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M. Sidhik Moulavi Vs. Nabeesa Beevi and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1973CriLJ1020
AppellantM. Sidhik Moulavi
RespondentNabeesa Beevi and anr.
Cases ReferredAboobaker v. Kadeesa
Excerpt:
- - 1. the main question in this revision petition arising out of a proceeding under section 488 of the code of criminal procedure is a fairly interesting question though a short question......since the personal law of the parties, the mahornedan law, allows maintenance for the wife for the iddat period (3 months and 10 days after divorce), the wife is entitled to maintenance for that period.this conclusion of the sub-divisional magistrate appears to be erroneous, in view of the very language of section 488 (1) of the code of criminal procedure and more so. in view of the decision of this court in abdurahiman musaliyar v. neliyaparambath ayissu : air1962ker234 . where govinda menon j., following the decision of the high court of jammu and kashmir in ahmad giri v. mst. begha air 1955 j & k 1 : 1955 cri lj 1067 has held that the woman must be a wife at the time of filing the application under section 488 of the code. the learned judge has pointed out that, under the personal.....
Judgment:
ORDER

T.C. Raghavan, C.J.

1. The main question in this revision petition arising out of a proceeding under Section 488 of the Code of Criminal Procedure is a fairly interesting question though a short question. The Sub Divisional Magistrate has held that the petition for maintenance was filed by the first respondent, the wife, after the petitioner divorced her. Still, the Magistrate has held that, since the personal law of the parties, the Mahornedan law, allows maintenance for the wife for the iddat period (3 months and 10 days after divorce), the wife is entitled to maintenance for that period.

This conclusion of the Sub-Divisional Magistrate appears to be erroneous, in view of the very language of Section 488 (1) of the Code of Criminal Procedure and more so. in view of the decision of this Court in Abdurahiman Musaliyar v. Neliyaparambath Ayissu : AIR1962Ker234 . where Govinda Menon J., following the decision of the High Court of Jammu and Kashmir in Ahmad Giri v. Mst. Begha AIR 1955 J & K 1 : 1955 Cri LJ 1067 has held that the woman must be a wife at the time of filing the application under Section 488 of the Code. The learned Judge has pointed out that, under the personal law. she might be entitled to maintenance for the period of iddat. but she can have that only in a Civil Court and not under Section 488 of the Criminal Procedure Code, if she was not a wife at the time of filing the petition.

2. In this connection (though it may not be strictly necessary for the purpose of this case). I may just refer to another decision of this Court by Anna Chandy J. in Aboobaker v. Kadeesa (1966 Ker LT 857). In that case, the divorce came after the filing of the petition: that is, the written statement of the husband in the petition was treated as divorce. And Anna Chandy J, has held that, since, at the time of filing the petition, the woman was a wife, the petition was maintainable; and that, since the divorce came after the filing of the petition, she was entitled to maintenance for the period of iddat. The learned Judge has also held that this applies to Hanafis whose personal law required payment of maintenance during the iddat period.

Thus, the position is that the woman must be a wife at the filing of the petition; that in the case of Hanafis the woman is entitled to maintenance for the period of iddat also in such a case, and in the case of Shafis. if the wife was irrevocably divorced, the woman is not entitled to maintenance during the iddat period, i.e., she is entitled to maintenance only till the divorce.

3. Now that thg first respondent was not a wife at the. time of filing the petition, she is not entitled to maintenance under Section 488 of the Code of Criminal Procedure. Whether the parties are Shafis or Hanafis and whether the first respondent is entitled to maintenance during the period of iddat does not arise in this case, because, as indicated already, that question can arise only in a case where the woman was a wife at the time of filing the petition and the divorce came thereafter1 in a case where the divorce was before the filing of the petition, the question of maintenance for the period of iddat does not arise, since such a question can arise only in a civil court and not under Section 488 of the Code of Criminal Procedure.

4. The next question relates to the quantum of maintenance allowed to the second respondent, a child of four years. The counsel of the petitioner has claimed that the amount of Rs. 40/- per month allowed by the lower court for the child is unduly high. I do not think that the circumstances and the facts pointed out by the Sub Divisional Magistrate in his judgment will justify this contention. The petitioner is an Arabic teacher; and he has some property also. Therefore, I do not think that the amount of Rs. 40/- is unduly high.

5. The revision petition is allowed in part; and the decision awarding main-tenace to the wife is set aside. The maintenance awarded td the child is upheld and to that extent the revision petition is dismissed.


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