C.R.R. No.3056 of 2010

12th September, 2012

Petitioner Counsel: Mr. SOMOPRIYO CHOWDHURY
Respondent Counsel: Mr. MALAY BHATTACHARYYA

Cases Cited:
Shabana Bano Vs. Imran Khan, 2010 ALL MR (Cri) 278 (S.C.)=AIR 2010 SC 305 [Para 11,14,16]
Iqbal Bano Vs. State of U.P. & Anr., 2007 ALL SCR 1727=(2007) 3 SCC (Cri) 258 [Para 11,13]
Daniel Latifi & Anr. Vs. Union of India, 2001(4) ALL MR 829 (S.C.)=(2001) 7 SCC 740 [Para 11,12]

JUDGMENT

JUDGMENT :- This revision application arose out of judgment and order dated 6.8.2010 passed by the learned Additional Sessions Judge, 1st Court, Bankura in criminal revision no. 35 of 2010 thereby modifying the judgment and order dated 16.2.2010 passed by learned Judicial Magistrate, 6th Court, Bankura in Misc. Case no. 58 of 2008 under Section 125 of the Code of Criminal Procedure, 1973.

2. In the background of this revision the fact in gist is that the petitioner is the wife of the O.P. No. 2 and they were married according to the Islamic rights and rituals on 13.3.2005. After her marriage, the petitioner started residing with the O.P. and gave birth to a daughter who is a minor. The O.P. No. 2 used to torture the petitioner mentally and physically. Still the petitioner somehow put up with the same. On 6.1.2008, the petitioner was driven out from her matrimonial home by the O.P. No. 2 after pronouncing talaq thrice. Within one month from the date the petitioner was driven out from her matrimonial home, the O.P. No. 2 was remarried and he refused to maintain the petitioner. The talaq which was pronounced by the O.P. No. 2 was not in accordance with law. Although, the 'Din Mehr' and dowry amount were returned by the O.P. No. 2 but the same being extremely paltry the petitioner was brought down to the extent of starvation. She filed an application under Section 125 of the Code of Criminal Procedure praying for maintenance to the tune of Rs. 2000/- for herself and Rs. 1000/- for her daughter.

The o.p. no. 2 duly contested the case by filing written objection.

3. After considering the rival contentions for the parties and the materials on record, the learned Magistrate allowed maintenance amount of Rs. 600/- to the petitioner and Rs. 400/- to the minor child. Such order was assailed before the learned Sessions Judge, Bankura by the O.P. No. 2 under Section 397/399 of the Code of Criminal Procedure in criminal revision no. 35/2010 which was transferred to the court of learned Additional Sessions Judge, 1st Court, Bankura for disposal.

4. The learned Judge without considering the main issue modified the above noted order of the learned Magistrate to the extent that the petitioner is not entitled to any maintenance after the Iddat Period.

5. As such the order dated 6.8.2010 was inter alia challenged mainly on the following grounds.

6. The learned Judge held that the minor daughter is entitled to maintenance till she attains majority. The petitioner has been prejudiced with the observation of the learned Judge that the talaqi wife is not entitled to any maintenance after the Iddat Period as the same goes against all settled legal parameters specially when the factum of proper talaq is in question. The learned Judge by the impugned judgment practically throttled the survival of the petitioner by compelling her to seek maintenance by filing a separate application again.

7. Now, the point for consideration is if the impugned order calls for any interference by this Court under its revisional jurisdiction.

8. It was contended by the learned counsel for the petitioner that there is no evidence as to whether the talaq was pronounced according to law. Further, it was contended that still then the petitioner is entitled to get maintenance even after the period of Iddat.

9. None appeared on behalf of the State of West Bengal.

10. But the learned counsel for the O.P. No. 1 contended that there is nothing to find fault with the impugned order. The learned counsel for the O.P. also drew my attention to the observation of the learned court below at page 6 of the judgment dated 6.8.2010.

11. In support of his contention learned counsel for the petitioner cited before me the decisions as reported in AIR 2010 SC 305 : [2010 ALL MR (Cri) 278 (S.C.)]; (2007) 3 SCC (Cri) 258 : [2007 ALL SCR 1727] [Iqbal Bano vs. State of U.P. & Anr.] and (2001) 7 SCC 740 : [2001(4) ALL MR 829 (S.C.)] [Daniel Latifi & Anr. vs. Union of India] and submitted that the learned Judge failed to consider the position of law settled by the Hon'ble Apex Court inasmuch as a petition under Section 125 of the Code of Criminal Procedure can be treated as an application under Section 3/4 of the said Act. Further, it was argued that the muslim wife cannot be shut from claiming maintenance under Section 125 of Code of Criminal Procedure.

