IN THE HIGH COURT OF PATNA Decided On: 02.07.1999 Appellants: Ibrar Alam Vs.

Respondent: The State of Bihar an Nooraisha !hatoon "is#osition$ Application Dismissed %&slim 'omen (Prote)tion of Ri*hts on "i+or)e, A)t- ./01 2 Preamble- Se)tions 3 to 422 Criminal Pro)e &re Co e- ./43- Se)tions .5622%&slim 'omen22%aintenan)e &n er Se)tion 3 of A)t of ./01 or Se)tion .56 of A)t of ./4322Pro+ision of maintenan)e &n er the Co e of ./43 7as in e#en ent of #ersonal la7 of #arties22On)e it 7as #ro+e that a m&slim 7oman has been i+or)e in a))or an)e 7ith la7- her ri*ht to )laim maintenan)e &n er Se)tion .56 of the Co e )eases- an her )ase 7as to be *o+erne b8 #ro+isions of A)t of ./0122B&t #rior to i+or)e- her )laim for maintenan)e in )ase of ref&sal or ne*le)t b8 h&sban 7as *o+erne b8 Se)tion .56 of the Co e for the reason that before i+or)e- she 7as 7ife of m&slim h&sban - an he 7as liable to #a8 maintenan)e to his 7ife in )ase of f&lfilments of )on itions as mentione &n er Se)tion .56 of the Co e22Petitioner2h&sban in his sho72)a&se himself state that he 7as rea 8 to 9ee# his 7ife22Both Co&rts belo7 ha+e ri*htl8 re:e)te )laim of i+or)e set&# b8 #etitioner22Hel - no )ase for interferen)e 7ith the fin in*s of %a*istrate that the h&sban has faile to #ro+e i+or)e- 7as ma e o&t22Sai fin in* has been &#hel in re+ision22A##li)ation b8 #etitioner2h&sban )hallen*in* or er for #a8ment of maintenan)e #asse &n er Se)tion .56 of the Co e in fa+o&r of his 7ife2o##osite #art8 7as liable to be ismisse . ;U"G%ENT 1. The petitioner has challenged the order for payment of maintenance passed under ection 12! of the "ode of "riminal #rocedure $hereinafter referred to as the "ode% in fa&or of his 'ife opposite party. 2. The petitioner is aggrie&ed (y the order dated 19.).92 passed (y the *udicial +agistrate 1st "lass, -aya . 'here(y the petitioner of the said case has (een directed to pay maintenance of Rs. .00/0 per month to the 'ife opposite party 1ooraisha 2hatoon from 27.9.39, the date of filing of the application and the order dated 1)th *anuary, 1994 passed in "r. Re&. 1o. 130/92 dismissing the re&ision application against the said order. 4. The facts gi&ing rise to the present application are that opposite party 1ooraisha 2hatoon 'as married 'ith the petitioner on ).1.34. At the time of marriage Rs. 2!,000/0 'as spent to fulfil the demand of do'ry made (y the petitioner. After marriage she 'ent to her hus(and5s house. Thereafter, she 'ent to "alcutta 'here her hus(and 'as employed. he (ecame pregnant and ga&e (irth to a female child at her mother5s place. Thereafter, her hus(and and in la' demanded

Rs. 2!,000/0 and 'hen her mother sho'ed ina(ility to pay the amount she 'as (eing neglected and tortured in different 'ays and her hus(and threatened to marry 'ith another girl as a result of 'hich she filed a petitioner under ection 12! of the "ode claiming Rs. .00/0 as maintenance as her hus(and has sufficient means to pay the same. .. The petitioner appeared in the "ourt (elo' and filed sho' cause 'herein he did not deny the factum of marriage (ut deny the other assertions and allegations made in the petition. !. Opposite party 1ooraisha 2hatoon e6amined three 'itnesses including herself in support of her case. 7er hus(and $petitioner% also e6amined t'o 'itnesses (ut did not e6amine himself as a 'itness. At the fag end of the case a petition 'as filed on his (ehalf (y his (rother that he has di&orced his 'ife and as such she is not entitled to maintenance in &ie' of the pro&isions of +uslim 8omen $#rotection of Rights on Di&orce% Act, 193) $hereinafter referred to as the Act%. The learned +agistrate re9ected the aforesaid petition (y order dated 20...92. The ground for re9ection of the said prayer 'as that during the e6amination of the 'itnesses no 'hisper 'as made on (ehalf of the hus(and petitioner that he has gi&en di&orce. This apart the petition filed in the "ourt 'as neither signed (y the hus(and petitioner nor (y any authorised ad&ocate. The petitioner preferred a "r. Re&. 1o. 130/92 against the said order 'hich 'as heard and dismissed (y the essions *udge on 19.!.92 and thereafter the impugned order has (een passed (y the learned +agistrate 'hich has (een upheld in re&ision. :oth the original "ourt as 'ell as the re&isional "ourt did not accept the case of the petitioner that he has di&orced his 'ife opposite party and ordered for payment of maintenance, as stated a(o&e. ). ;earned "ounsel appearing on (ehalf of the hus(and petitioner su(mitted that as the petitioner has di&orced his 'ife the proceeding under ection 12! of the "ode is not maintaina(le and according the direction issued for payment of the maintenance under the said section is &itiated in la'. The case should ha&e (een considered in terms of the pro&isions of the Act and the opposite party is only entitled to the maintenance for the period of <ddat from her hus(and in terms of the pro&isions contained under ection 4 of the Act. 7. The "ounsel for the opposite party su(mitted that the proceeding under ection 12! of the "ode 'as maintaina(le for maintenance e&en (y the di&orced 'ife of a muslirn in case of refusal or neglected (y the hus(and and. her right to claim maintenance under ection 12! of the "ode is not ta=en a'ay on curtailed (y the pro&ision of the Act. 3. Thus, the >uestion for determination is as to 'hether an application under ection 12! of the "ode (y a di&orced 'ife for maintenance in case of refusal or neglect (y her hus(and go&erned (y muslim la' is maintaina(le after enactment of the Act or not. 9. ection !4) of the oldest "ode contained a pro&ision for maintenance of 'ife and children in case of neglect or refusal (y the hus(and and father respecti&ely, This pro&ision 'as made to compel the hus(and and father to maintain 'ith a &ie' to pre&ent &agrancy and destitution. ection .33 of 1993 "ode also contained the same pro&ision. ?nder the said section also in case of refusal or neglect (y the hus(and his 'ife or his legitimate or illegitimate child 'ho are una(le to maintain them sel&es, could claim maintenance. There 'as no pro&ision under the old "ode for payment of maintenance to the di&orced 'ife or parents. The "ode of 1974 for the first

