M SIDHIK MOULAVI Vs. NABEESA BEEVI

JUDGEMENT

(1.) The main question in this revision petition arising out of a proceeding under S.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 Mahomedan 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 S.488(1) of the Code of Criminal Procedure, and more so, in view of the decision of this Court in Areekkal Abdurahiman Musaliyar v. Neliyaparambath Ayissu (AIR 1962 Kerala 234), 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), has held that the woman must be a wife at the time of filing the application under S.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 S.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 KLT 857 ). In that case, the divorce came after the Sling 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 the first respondent was not a wife at the time of filing the petition, she is not entitled to maintenance under S.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 thereafter: 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 S.488 of the Code of Criminal Procedure.