JAITUNBI MUBARAK SHAIKH Vs. MUBARAT FAKRUDDIN SHAIKH

JUDGEMENT

(1.) THIS Criminal Writ Petition is filed by a divorced muslim woman. In view of the reference to a Division Bench by T. K. Chandrasekhara Das, J. the following questions of law arise for our determination :- (1)In proceedings for maintenance instituted by a muslim wife, if a muslim husband makes a plea in his written statement that his marriage had been dissolved at an earlier date in the talak form, even assuming that the fact of such dissolution at an earlier date is not proved, whether the filing of he written statement containing such a plea of divorce in the talak - form amounts to the dissolution of marriage under the Muslim personal Law from the date on which such a statement was made ? (2)Whether the law laid down by this Court in Chandbi Ex. w/o Badesha Mujawr Vs. Badesha S/o Balwant Mujawar reported in A. I. R. 1961, Bombay 121 still holds good or whether it requires reconsideration in view of the two subsequent decisions of this Court in :- (i)Mehaabbi w/o Sk. Sikandar and another Vs. Sk. Sikandar S/o. Sk. Mohd. and another reported in 1995 (3), Bombay Cases Reporter, 433; and (ii)Shaikh Mobin s/o Shaikh Chand Maharashtra and another, reported in 1996 (1), M. L. J. , 810. (3)What is the extent of the liability of a muslim husband under clause (a) of sub-section (1) of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. (For short, the 1986 Act) ? In other words, whether the liability to make a reasonable and fair provision and pay maintenance is only restricted to the iddat period or whether it extends beyond the iddat period ? (4)What is the nature of the right given to a divorced muslim woman who has not re-married and who is not able to maintain herself after the iddat period having regard to the provisions of Section 4 of the 1986 Act ? We have heard the learned Counsel Mr. Sonwalkar for the divorced wife: Mr. Ketkar for the husband and Miss Kamath, A. P. P. for the State. In order to answer the above questions, a few relevant facts may be stated.

(2.) THE petitioner-wife had filed Misc. Application No.61 of 1980 under section 125 of the Code of Criminal Procedure, 1973 (for short, 'code') for maintenance against respondent No.1 husband. By an Order dated 26th June 1981 the Magistrate fixed the amount of maintenance at Rs. 60/- p. m. On the 6th October 1986 the wife initiated the present proceedings by filing Maintenance Application No.297 of 1986 under Sec. 127 of the Code for enhancement of maintenance claiming that she was entitled to Rs. 500/- per month. In the application for enhancement, the wife contended that she was ill-treated by her husband and was driven out of the matrimonial home, pursuant to which she had made an application for maintenance. However, having regard to the general inflationary tendencies; it was not possible for her to maintain herself in the meagre sum of Rs. 60/- per month. She was unwell but was not able to afford the medicines needed by her. She alleged that her husband had improved his financial condition. He had secured a permanent job in the Fire Brigade of Baramati Municipal Council and was earning Rs. 1000/- to Rs. 1200/- per month. He was also trading in cattle in Baramati and Phaltan markets and was earning Rs. 500/- to Rs. 700/- per month. THE wife, therefore, claimed that the amount of Rs. 60/- should be enhanced to Rs. 500/- per month.

(3.) BEING aggrieved by the said Order, the husband preferred Criminal Revision Application No.220 of 1988 in the Sessions Court, at Satara. The learned Sessions Judge came to the conclusion that though the plea of talak given on 29-10-1987, as pleaded by the husband in his written statement filed on 11-11-1987, was not proved on evidence, still in view of the decision of this Court in Chandbi's case - A. I. R. 1961, Bombay, 121 (supra), the declaration of talak would, at any rate, be effective from the date of filing of the written statement viz. 11-11-1987. Hence, he held that the wife would not be entitled to maintenance from 11-11-87. It was held that after 11-11-1987 the divorced wife would not be able to apply under section 125 or under section 127 of the Code in view of the provisions of the 1986 Act. In the result, the Sessions Court partly allowed the Revision of the husband, restricting his liability to pay maintenance at the rate of Rs. 300/- only till 10th November, 1987. It is this order which is challenged before us by the wife.