time contained a pro&ision for maintenance of parents and di&orced 'ife. The orders passed under the "ode are su(9ect to final ad9udication that may (e made (y a competent "i&il "ourt determining the rights of the party 'ith regard to the payment of maintenance. 10. The pro&ision of maintenance under the "ode 'as independent of personal la' of the parties. The only re>uirement that is to (e pro&ed in case of payment of maintenance to the 'ife or the di&orced, 'ife is e6istence of con9ugal relationship 'hich has to (e determined 'ith reference to the personal la' of the parties (eyond this the personal la' has no role to play so far the >uestion of payment of maintenance is concerned. 11. The >uestion as to 'hether the di&orced 'ife of a muslim hus(and is entitled to maintenance under ection 12! of the "ode or not till she is remarried or her claim of maintenance is go&erned (y personal la' came for consideration (efore the Ape6 "ourt in the case of +ohd. Ahmad 2han &. hah :ano :egum $popularly =no'n as hah(ano case% +A1?/ "/019./193! : 193!"ri;*37! , 'herein the Ape6 "ourt held that in &ie' of "lause $(% of the @6planation to ection 12!$1% 'hich defines 5'ife5 as including a di&orced 'ife, di&orced 'ife of the muslim is also include in the said definition. The case of di&orced muslim 'omen is co&ered (y ection 12! of the "ode so long as she has not remarried. he is a 'ife for the purpose of ection 12! of the "ode and the statutory right a&aila(le to her under that section is unaffected (y the personal la' applica(le to her. <t 'as further held that if the di&orced 'ife is a(le to maintain herself the hus(and5s lia(ility to pro&ide maintenance for her ceases 'ith the e6piration of the period of <ddat. <f she is una(le to maintain herself, she is entitled to ta=e recourse to ection 12! of the "ode. <n other 'ords, there is no conflict (et'een the pro&isions of ection 12! of the "ode and those of the +uslim #ersonal ;a' on the >uestion of the +uslim 7us(and5s o(ligation to pro&ide maintenance for a di&orced 'ife 'ho is una(le to maintain herself. 12. The aforesaid 9udgment 'as recei&ed 'ith protest (y the +uslim "ommunity as according to them the said 9udgment interfered 'ith their #ersonal ;a'. Thereafter, the #arliament enacted the Act 'hich came into force on 13th +ay, 193). The #ream(le of the Act pro&ides that the Act has (een enacted to protect the rights of muslim 'omen 'ho ha&e (een di&orced (y, or ha&e o(tained di&orce from, their hus(and and to pro&ide for matters connected there'ith or incidental thereto. ection 2$a% of the said Act defines that 5di&orced 8oman5 means a muslim 'oman 'ho 'as married according to muslim la' and has (een di&orced (y, or has o(tained di&orce from, her hus(and in accordance 'ith la'. ection 4 pro&ides that not'ithstanding anything contained in any other la' for the time (eing in force, a di&orced 'oman shall (e entitled to a reasona(le and fair pro&ision and maintenance to (e made and paid to her 'ithin iddat period (y her former hus(and, a reasona(le and fair maintenance to the children for a period of t'o years from the respecti&e date of (irth of such children, an amount e>ual to the sum of mahr and do'er agreed to (e paid to her at the time of her marriage or at any time thereafter according to +uslim ;a' and all the properties gi&en to her (efore or at the time of marriage or after her marriage (y her relati&es or friends or the hus(and or any relati&e of the hus(and or his friends. 14. ection . pro&ides that in case 'hen the di&orce 'oman has not remarried and is not a(le to maintain herself after the <ddat period, the +agistrate may issue a direction to such of her relati&es as 'ould (e entitled to inherit her property on her death according to +uslim ;a' to