12. The learned counsel for the petitioner submitted written notes of argument which has been made part of the record. It was stated that the learned Additional Sessions Judge totally disregarded the decisions of the Hon'ble Apex Court and acted as if he is a court of record and tried to distinguish the said decisions. In Danial Latifi's case, [2001(4) ALL MR 829 (S.C.)] (supra) it was propounded by the Hon'ble Apex Court that reasonable and fair provision and maintenance under Section 3(i)(a) of the said Act is not limited for the Iddat Period. It extends for the entire life of the divorced wife unless she remarries. Further, it was propounded that a muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance. A muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(i)(a) of the said Act. Liability of a muslim husband to his divorced wife arising under Section 3(i)(a) of the said Act to pay maintenance is not confined to the iddat period. A divorced muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death, according to muslim law, from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the learned Magistrate may direct the State Wakf Board established under the said Act to pay such maintenance.

13. It was also held in (2007) 3 SCC (Cri) 258 : [2007 ALL SCR 1727] (supra) that the liability of a muslim husband to his divorced wife under Section 3(i)(a) of the said Act is not confined to Iddat Period and he is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes maintenance as well. The future provision must be made within the Iddat Period in terms of Section 3(i)(a) of the said Act.

14. From the other decision, reported in AIR 2010 SC 305 : [2010 ALL MR (Cri) 278 (S.C.)] (supra) the Hon'ble Court propounded while interpreting Section 125 of the Code of Criminal Procedure vis-à-vis Sections 4 and 5 of the said Act that petition filed by divorced muslim woman under Code of Criminal Procedure against her husband is maintainable after the Iddat Period as long as she does not remarry. The amount of maintenance to be awarded not to be restricted for Iddat Period only. Therefore, it is abundantly clear even on plain reading of the aforesaid decisions that beyond the Iddat Period the divorced muslim woman can seek for maintenance from her erstwhile husband in appropriate cases, if she is unable to maintain herself.

15. Such decisions were cited before the learned Magistrate when the learned Magistrate by his order dated 16.2.2010 discussed at length the law laid down by the Hon'ble Apex Court and passed a speaking order for maintenance of Rs. 600/- to wife and Rs. 400/- to minor child after considering the income etc. of the husband. But by the impugned order dated 6.8.2010, the learned Additional District & Sessions Judge, Bankura dwelt upon certain other aspects bypassing the spirit of the decisions of Hon'ble Apex Court and he referred to some other judgments in his order and attempted to distinguish the laws laid down therein from the laws laid down in the aforesaid decisions of the Hon'ble Apex Court which he ought not to have done because the decisions of the Hon'ble Apex Court is binding on all courts. He held that since the Apex Court upheld the validity of the said Act, so, according to him, the muslim woman is not entitled to get maintenance beyond the Iddat Period and he added that she has relief under Sections 3 and 4 of the said Act. He referred to some passages of the holy Koran Sharif with reference to hedaya (a work on the Sunni law) and Imamia (a work on the Shia law) and also principles of Mohammedan law but I think that the learned court below failed to go deep into the purport of the Koranic verses as well as the interpretations made by the Hon'ble Apex Court.

16. It is well-nigh time to insist upon strict proof of valid talaq. Here we are concerned with 'talaqi' wives who are unable to maintain themselves. Section 3(i)(a) of the Muslim Woman (Protection of Rights on Divorce) Act, 1986 reads as follows:

Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to -

(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband ....

The words "fair provision and maintenance to be made and paid to her within the Iddat Period by her former husband" are extremely significant. Nowhere it is stipulated in Section 3(i)(a) of the Muslim Woman (Protection) of Rights on Divorce Act, 1986 (hereinafter referred to as the said Act) or elsewhere in the Act that such provision and maintenance cannot be made and paid even after Iddat Period. To make provision within the Iddat period is a must although. The Word 'within' is not synonym of word 'for'. By no means the word 'within' can be taken as an alternative of word 'for'. Both are significantly distinct and mutually exclusive. The talaqi wife is in the state of mental shock due to pronouncement of divorce and her life breaks into pieces like glass. She is thrown to the street within fraction of a second. Her conjugal life evaporates. Her first consideration is how and where to stay and survive.

