RUKHSANA PARVIN MOHD Vs. MOHAMMAD HUSSAIN MOHAMMAD AKBAR

JUDGEMENT

(1.) This petition involves a question relating to the construction of section 127(3)(b) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "new Code").

(2.) The facts on which this question arises are not in dispute. The petitioner wife was married to respondent No. 1 husband on 5th February, 1968 and she was divorced by the husband on 7th April, 1974. The husband treating Rs. 50/- per month as proper amount of maintenance sent a sum of Rs. 150/- by insurance letter, being the total amount of maintenance due from him under the personal Muslim Law to the wife. He also sent a sum of Rs. 500/- which was the Mahr amount according to him, by money order. The wife, however, declined to accept this amount. She filed an application under section 125 of the new Code on 15th July, 1974. This application was contested by the husband, according to whom, the petitioner had quarrelled on 7th April, 1974 and she left the house voluntarily and took talak which was given by him on 8th April, 1974. A talaknama was produced by him. He claimed that in view of the provisions of section 127(3)(b) of the new Code he was not liable to pay any maintenance to the petitioner. The trying Magistrate took the view that the provision in section 127(3)(b) of the new Code was specifically made for Muslim women and that under that provision, the right of the Muslim women to claim maintenance came to an end as soon as Mahr amount and iddat amount are paid by the husband to the talaki. On facts the learned Magistrate found on opening the insurance letter that it contained Rs. 650/- that is Rs. 500/- as mahr amount and Rs. 150/- as payment towards iddat. It was further found that the petitioner had shown unwillingness to accept the said amount of Rs. 650/- even in Court. The amount was deposited in Court. The learned Magistrate, therefore took the view that the husband had satisfactorily proved that he had been offering the amount of Mahr and iddat but the applicant had been refusing it and in such a case, she was not entitled to claim separate maintenance. In doing so, the learned Magistrate had in view the provisions of section 127(3)(b) of the new Code.

(3.) The petitioner then filed a revision application in the City Sessions Court at Bombay. The Additional Sessions Judge who decided the revision application also confirmed the offered of the trying Magistrate that the case was covered by section 127 of the new Code. It was contended before the Additional Sessions Judge that at any rate, the wife was entitled to receive maintenance until the amount of Rs. 650/- was tendered to the wife on 5th July, 1975. The learned Judge, however, took the view that the wife had a grievance about the quantum of maintenance and that it was for the Court to decide the quantum of maintenance during the period of iddat. The learned Judge seems to have declined to take the view that Rs. 50/- per month was adequate by way of maintenance and he, therefore, remanded the case to the trying Magistrate for fixing the amount of maintenance after having earlier observed that the right to receive the maintenance continues until an unmarried divorced wife receives the amount due to her under the personal law or she remarries.