pay such reasona(le and fair maintenance to her. <n case relati&es are not in a position to pay the maintenance a direction may (e issued to the 8a=f :oard esta(lished under ection 9 of the 8a=f Act, 19!. or under any other la' to pay maintenance. ection ! pro&ides that after filing an application under ection 4 of the Act for maintenance etc. as mentioned a(o&e the di&orced 'ife and her former hus(and (y filing an affida&it or any other declaration as pro&ided therein may declare that their case should (e disposed of in terms of pro&ision of ections 12! to 123 of the "ode and thereafter the +agistrate 'ill dispose of the proceeding accordingly. ection 7 pro&ides that e&ery application (y a di&orced 'oman under ection 12! pending (efore a +agistrate on the commencement of this Act, shall not'ithstanding anything contain in that "ode and su(9ect to the pro&isions of ection ! of this Act, (e disposed of (y such +agistrate in accordance 'ith the pro&isions of this Act. 1.. Thus, the #ream(le of the Act sho's that the Act has (een (rought into e6istence 'ith a &ie' to protect the rights of the di&orced muslim 'omen. <t is a (eneficial legislation and it has to (e interpreted in such a manner as to fulfil the o(9ect for 'hich it has (een enacted. 1!. The pro&ision of ection 7 clearly sho's that an application filed (y a di&orced 8oman of +uslim hus(and after coming into force of the Act has to (e disposed of in terms of the Act. The con9oint reading of the aforesaid pro&ision and the non0o(stante clause ma=es it clear that ection 12! of the "ode has (een e6cluded or made inoperati&e in case of claim of maintenance (y a di&orced muslim 'ife from her hus(and. The "ode of "riminal #rocedure is a general one 'hereas the Act in >uestion is a special one and it 'ill pre&ail o&er the general pro&ision contained under the "ode. Thus, from (are reading of the pro&ision it is clear that after coming into force of the Act the claim of maintenance under ection 12! of the "ode (y a di&orced muslim 'oman is not maintaina(le unless the case is co&ered (y ection ! of the Act, according to 'hich (oth the parties $hus(and and di&orced 'ife% may agree for disposal of their case in terms of the pro&isions of ections 12! to 123 of the "ode (y complying 'ith the re>uirement as mentioned in the said ection. 1). A learned ingle *udge of this "ourt in the case of +d. Aunus &. :i(i #hen=ani alias Tasrun 1isa 1937 $2% "rimes 2.1, held that the di&orced 'oman is no longer entitled to claim of maintenance under ection 12! of the "ode and her claim for maintenance is to (e determined in terms of the pro&ision of the Act, according to 'hich she is entitled to the claim of maintenance for the <ddat period. 19. Thus, once it is pro&ed that a muslim 'oman has (een di&orced in accordance 'ith la' her right to claim maintenance under ection 12! of the "ode ceases and her case is to (e go&erned (y the pro&ision of the Act. :ut prior to di&orce her claim for maintenance in case of refusal or neglect (y the hus(and is go&erned (y ection 12! of the "ode for the simple reason that (efore the di&orce she is 'ife of the muslim hus(and and he is lia(le to pay maintenance to his 'ife in case of fulfilments of the conditions as mentioned under ection 12! of the "ode. 20. A sho' cause 'as filed (y the hus(and 'herein he has not stated that he has di&orced his 'ife. 7e did not cross0e6amine the 'itnesses e6amined on (ehalf of his 'ife on the point of di&orce and on the other hand he has specifically stated in the sho' cause that he is ready to =eep his 'ife. At the fag end of the case an application 'as filed (y the (rother of the petitioner,

'hich 'as not e&en signed (y the Ad&ocate engaged (y the petitioner, that he has di&orced his 'ife. The +agistrate re9ected the said petition on the ground that no suggestion 'as made during the cross0e6amination (y the 'itnesses that the petitioner has di&orced his 'ife and the said application 'as neither signed (y the petitioner nor he had authorised his Ad&ocate to sign on his (ehalf. 21. :oth the "ourts ha&ing come to the conclusion that the petitioner has not (een a(le to pro&e that he has di&orced his 'ife, re9ected the (elated statement made in the petition filed (y the (rother of the petitioner as not (eing petition filed (y the petitioner stating that he had di&orced his 'ife. There is no record to sho' that he authorised his (rother to pronounce tala= (y filing a petition 'hich 'as e&en not signed (y the Ad&ocate of the petitioner. The petitioner in his sho' cause himself stated that he 'as ready to =eep his 'ife. <n that &ie' of the matter, (oth the "ourts ha&e rightly re9ected the claim of Di&orce set up (y the petitioner. 22. Ta=ing into consideration the aforesaid facts < am of the &ie' that no case for interference 'ith the finding of the +agistrate that the hus(and has failed to pro&e the di&orce, is made out. The said finding has (een upheld in Re&ision. 1o other point has (een urged on (ehalf of the petitioner. 24. <n the result, the application is dismissed.