Section 3(i)(a) of the said Act is an answer to her concern. In order to give her instance solace in the form of 'provision' and 'maintenance' the former husband has been put to a knot to make arrangement for her entire future 'provision' and 'maintenance' till her last breath or remarriage whichever is earlier. This is a binding on the husband who in the name of dissolution of marriage should not be let loose to throw his talaqi wife to the dustbin like a used earthen tea cup. The words 'provision' and 'maintenance' are though apparently separate ones but yet very much correlated. According to the dictionary meaning, 'provision' means and includes 'to supply food etc.' whereas 'maintenance' means and includes 'ways and means for meeting her day-to-day expenses for food, clothing and all that are necessary for survival of her sole with dignity'. So, 'provision' includes 'maintenance' also. This being so, making 'provision' within the Iddat Period does not by no stretch of imagination go to suggest that such provision shall be made only for three months of Iddat Period. Nowhere in the said Act it has been spelt so. Such 'provision' was intended by the legislators in their wisdom to stretch upto the lifetime of the victim woman or upto the point she gets remarried whichever is earlier. 'Making provision' as has been held by many other Hon'ble Court, means and includes building a residential house, setting up of a shop or business, purchase of some other property to fetch income for survival of the talaqi wife and so on. This being the position the husband is to maintain his wife even after the Iddat Period as held in AIR 2010 SC 305 : [2010 ALL MR (Cri) 278 (S.C.)] (supra).

17. Next comes Section 4 of the said Act which reads as follows:

"Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives ...."

Section 4 has a deep root inside Section 3 of the said Act for reasons given hereunder. No word in any Act is either superfluous or meaningless and on a plain reading nothing should be construed to the effect that the legislature intended something which is meaningless or useless. No doubt Section 3(i)(a) states that a reasonable and fair provision of maintenance is to be made and paid to the wife within the Iddat period by her former husband. But though there is no express provision mentioned therein that the talaqi wife shall not be permitted to seek for maintenance after Iddat Period from her former husband, such non-mentioning does not disentitle the former wife to seek for maintenance from her former husband notwithstanding the fact that Section 4 stipulates the divorcee to approach her relatives for maintenance or in their failure to pay to approach the Wakf Board for maintenance. Section 4 appears to be an additional facility available to the divorcee. Either in Section 3(i)(a) or Section 4 of the said Act it has not been clearly spelt out that the divorcee shall not be permitted to ask for maintenance from her former husband after Iddat Period even when the former husband did not make any provision during Iddat Period.

18. The word 'provision' has further meaning. According to Section 3(i)(a) of the said Act it has to be made within Iddat Period. This means that it has to be done within 3 months for the future time beyond iddat period. For example, if a man makes provision on the 29th day of the 3rd Month; in that event he will be required to make provision for only 1(one) day during Iddat Period. Will that be the compliance of Section 3(i)(a) of the said Act? The legislature perhaps did not intend to do so. Making provision for 1(one) day will not absolve the husband of his liability. What was intended is for the future time to come till the divorcee remarriages. And since 'provision' includes 'maintenance'; the husband is duty bound to make and pay future maintenance beyond iddat period till her remarriage or so.

19. Further there may arise the following situation. If a divorcee has no relation at all in any place and if there is no Wakf Board in any particular State; in that event whether the divorcee will be debarred from asking for maintenance from her erstwhile husband? Perhaps not. Because no lapse goes unremedied.

20. Section 4 relates only to the question of maintenance. So, after the Iddat Period, if any divorcee seeks for any order for making 'provision' there may not arise any bar, and if that is so, the 'provision' will include maintenance. Though, the husband is to make future and fair provision and pay maintenance within the Iddat Period but if he does not do so, then the divorcee even can maintain a petition seeking for maintenance from her former husband after Iddat period.

21. Therefore, the criminal revision succeeds.

The order dated 6.8.2010 passed by the learned Additional Sessions Judge, 1st Court, Bankura in CR No. 35 of 2010 is set aside and the order dated 16.2.2010 of learned J.M., 6th Court, Bankura is modified to the extent that the petitioner shall be paid Rs. 1000/- and Rs. 600/- p.m. respectively by the O.P.

The criminal revision is thus disposed of.

I pass no order as to costs.

Urgent Photostat certified copies, if applied for, be supplied according to rules.

Revision allowed.