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.
INTERIM MAINTENANCE - COMPULSORY
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
