RASHIDA KHANUM Vs. SK SALIM

JUDGEMENT

(1.) THE question raised in this appeal is whether learned Judge, Family Court should have dealt with the proceeding as if it is one under Section 125 of the Code of Criminal Procedure, 1973 (in short, the 'Code)'.

(2.) PROVISIONS contained in Sections 125 to 128 of the Code would have no application, and proceeding at the instance of a divorced wife would not be maintainable, except in cases covered by Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 in short, the 'Act'). Section 3(1)(a) of the Act envisages making of reasonable and fair provision and payment of maintenance to the divorced wife commensurable with the period of Iddat. A contrary view would defeat the purpose for which the legislation is made. Provisions contained in Section 4 cast Mobility on the relatives or the Wakf Board, as the case may be, for payment of maintenance to the divorced woman, if she is not re -married or is unable to maintain herself after the Iddat period. It fortifies the view that the liability to pay maintenance does not extend beyond the period of Iddat. In view of what has been stated in Section 5, if the husband and wife exercised their option in the manner provided, they would be governed by provisions contained in Sections 125 to 128 of the Code, and Section 7 of the Act. Similar view was taken by this Court in Criminal Revision No. 623 of 1988 disposed of on 13 -11 -1991, in Munat Baig v. Sakatun Bibi : (1992)5 OCR 362, and in Riswana Begum v. Mly. Motiulla : (1992) 5 OCR 703. Similar view has also been taken by Andhra Pradesh High Court in Usman Khan Banamani v. Fathimunnisa Begum and Ors. : AIR 1990 A. P. 225, by the Patna High Court in Md. Yunus v. Bibi Phenkani alias Tasrun Nisa (1987) 2 Crimes 241 ; and by the Rajasthan High Court in Abid Ali v. Mst. Raisa Begum: (1986) 1 Raj. L.R. 104. A contrary view expressed by the Gujarat High Court in Arab Ahemadhia Abdulla etc. v. Arab Bali Mohmona Saivadbhai and Ors.) : AIR 1938 Guj. 141 does not reflect true intention of the legislature, as even a bare reading of the provisions would show. A combined and harmonious reading of provisions of Sections 3 to 7 of the Act clearly demonstrates that the general object is to bring law of maintenance payable in consonance with the principles of Muslim Law, and therefore, Sections 125 to 128 of the Code will have no application, unless option of parties in terms of Section 5 of the Act is exercised. Liability of the husband is limited for and during the period of Iddat. Tyabji's Muslim aw (4th Edition, Pages 268 -69) states the position as follows :

(3.) PROVISIONS of Section 125 of the Code would be applicable to the case of a divorced Muslim woman only if both parties exercise their options at the first hearing of the application under Section 3(2) of the Act, and not in any other case. Therefore, the learned Judge, Family Court was justified in holding that provisions of Section 125 have no application and the application has rightly been treated as one under Section 3 of the Act.