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Wednesday, April 8, 2015

Muslim Women Divorced/alleged to be divorced - maintainability of sec.125 Cr.p.c. - Jurisdiction of Family court & Magistrate court - Apex court held that it was already decided by constitution Bench etc., that a Divorced Muslim women is entitled for maintenance and the family court as well as magistrate court both has got jurisdiction to entertain the application under sec.125 Cr.P.C. - No women left with empty hands pending trial with out granting interim maintenance - Retirement of husband is not a ground for reducing the maintenance amount already granted pending appeal 2015 SC msk law reports

The  learned  Family  Judge,  Family
Court, Lucknow while  dealing  with  the  application  forming  the  subject
matter Criminal Case No. 1120 of 1998 did not accept the  primary  objection
as regards the maintainability under Section 125 CrPC as the  applicant  was
a Muslim woman and came to hold even after the divorce  the  application  of
the wife under Section 125  CrPC  was  maintainable  in  the  family  court.
Thereafter, the learned Family Judge appreciating the  evidence  brought  on
record came to opine that the marriage between the parties had  taken  place
on 26.4.1992; that the husband had given divorce on 18.6.1997; that she  was
ill treated at her matrimonial home; and that  she  had  come  back  to  her
parental house and  staying  there;  that  the  husband  had  not  made  any
provision for grant of  maintenance; that the wife did not have  any  source
of income to support her, and the plea advanced by the husband that she  had
means to sustain her had not been proved; that as the  husband  was  getting
at the time of disposal of the application as  per  the  salary  certificate
Rs.17654/- and accordingly directed that a sum of Rs.2500/- should  be  paid
as monthly maintenance allowance from the date of submission of  application
till the date of judgment and thereafter Rs.4000/- per month from  the  date
of judgment till the date of remarriage.

The High Court took note  of
the fact that the husband had retired on  1.4.2012 and consequently  reduced
the maintenance allowance to Rs.2000/-from 1.4.2012 till remarriage  of  the
appellant herein.  Being of this view the learned Single Judge modified  the
order passed by the Family Court.  Hence,  the  present  appeal  by  special
leave, at the instance of the wife.

the applicability of Section  125
CrPC to a Muslim woman who has been  divorced. 

 In  Shamim  Bano  v.  Asraf Khan[7], 
this Court after referring to the Constitution Bench  decisions  in
Danial Latifi v. Union of India[8] and Khatoon Nisa v. State of U.P.[9]  had
opined as follows:-
"13.  The  aforesaid  principle  clearly  lays  down  that  even  after   an
application has been filed under the provisions of the Act,  the  Magistrate
under the Act has the power to grant maintenance in  favour  of  a  divorced
Muslim woman and the parameters and  the  considerations  are  the  same  as
stipulated in Section 125 of the Code. We may note that  while  taking  note
of the factual score to  the  effect  that  the  plea  of  divorce  was  not
accepted by  the  Magistrate  which  was  upheld  by  the  High  Court,  the
Constitution Bench opined that as the Magistrate could exercise power  under
Section 125 of the Code for grant of maintenance in  favour  of  a  divorced
Muslim woman under the Act, the order  did  not  warrant  any  interference.
Thus, the emphasis was laid on the retention of the power by the  Magistrate
under Section 125 of the Code and the effect of ultimate consequence.

Slightly recently, in  Shabana  Bano  v.  Imran  Khan[10],  a  two-Judge
Bench, placing reliance on Danial Latifi (supra), has ruled that:-

"21. The appellant's petition under Section 125 CrPC would  be  maintainable
before the Family Court as long as  the  appellant  does  not  remarry.  The
amount of maintenance to  be  awarded  under  Section  125  CrPC  cannot  be
restricted for the iddat period only."

Though the aforesaid decision was rendered interpreting  Section  7  of  the
Family  Courts  Act,  1984,  yet  the  principle  stated  therein  would  be
applicable, for the same is in consonance with the principle stated  by  the
Constitution Bench in Khatoon Nisa (supra)."

 In view of the aforesaid dictum, there can be no shadow of doubt  that
Section 125 CrPC has been rightly held  to  be  applicable  by  the  learned
Family Judge.

 But what is disturbing is  that
though the application for grant of maintenance was filed in the year  1998,
it was not decided till 17.2.2012.  It is also shocking to note  that  there
was no order  for  grant  of  interim  maintenance.   It  needs  no  special
emphasis to state that when an  application  for  grant  of  maintenance  is
filed by the wife the delay in disposal  of  the  application,  to  say  the
least, is  an  unacceptable  situation.   It  is,  in  fact,  a  distressing
phenomenon.  An application for grant of maintenance has to be  disposed  of
at the earliest.  The family courts, which have  been  established  to  deal
with the matrimonial disputes, which include application under  Section  125
CrPC, have become absolutely  apathetic  to  the  same.  

Retirement is not ground for reducing quantum of maintenance

 In the instant case, as is  seen,  the  High  Court  has  reduced  the
amount of maintenance from Rs.4,000/- to Rs.2,000/-.  As  is  manifest,  the
High Court has become oblivious of the fact that she  has  to  stay  on  her
own.  Needless to say,  the  order  of  the  learned  Family  Judge  is  not
manifestly perverse.  There is nothing perceptible  which  would  show  that
order is a sanctuary of errors.  In fact, when the order is based on  proper
appreciation  of  evidence  on  record,  no  revisional  court  should  have
interfered with the reason on the base that  it  would  have  arrived  at  a
different or another conclusion.  When substantial justice  has  been  done,
there was no reason to interfere.  There may be a shelter over her  head  in
the parental house, but other  real  expenses  cannot  be  ignored.   Solely
because the husband had retired, there was no justification  to  reduce  the
maintenance by 50%.  It is not a huge fortune that was showered on the  wife
that it deserved reduction.  It only reflects the  non-application  of  mind
and, therefore, we are unable to sustain the said order. - 2015 S.C. MSKLAW REPORTS

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