Criminal Revision Application No. 16 of 2002

3rd March, 2005

Petitioner Counsel: Mr. A. D. VYAWAHARE
Respondent Counsel: Mr. B. N. MOHTA,Mr. DEEPAK THAKRE

Cases Cited:
Sabra Shamim Vs. Maqsood Ansari, (2004)9 SCC 616 [Para 4,9]
Najmunbee Vs. Sk. Sikandar, 2003 ALL MR (Cri) 1846=2003(2) Mh.L.J. 958 [Para 4,8]
Danial Latifi Vs. Union of India, 2001(4) ALL MR 829 (S.C.)=2001(7) SCC 740 [Para 8,9]
Dagdu Chotu Pathan Vs. Rahimbi Dagdu Pathan, 2002(3) ALL MR 265 (F.B.)=2002(3) Mh.L.J. 602 [Para 8]

JUDGMENT

JUDGMENT : - This revision is directed against the judgment and order dated 30-10-2001 passed by the learned 3rd Additional Sessions Judge in Criminal Revision No.163 of 1996 whereby the Revision was allowed and respondent no.1/wife was granted maintenance at the rate of Rs.500/- per month from 01-08-1994, i.e. the date of the application by setting aside the order dated 28-12-1995 passed by the learned J.M.F.C. in Misc. Criminal Appln. No.106 of 1994, whereby the claim of the wife for maintenance was rejected.

2. Brief facts are required to be stated as under:

The marriage between petitioner and respondent no.1 was solemnized on 24-10-1992 and soon after the marriage she joined the matrimonial home. It is contended that she was being ill-treated in the matrimonial home and her husband had made her life miserable because of which she had to take shelter at the house of her parents in February, 1993 because she was suffering from long illness. It is contended that she was unable to maintain herself and her husband having sufficient means refused and neglected to maintain her and therefore she had filed application under Section 125 of the Code of Criminal Procedure claiming maintenance. The learned Magistrate on consideration of the evidence had rejected the claim of the wife by his order dated 28-12-1995 on the ground that she has failed to establish that she was being treated with cruelty in the matrimonial home and her husband had refused and neglected to maintain her. Being aggrieved by this order, the wife carried revision before the Sessions Judge. The learned Additional Sessions Judge by his order dated 30-10-2001 set aside the order passed by the learned Magistrate and allowed the criminal revision and granted maintenance at the rate of Rs.500/- per month to the respondent/wife. This judgment and order passed by the learned Additional Sessions Judge is under challenge in this revision.

3. Mr. Vyawahare, learned counsel, for the petitioner/husband contended that the learned Sessions Judge has committed an error in recording the finding that the wife is entitled to claim maintenance in absence of any evidence showing refusal and neglect on the part of the husband. He contended that the wife has clearly admitted in the cross-examination that she was not being ill-treated in the matrimonial home and, therefore, the cruelty has not been established. He contended that the wife had withdrawn from the company of her husband on her own accord in February, 1993 and is living separate from her husband without any reason. He contended that the husband had made efforts to bring back the wife in the matrimonial home but his efforts were in vain. He contended that by virtue of sub-section 4 of Section 125 of the Code of Criminal Procedure, since the wife was living seperately on her own accord without any sufficient reason, she is not entitled to claim maintenance. He contended that during the pendency of this petition, the husband has pronounced Talaq and, therefore, the wife has remedy under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and she is not entitled to the maintenance under section 125 of the Code of Criminal Procedure. Therefore, the impugned order passed by the learned Additional Sessions Judge granting maintenance to the wife is not sustainable in law and is liable to be set aside.

4. Mr. Mohta, learned counsel, for the respondent/wife supports the judgment and order passed by the learned Additional Sessions Judge. He contended that the spouses are living separately from each other from February, 1993 and the husband has refused and neglected to maintain his wife who is unable to maintain herself and therefore she was required to file the application claiming maintenance under Section 125 of the Code of Criminal Procedure on 01-08-1994. He contended that the husband did not make any provision for the maintenance of his wife during that period. He contended that the contention that the wife is not entitled to claim maintenance in view of the provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was not raised before both the Courts below and this contention is liable to be rejected in view of the decision of the Supreme Court in Sabra Shamim Vs. Maqsood Ansari - (2004)9 SCC 616 and also the decision of this Court in Najmunbee Vs. Sk. Sikandar - 2003(2) Mh.L.J. 958 : [2003 ALL MR (Cri) 1846].

5. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that the marriage between the petitioner and the respondent was solemnized as per Mohammaden Law on 24-10-1992 and that the wife had left the matrimonial home in the month of February, 1993 and since then she was living with her parents. It is necessary to reproduce sub-section (4) of Section 125 of the Code of Criminal Procedure which contemplates as under:

"Order for maintenance of wives, children and parents

(1) ....

(2) ....

(3) ....

(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reasons, she refuses to live with her husband, or if they are living separately by mutual consent."

