/- per month. Her husband was a High School teacher and he had sufficient means to maintain the petitioner, but had neglected.

3. The respondent in the petition on entering appearance resisted the claim of the petitioner. He averred that he had given 'Tallak' three times to the petitioner in her presence on 18-7-1959 itself. An agreement as per Ex. P-1 was obtained from him through coercion. Since the petitioner was challenging the divorce given, he sent the 'Tallaknama1 by registered letter to the petitioner and the same was refused. Subsequently, he got it published in 'Belgaum Samachar' on 30-3-1974. He further asserted that along with the 'Tallaknama' he sent a cheque for Rs. 525/- to the petitioner and the maintenance amount for the Iddat period of three months totalling Rs. 120/-. The same was refused. On this ground he contended that he was not liable to pay the maintenance to the petitioner,

4. The petitioner examined herself as P. W. 1 before the learned Magistrate. She spoke to the petition averments. She examined, in addition, P. W. 2 the Assistant Manager of the Syndicate Bank, Belgaum. He spoke to the fact that the respondent was issuing cheques to the petitioner earlier. P. W. 3 is Mohamadija A. Angolkar, the Head Master of Islamia High School, Belgaum, where respondent is working. He has spoken to the salary of the respondent and that he was sending cheques at the rate of Rs. 40/- per month to his wife - the petitioner, earlier. P. W. 4 is Mohadinsab. He has spoken about the agreement executed by the respondent in favour of the petitioner. As against this, the respondent examined himself as D. W. 1. He examined one Mohammad Ali as D. W, 2. He is the Manager of the Muslim Co-operative Bank, Belgaum. He has spoken to the fact that the petitioner and her brother mortgaged some properties and raised a loan of Rs. 4,000/-. In addition to the oral evidence Exhibits P-1 to P-4 were got marked by the petitioner and Exhibits D-1 to D-13 were got marked by the respondent. The learned Magistrate appreciating the evidence on record, by his order dated 20-10-1975 held that the petitioner was entitled for the maintenance and he awarded maintenance at the rate of Rs. 60/- per month to the petitioner from the date of application. Aggrieved by the said order, the respondent went up in Revision before the learned Sessions Judge, Belgaum, which was registered as Criminal Revn. Appln. No. 76 of 1975. The learned Sessions Judge, by his order dated 22nd Nov. 1976 allowed the revision application mainly on the ground that neither in her application nor in her evidence Smt. Zubedabi had averred that she was unable to maintain herself. Hence, he found that the application for maintenance was not tenable. He further held that the revision petitioner before him had offered the entire 'Mehr' (dower) amount along with three months' maintenance and that way he was not liable for payment of maintenance under Section 127 (3) (b) of the Cr. P.C., though he observed that it was of academic interest since he had already rejected the petition on the other ground. Aggrieved by the said order of the learned Sessions Judge, the original petitioner Smt. Zubedabi has come up before this Court, in the above criminal petition.

5. The learned Counsel appearing for the petitioner vehemently contended that the learned Sessions Judge was not justified in holding that the petitioner neither averred in the petition nor deposed in her evidence that she was unable to maintain herself. She further submitted that Section 125 of the Cr. P.C. clearly enabled a divorced wife to claim maintenance till she got herself remarried. That being so, she submitted that the learned Sessions Judge was not justified in observing that the petitioner was not entitled for maintenance in view of the fact that her quondam husband had offered the 'Mehr' and the maintenance amount for three months. As against that, the learned Counsel appearing for the respondent in this petition argued supporting the findings of the learned Sessions Judge.

6. The point, therefore, that arises for my consideration is : - Whether the facts of the case justify the interference with the order of the Sessions Judge by this Court invoking the inherent powers under Section 482 of the Cr. P.C. ?

