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Aluri Sambaiah Vs. Shaikh Zahirabi and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1978CriLJ211
AppellantAluri Sambaiah
RespondentShaikh Zahirabi and anr.
Excerpt:
.....then anything not mentioned is excluded. - 8. as i have already noted, the case of the petitioner is that all the requirements of clause (b) have been satisfied in this case. 3. the magistrate shall, if he is satisfied that- (a) xx xx xx xx(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......due to her. the court, however, granted the cancellation petition on condition that the petitioner paid the maintenance at the rate of rs. 50/-per month upto the date of divorce and for three months later.3. the respondent preferred to the sessions court a revision petition (crl, r- c. 11/75) challenging this order as being contrary to law. the sessions court held that the petition was not maintainable by the husband and so, remitted it back to the trial court for its being returned to the petitioner. thereupon, the petitioner filed crl. m. p. 516/75 once again for cancellation of the order granting maintenance made in m. c. 10/74. in her counter to this petition the respondent did not specifically once again raise the question of mehr. all the same, the court granted cancellation of the.....
Judgment:
ORDER

Sambasiva Rao, J.

1. A question of some interest revolving on the interpretation of Section 125(3) first proviso and Section 127(3) of the Criminal Procedure Code is raised before me in this Criminal Revision Case.

2. The petitioner now is the husband, the respondent being his quondam wife. The wife filed M. C. 10/74 Under Section 125 Cr.PC claiming maintenance at the rate of Rs. 50/- per month. The defence of the husband, who is the present petitioner, in that case was that he was not a Muslim, that the respondent was a Muslim and that there was no valid marriage between them. The Court rejected these contentions and held that both of them were Muslims that the marriage was solemnised under the Mohamoden Law and that the respondent was entitled to maintenance at the rate of Rs. 50/- per month. Thereafter the petitioner divorced the respondent through exercising his privilege under the Mohamedan Law by saying 'talaq' three times. However, according to the Court's finding, the respondent-wife came to know of this divorce only on 4-1-1975. Having divorced the respondent, the petitioner filed Cri. M. P. No. 451/74 to cancel the maintenance on the ground of divorce. This was obviously filed under Sub-section (3) of Section 127, Cr.PC One of the contentions raised by the respondent-wife to resist the said petition was that Mehr of Rs. 2025/- was due to her. The Court, however, granted the cancellation petition on condition that the petitioner paid the maintenance at the rate of Rs. 50/-per month upto the date of divorce and for three months later.

3. The respondent preferred to the Sessions Court a revision petition (Crl, R- C. 11/75) challenging this order as being contrary to law. The Sessions Court held that the petition was not maintainable by the husband and so, remitted it back to the trial Court for its being returned to the petitioner. Thereupon, the petitioner filed Crl. M. P. 516/75 once again for cancellation of the order granting maintenance made in M. C. 10/74. In her counter to this petition the respondent did not specifically once again raise the question of Mehr. All the same, the Court granted cancellation of the maintenance order in M. C. 10/74 on condition that the petitioner paid the respondent the amount of maintenance and Mehr on or before 30th of April, 1976. Without paying these amounts, the petitioner filed on 27th of April, 1976 Crl. M. P. 217/76 for fixing the Mehr amount. That was because in the order on Crl, M. P. 516/75 the Court did not specify the Mehr amount. The respondent, in her turn, filed Crl. M. P. 274/76 Under Section 128, Cr.PC for awarding to her maintenance for 13 months. This petition was filed on 20th of May, 1976. This petition of the respondent was granted by the lower Court and the present revision has been preferred by the husband against that order.

4. It may also be noted here that the lower Court disposed of Crl. M. P. 217/76 filed by the husband for fixing the Mehr amount. The Court stated there that there was no ambiguity about the amount of Mehr because it was already claimed by the respondent at Rs. 2025/- and that amount should be taken as the correct Mehr amount fixed.