6. The learned counsel for the husband contended that the wife has refused to live with her husband and she had withdrawn from the company of her husband on her own accord in the month of February, 1993 without having sufficient reasons and, therefore, by virtue of the aforesaid law, she is not entitled to claim maintenance. This Court does not find any force in this submission because it is a fact that the wife is living separately but not by mutual consent or without sufficient reasons since February, 1993. It is undisputed position that the wife had taken shelter at her parents' house since February, 1993. It is also a fact that the husband did not make any provision for her maintenance though he is said to have made attempts to bring his wife back in the matrimonial home. Refusal and neglect is patent on record and lies in the fact that since the time the wife left the matrimonial home in February, 1993, the husband has been making no contribution towards her maintenance and, therefore, she was compelled to file an application under Section 125 of the Code of Criminal Procedure.

7. The next contention of the learned counsel for the husband that the wife is not entitled to claim maintenance in view of the provision of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is concerned, the same cannot be accepted for the reason that the said contention was not taken either before the Magistrate at the trial stage or before the Sessions Judge when he was exercising revisional jurisdiction. The husband is said to have given Talaq to his wife during the pendency of these proceedings, but only pronouncement of Talaq would be quite insufficient to put an end to the marrital tie.

8. This court in the case of Najmunbee - 2003(2) Mh.L.J. 958 : [2003 ALL MR (Cri) 1846], cited supra, has considered and followed the decision of Supreme Court in Danial Latifi Vs. Union of India - 2001(7) SCC 740 : [2001(4) ALL MR 829 (S.C.)] and also the Full Bench decision of this Court in Dagdu Chotu Pathan Vs. Rahimbi Dagdu Pathan - 2002(3) Mh.L.J. 602 : [2002(3) ALL MR 265] wherein the question as to whether a Muslim husband has a right to divorce his wife without reasons and at his mere whims and caprice and whether Muslim law mandates pre-divorce reconciliation between the parties through appointment of two Arbitrators, who would act as Judges, was considered and the Full Bench of this Court in the case of Dagdu Chotu Pathan, held as under:

"A divorce by the husband is Talaq and it has its oral as well as written forms. The oral form of Talaq can be effected in three modes viz. Talaq-e-Ahsan, Talaq-e-Hasan, Talaq-ul-Biddat or Talaq-e-Badal. The first two forms are conditioned and they are accepted to be more civilized but while resorting to any of these two forms there are conditions precedent and it is not that the husband is at his free will to resort to any of these modes at any time and without assigning any reasons. If the husband feels that his wife does not care for him, she is incompatible, she does not listen to him, she does not love him, she refuses to cohabit with him, she engages in cruel behaviour, she is unfaithful or for any other reason, he has the right to give Talaq to his wife but by following certain procedure. Firstly, he has to make it known to his wife about any of these reasons and she must be given time to change her behaviour. If by his direct conversation/persuasions she does not change her behaviour, the husband has to resort to the process of conciliation by informing to her father or any other parental relations. Two arbitrators, one from wife and one from the husband are required to be appointed and it shall be the duty of the Arbiters to bring in a settlement between the parties so that they live together happily and in spite of these efforts having been made if the discord still persists to an irreparable level there is no alternative but to separate and it is at this stage that the husband has the right to give Talaq to his wife. The stage of conciliation with the intervention of the Arbiters is a condition precedent for effecting Talaq either in Ahsan form or Hasan form. It will be seen that in all disputes between the husband and the wife the judges are to be appointed from the respective people of the two parties. These judges are required first to try to conciliate the parties to each other failing which divorce is to be effected. Therefore, though it is the husband, who pronounces the divorce, he is as much bound by the decision of the judges as is the wife. This shows that the husband cannot repudiate the marriage at his will. The case must be first referred to two judges and their decision is binding. Talaq must be for reasonable cause and be preceded by attempts of reconciliation between the husband and the wife by the arbitrators, one from the wife's family and the other from the husband's. If the attempts failed, Talaq must be effected. In other words, an attempt at reconciliation by two relations; one each of the parties, is an essential condition precedent to Talaq".

9. The Supreme Court in the case of Sabra Shamim Vs. Maqsood Ansari - (2004)9 SCC 616, cited supra, held that "the High Court proceeded on a premise that the Muslim Women (Protection of Rights on Divorce) Act, 1986 provides that a divorced wife will be entitled to maintenance till the Iddat period only and not any further and on that basis set aside the order made by the Principal Judge, Family Court, in Misc. Case No.40 of 1991 (arising out of MP Case No.19 of 1982). This proposition of law on which the High Court proceeded is plainly contrary to the decision of this Court in Danial Latifi Vs. Union of India - (2001)7 SCC 740 : [2001(4) ALL MR 829 (S.C.)]. Therefore, the order made by the High Court is set aside and the order made by the Family Court stands restored. The appeal is allowed accordingly."

10. In view of the aforesaid settled position of law, it is not possible to accept the contention of the learned counsel for the husband that since Talaq has been pronounced by the husband during the pendency of this petition, the respondent no.1/wife would not be entitled to claim maintenance in view of the provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

11. In the result, for the reasons mentioned above, this Court does not find any merit in this revision and no case has been made out for interference into the impugned judgment and order passed by the learned Additional Sessions Judge granting maintenance to the respondent no.1/wife under section 125 of the Code of Criminal Procedure. Consequently, this revision is dismissed with costs which are quantified to the tune of Rs.2,000/- which has already been deposited by the husband during the pendency of this petition in this Court and withdrawn by the wife. The applicant/husband is directed to deposit all the arrears of maintenance till date within four weeks in this Court and the wife shall be entitled to withdraw the same.

Revision dismissed.