MOHMAD HANIF ABDULLA KADAR Vs. MEHRUNISHA HAPUMIYA SHAIKH

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India, the Petitioner-husband challenges the order passed by the learned J.M.F.C, Bharuch, on 29-12-1994 in Misc. Criminal Application No. 395 of 1992 filed under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, by which the Magistrate awarded an amount of Rs. 2 lacs under Section 3(1) of the said Act, with an amount of Rs. 127-50 ps. being the amount of Mahr, from the Petitioner-husband of Respondent No. 1, Mehrunisha.

(2.) The background of the case of the Petitioner needs special mention here. The Petitioner was married to Respondent No. 1 in the year 1987 according to Muslim rites. Daughter Roshanbanu was born from the said wedlock in the year 1989 and the Petitioner divorced Respondent No. 1 in the year 1989 and contracted marriage with one Mumtazbanu. Respondent No. 1 preferred Misc. Criminal Application No. 227 of 1989 claiming maintenance under Section 125 of the Code of Criminal Procedure and Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 ("Act of 1986" for short). However, the prayer was for the amount under the Act of 1986. In that petition, the parties agreed as contemplated under Section 5 of the Act of 1986 to resort to the provisions contained in Section 125 Code of Criminal Procedure and the amount of maintenance for both, Respondent No. 1 and minor daughter Roshanbanu, was fixed at Rs. 175/- and Rs. 75/- per month respectively.

(3.) Learned Advocate Mr. Kharadi for the Petitioner submitted that when Respondent No. 1 preferred application under Section 3 of the Act of 1986, and thereafter, by mutual agreement as contemplated under Section 5 of the said Act, agreed to be bound by the provisions contained in Sections 125 to 128 of Code of Criminal Procedure, Respondent No. 1 could not have then preferred another application under Section 3 of the Act of 1986. The trial Court ought not to have entertained this application being barred and the Sessions Court also ought not to have confirmed the order. According to Mr. Kharadi, Act of 1986, particularly Section 5, gives an option to the parties to resort to the provisions contained in the Code of Criminal Procedure. But, once that is resorted to, it does not give the party again to fall back on the provisions of the Act of 1986. These aspects are not considered by the trial Court nor by the Sessions Court, and amount is awarded, and thereby, injustice is caused to the Petitioner. The second fold argument of Mr. Kharadi was that Section 3 would apply only where husband fails to make a reasonable and fair provision and maintenance. Here, the husband has agreed to pay maintenance of Rs. 500/- per month to Respondent No. 1 and Rs. 175/- per month for minor daughter. Therefore also, the application under Section 3 of the Act of 1986 ought not to have been entertained.