5. Sri Kolanda Reddy for the petitioner raises two contentions. The application filed by the respondent in Crl. M. P. 274/76 is to enforce the order of maintenance made in M. C. 10/74. That order was no more in force once the Court passed a conditional order in Crl. M. P. 516/75. The lower Court, so the learned counsel contends, has misunderstood the scope of Clause (b) of Section 127(3) Cr.PC In the submission of the learned counsel, the lower Court was wrong in thinking that the order made in M. C. 10/74, which was directed to be enforced by the order under revision was still in force because the amount of Mehr waa not yet paid to the respondent. According to Sri Kolanda Reddy the correct meaning of the words 'the whole of the sum' occurring in the said Clause (b) of Section 127(3) is 'the whole of the sum of maintenance' and it does not take in the Mehr amount. He refers to a passage in Mulla's Mahomedan Law wherein it is stated that Mehr or Dower is only an unsecured debt. Therefore, Sri Reddy conr. tends that the debt can be enforced and collected at any time and the subsistence of the debt cannot be an obstruction for the cancellation of the order of maintenance Under Section 127(3), Cr.PC

6. I am not persuaded to accept this construction of Clause (b) of Section 127(3), CrIPC Section 127 deals with alteration in allowance. That allowance is the maintenance which has been awarded by a Court Under Section 125, Cr.PC Sub-section (1) of Section 127 provides for alteration of that allowance or maintenance on proof of a change in the circumstances of the person concerned. Sub-section (2) confers power on the Magistrate to vary or cancel the order awarding maintenance, if in his opinion, it is in consequence of any de-cteion of a competent Civil Court. Then Sub-section (3) provides for cancellation of orders made Under Section 125 in favour of women who have been divorced or who have obtained divorces from their husbands. Under this Sub-section the Magistrate is empowered to cancel the order made Under Section 125 in favour of a woman who has been divorced by, or who has obtained divorce from her husband, if she has, after the date of such marriage, remarried. That is provided under Clause (a) of Sub-section (3). Then Clause (b) proceeds to provide that an order Under Section 125 can also be cancelled where the woman, who has been divorced by her husband, 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. If the sum was paid before such order, the cancellation shall be effective from the date on which such order was made. In any other case, the cancellation shall be effective from the date of expiry of the period, ii any, for which maintenance has been actually paid by the husband to the woman.

7. In the first place, it is worthy of note that Sub-section (3) does not refer to any wife; it refers to a woman who has been divorced. This is very significant because Sub-section (3) deals only with women who have been divorced by their husbands or who have themselves obtained divorces from their husbands. To put it in other words, Sub-section (3) is applicable to a case of a woman after a 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.' Therefore, there is no doubt that Sub-section (3) deals only with cases which arise after the divorce has taken place. Sri Kolanda Reddy endeavours to bring this case only under Clause (b). In fact, the attempt on the part of his counterpart in the lower Court was also to seek cancellation of the order awarding maintenance under Clause (b) of Section 127(3) and under no other provision.

8. As I have already noted, the case of the petitioner is that all the requirements of Clause (b) have been satisfied in this case. The respondent has been divorced and she has received all the maintenance upto 4-4-1975 which takes in the Iddat period of three months from 4-1-1975 on which day the wife came to know of the divorce. Therefore, it is maintained that the lower Court should have cancelled the order of maintenance made in M. C. 10/74. As has been already noted, this contention is founded on the interpretation laid by the learned counsel on the words 'the whole of the sum'1 meaning 'the whole of the sum of maintenance.'

9. This construction of the words 'the whole of the sum' cannot be accepted. It is contrary to the specific language of Clause (b) of Sub-section (3). The material portions of Sub-section (3)(b) may be usefully extracted here.

3. The Magistrate shall, if he is satisfied that-

(a) xx xx xx xx(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.