7. Adverting to the first point, ii is obvious that Section 125 of the Cr. P.C. makes it clear that the husband is required to maintain his wife (who) is unable to maintain herself. That is what Section 125 (1) (a) clearly states. That being so, it is obvious that the petitioner must positively aver in her petition that she is unable to maintain herself in addition to the facts that her husband has sufficient means to maintain her and that he has neglected to maintain her. On going through the petition carefully, I find that though Smt. Zubedabi has averred in the petition that her husband has means and that he has neglected to maintain her, she has nowhere whispered that she is unable to maintain herself. That being so, her husband in his statement of objections had no occasion to meet that point.

8. Even in her evidence Smt. Zubedabi has not deposed that she is unable to maintain herself. That being so, the learned Sessions Judge has rightly held that the claim for maintenance is not tenable under Section 125 of the Cr. P.C.

9. The next point raised, involves an Interesting question of law. It turns on the interpretation of Expln. (b) to Section 125 (1) and Section 127 (3) (b) of the Cr. P.C.

10. The learned Counsel appearing for the petitioner vehemently contended that Expln. (b) to Section 125 (1), Cr. P. C, clearly states that 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re-married. That being so, the learned Counsel submitted that the present petitioner who was no doubt divorced from her husband but who had not re-married was entitled to institute the petition for maintenance against her husband under Section 125 of the Cr. P.C.

Denying the proposition, the learned Counsel for the respondent invited my attention to Section 127 (3) (b), Cr. P.C. which states:

(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that -

(a) x x x x (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order, -

(i) in the case where such sum was paid before such order, from the date on which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman.

The learned Counsel rightly submitted that these provisions should be read together.

11. Chapter IX of the Cr. P.C. contains provisions for maintenance of wives, children and parents. This Chapter contains Sections 125 to 128. It is obvious that these provisions contained in the Chapter should be considered as a whole and if there is any occasion for interpretation, it is necessary to so construe the provisions of the different sections as to make them consistent and harmonious. It is true that while giving the explanation of the word 'wife' under Section 125, the Law provides that wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried but while speaking of the right of a divorced wife we have to bear in mind the provisions made in Sub-section (3) of Section 127, Cr. P.C. Clause (a) of Sub-section (3) clearly states that the Magistrate shall cancel the order of maintenance if the divorced wife remarries from the date of such remarriage. In Clause (b) it is stated that if the husband of the divorced wife, whether before or after the date of order, pays the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, to the divorced wife, the Court shall cancel such order. Both these clauses are mandatory. There is no discretion left in the Magistrate,

12. In the instant case, the husband has raised the objection at the earliest opportunity in his statement of objections itself that he has divorced his wife and that he sent her on divorce the entire 'Mehr' (dower) amount along with maintenance for the Iddat period i.e., for three months by cheque and that the petitioner has refused the same. On that ground he has challenged the claim for maintenance by the petitioner. During revision before the learned Sessions Judge, he agitated the matter and the Sessions Judge has mentioned in the course of his order that the present respondent has credited in Court, on 10-11-1976, the entire amount of dower i.e. Rs. 525/- plus Rs. 180/-, the maintenance amount' for the Iddat period of three months, calculating the amount at the rate of Rs. 60/- as awarded by the learned Magistrate, It may be recalled that earlier he had sent Rs. 120/- towards the maintenance for three months by cheque in accordance with the agreement entered into at Exhibit P-1 agreeing to pay maintenance at the rate of Rs. 40/- per month. That being so, it becomes obvious that the husband has offered to pay and has paid into Court the whole sum which under the Personal Law applicable to the parties was payable on divorce. It is not in dispute that the parties are Muslims. Mulla in his Principles of Mohamedan Law, 18th Edition, at page 351 states:

Rights and obligations of parties in divorce. -

The following rights and obligations arise on the completion of a divorce, whatever may be the mode of divorce.

(1) xxx

(2) Dower becomes immediately payable. - If the marriage was consummated, the wife is entitled to immediate payment of the whole of the unpaid dower, both prompt and deferred.

