RISWANA BEGUM Vs. A MLV MOTIULLAH

JUDGEMENT

(1.) Revisional order of the Sessions Judge Cuttack setting aside the order of the Magistrate granting interim maintenance in favour of the Petitioner while the application under Section 125 of the Code of Criminal Procedure is pending, is being assailed- in this revision.

(2.) The parties are Muslims and the Petitioner is the wife of the opposite party. ' She filed an application under Section 125 of the Code of Criminal Procedure before the learned Magistrate and along with the said application she filed an application for interim maintenance. That application for inter-maintenance, was registered as criminal. Miscellaneous case No. 34/81 The opposite party filed an objection to the effect that the Petitioner is not entitled to interim maintenance. It was also stated in the objection that the Petitioner left the house of her husband of bar free will by executing a 'Khulanama' and relinquished her dower dues and future maintenance from the husband and therefore, the husband has divorced her and accordingly the wife is not entitled to any interim maintenance relying upon a decision of the Supreme Court in the case of Smt. Savitri v. Govind Singh Rawat, 1986 AIR(SC) 984 the Magistrate held that he has jurisdiction to award interim maintenance and talking into consideration the materials before him he awarded interim maintenance at the rate of Rs. 200/- per month till the disposal of the application tiled under Section 125 of the Code of Criminal Procedure. The husband carried a revision before the learned Sessions Judge. The learned Sessions Judge by the impugned order came to hold that in view of the provisions of Muslim Women (Protection, of Rights on Divorce) Act, 1986, the order of the Magistrate granting maintenance is not in conformity with law and therefore, be set aside the order granting maintenance. It is this order of the Sessions Judge, which is being impugned in the present revision.

(3.) The provisions of Section 125 of the Code of Criminal Procedure are independent of the personal law or any custom governing the parties and the said personal law or custom cannot be imported into Section 125 of the Code. The right to get maintenance under Section 125 of the Criminal Procedure is a distinct statutory right which the Legislature has recognised irrespective of the nationality or the creed of the parties. The only condition precedent is the existence of a conjugal relationship in the case of wife which will have to be ascertained with reference to the personal law of the parties. The provisions of Section 125 of the Code of Criminal Procedure are not superseded by personal or special law of the parties. In fact in the famous Shah Bano's case reported in Mohd. Ahmed Khan v. Shah Bano Begum and Ors., 1985 AIR(SC) 945 it was clearly stated by their Lordships that a divorced muslim woman, so long as she has not remarried is a wife for the purpose of Section 125 of the Code of Criminal Procedure and the statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her. The sole question for consideration' is whether the Muslim Womens (Protection of Rights an Divorce) Act. 1986 (Act 25 of 86) (hereinafter refilled to as the "Act") can be said to have made any change in law so as to exclude the jurisdiction of a Magistrate under Section 125 of the Code of Criminal Procedure or not. The. Act came into force on 19-5-1989. In the present case the marriage itself was solemnised after the Act coming into force that is, on 25-6-1986. The application under Section 125, Cr. P. C, was filed on 11-2-1987 and an application for interim maintenance was filed on 27-4-1987. The husband filed his objection on 23-6-1987 and the Magistrate granted interim maintenance by order dated 10.8-1987. The Act seeks to restore the Muslims personal law of husband's liability upto and for the period of Iddat and also retains the provisions of Section 125 of the Criminal Procedure. Code by making it optional on the choice at both parties and, therefore, the old orthodox view as well as the liberalised view expressed in Mohd. Ahmed Khan v. Shah Bano Begum and Ors., 1985 AIR(SC) 945 have been retained but with the difference was would be seen under Section 5 of the Act. In the statement of objects and reasons of the Act which was introduced in the Parliament on 19th February, 1986 it was stated ;