It is manifest from a reading of Clause (b)1 that the words 'the whole of the sum1' are qualified by the words 'which, under any customary or personal law applicable to the parties, was payable on such divorce.' Therefore, 'the whole of the sum'' contemplated by Clause (b) is the sum payable to the woman on her divorce under any customary or personal law applicable to the parties. It is not disputed - and in fact it has also been decided in M. C. 10/74 - that the parties are governed by the Mohamedan Law. So the petitioner would be entitled to cancellation of the order of maintenance under Clause (b) of Section 127(3) only if the whole of the amount payable under the Mohamedan Law to the respondent on the divorce, was given to her. The Court has already ruled that Mehr in a sum of Rs. 2025/-was due to her. This certainly was payable to the respondent under the Mohamedan Law. It is true as pointed out by Sri Kolanda Reddy that the learned author Mulla in para 295 of his treatise on the Mohamedan Law, 17th Edition says that the Dower is a debt but an unsecured debt. The fact that Dower or Mehr is a debt does not detract from the right of the Mohamedan woman to be paid that Mehr or Dower on her being divorced by her husband. The same learned author explains the effects of divorce in paragraph 336 of the aforesaid treatise. Enumerating the rights and obligations of the parties o' divorce, the learned author states that 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. If the marriage was not consummated and the amount of Dower was specified in the contract, she is entitled to half that amount.

10. In this case there is no doubt or dispute that the marriage between the two parties had been consummated. Therefore, the respondent as the woman who has been divorced, is entitled to immediate payment of the whole of the unpaid Dower both prompt and deferred. This is the immediate consequence of divorce under the Mohamedan Law. rt is thus clear that Mehr is an amount, which was payable to the respondent under the Mohamedan Law when the petitioner divorced her. Unless that amount also was paid by the petitioner to the respondent, it cannot be said that the whole of the sum payable on divorce under the personal law was paid. There is no warrant at all in Section 127 Cr.PC or in the Mohe-medan Law to say that the words 'the whole of the sum' contained in Clause (b) refer only to maintenance and nothing else. Not only maintenance but also Mehr or Dower as is payable under the personal Law on such divorce must also be paid in full before cancellation is sought under Clause (b).

11. Learned Counsel for the petitioner relies on a Bench decision, of the Bombay High Court in Rukhsana Parvin v. Sheikh Mohd. Hussain. 1977 Cri LJ 1041 where the Division Bench held that an application Under Section 125 Cr.PC was not maintainable once Mehr and maintenance for Iddat period has been paid to a divorced Muslim woman. In fact, while construing Section 127(3) of the new Code, Chandurkar, J. speaking for the Division Bench, observed in Para 11:

At this stage, it may be made clear that there is no dispute that under the Mahomedan personal law, the amount which is payable to a divorced wife is the Mehr amount and the amount of maintenance during the Iddat period.

Therefore, the decision relied on does not afford any support to the learned counsel's contention. On the other hand, the view expressed by the Division Bench accords with the construction which I have laid on Clause (b) of Section 127(3).

12. Such being the legal position, there cannot be any doubt that the lower Court is right in granting the respondent's application in Cri. M. P. 274/76 because the amount of Mehr was not paid to the respondent. So, on this ground the order of the lower Court cannot be objected to.

13. The second ground of attack on the order is that in any case, the lower Court went wrong in awarding maintenance for 13| months. Relying on Section 125(3) first proviso Sri Kolanda Reddy argues that no warrant for recovery of maintenance due under an order passed Under Section 125 shall be issued unless the application is made to levy such amount within a period of one year from the date on which it became due. This objection red-1 sed to the order of the lower Court ignores the fact that in its order in Cri. M. P. 516/75 the Court granted time to the petitioner to pay the maintenance and Mehr amount on or before 30th of April, 1976. Therefore, the respondent could not file an application Under Section 128 until the expiry of the period on 30th of April, 1976. She filed the present application Under Section 128 on 20th of May,-1976 within a month after the expiry of the time given by the Court to the petitioner to pay the amounts. Therefore, the lower Court was very much justified in granting the petition and awarding maintenance for 13$ months in pursuance of the order in M. C. 10/74,

14. The above are the only two contentions raised in support of the Criminal Revision Case and I see no substance in either of them. In the result, the Criminal Revision Case is dismissed.


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