Speaking about the maintenance on divorce, it is laid down in the book at page 301 thus -

After divorce, the wife is entitled to maintenance during the period of Iddat. If the divorce is not communicated to her until after the expiry of that period, she is entitled to maintenance until she is informed of the divorce.

In the instant case, Exhibit D. 1 shows the divorce was given on 26th March 1974. On the same day a cheque for Rs. 645/- was sent along with Tallaknama' by registered post to the present petitioner. She has refused the same. Subsequently, the divorce was made known to the wife by publishing the same in the local paper viz., 'Belgaum Samachar', dated 30th March, 1974. Thus, it becomes manifest and it is not denied by the present petitioner that she came to know about the divorce positively on 30th of March 1974. On divorce she is entitled to claim the entire unpaid dower amount which is Rs. 525/- in addition to three months maintenance. The same was sent to her by her husband by registered post as stated above which was refused by the present petitioner. Subsequently, he has deposited the same in Court calculating the maintenance at the rate of Rs. 60/- per month. Thus the quondam husband has complied with the provisions of Section 127 (3) (b) of the Cr. P.C. Therefore, the order of maintenance even if passed has to be cancelled since he has offered the amount even earlier to the filing of the petition and subsequently deposited the same in court. Hence, the learned Sessions Judge was perfectly justified in coming to the conclusion that no order for maintenance could be passed in favour of the petitioner.

13. The learned Counsel for the petitioner strenuously argued that Section 125 (1) Cr. P.C. is not controlled by the Personal Law of parties. That may be so, so far as it goes. But there cannot be any doubt that Section 127 controls the provisions of Section 125 of the Cr. P.C. In fact, the High Court of Bombay, in the case of Smt. Rukhsana Parvin v. Mohomed Hussein 1977 Bom LR 123 : 1977 Cri LJ 1041 has considered this aspect and the views expressed by the Bombay High Court fully supports the view that I have taken above. In that case also the husband had offered the entire arrears of 'Mehr' (dower) along with the maintenance for three months. The wife refused to receive the same and Their Lordships of the Bombay. High Court have clearly laid down thus (at p. 1045 of Cri LJ):

The provisions in Clause (b) of Sub-section (3) of Section 127 have a very serious impact on the right of a Muslim divorced women to claim maintenance under Section 125. These provisions recognise the legal position as settled by several Courts, under the Mahomedan law dealing with the duration of an order of maintenance made in favour of a divorced Muslim wife, Sections 125 and 127 (3) have to be harmoniously construed, and we must read Section 127 (3) (b) as a proviso which will restrict the power of the Magistrate in the matter of entertaining an application for maintenance at the instance of a divorced wife in whose case the provisions in Clause (b) have been complied with.

In a case where the husband satisfies the Magistrate in a proceeding under Section 125 of the Cr. P.C. 1973 that he has complied with the requirements of Section 127 (3) (b), the divorced wife does not hove any subsisting right of maintenance having regard to provisions of Section 127 (3) (b) and the Magistrate will have no jurisdiction in such a case to make an order under Section 125.

Similarly, in a recent decision rendered by the High Court of Andhra Pradesh in the case of Aluri Sambaiah v. Shaik Zahirabi 1978 Cr. LJ 211, it is laid down that Sub-section (3) of Section 127 does not refer to any wife, but refers to a woman who has been divorced. This is very significant because Sub-section (3) deals with women who have been divorced by their husbands. To put it in other words, Sub-section (3) is applicable to a case of a woman after divorce has taken place between her and her former husband. Once again Clause (b) reiterates the same position by using the words 'the woman has been divorced by her husband'. Thus Sub-section (3) deals with cases after divorce has taken place.

14. In the circumstances, I hold that there is no merit in the Criminal Petition under consideration. It is liable to be dismissed and I dismiss the same. I, however, direct that the amount deposited by the respondent in Court amounting to Rs. 705/- shall be paid over to the present petitioner.


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