Khurshid Khan Amin Khan v. Husnabanu Mahimood Shaikh

Vaidya, J.:— This application under art. 227 of the Constitution, would have been rejected summarily, without recording the following reasons, but for the fact that the learned Sessions Judge, Ahmednagar, while delivering his judgment, on August 27, 1975, dismissing the Criminal Revision Application, filed by the husband, erroneously described the order of the Magistrate, as awarding maintenance to the wife, Husnabanu-respondent No. 1 at Rs. 50 per month though the learned Judicial Magistrate, First Class had ordered, on the application under s. 125 of the Code of Criminal Procedure, 1973, that the wife is entitled to maintenance at the rate of Rs. 75 per month from the date of the application i.e April 18, 1974; and the child, respondent No. 2 is entitled to a further sum of Rs. 50 per month beginning from that date. It is difficult to understand how the learned Sessions Judge committed such a manifest mistake while describing the order passed by the learned Magistrate.

2. Now that we are delivering this judgment, we may as well deal with the contentions ingeniously raised by Mr. Hussein, the learned counsel for the appellant, husband relying on the principles of Muslim law, that a divorced wife under that law is entitled to maintenance only during the period of iddat i.e the period, during which it is incumbent upon the woman, whose marriage has been dissolved by divorce or declaration, to remain in seclusion and abstain from marrying another husband.

3. We are here only concerned with divorce. Iddat period of divorce is said to be “three courses” which expression appears to have been identified as three monthly courses. It is well-known that the abstention was imposed to ascertain whether the divorced wife was pregnant by the divorcing husband, so as to avoid confusion of parentage. See Zamin Ali v. Aziz-un-nissa . 1932 I.L.R 55 All. 139., Mulla, Principles of Mahomedan Law, seventh edn., p. 324. Scientifically it is difficult to understand why a woman should wait for three monthly courses unless by “three courses” is meant three days of menstruation in the month after divorce, before it can be ascertained whether she is pregnant.

4. The said principles of Muslim law relating to iddat relied, upon by Mr. Hussein are, however, not relevant when considering the provisions of s. 125 of the Code of Criminal Procedure, 1973 enacted by the Parliament for all unprovided wives, irrespective of their religion or caste. The Parliament has the power to make an enactment that even a divorced Muslim woman shall be entitled to maintenance so long as she remains unmarried. There is no-v thing in s. 125 or chap. IX of the Criminal Procedure Code, 1973 which excludes Muslim women from the benefits of s. 125. Section 125 defines, for the purpose of the chapter, a “wife” as including “a woman who has been divorced from her husband and who has not remarried.” Such an enactment can be made with regard to Muslim women by the Parliament having regard to its powers under art. 15 of the Constitution of India, which enable Parliament to make special provisions for women. The enactment is consistent with art. 44 of the Constitution contemplating a uniform civil code. Mr. Hussein, the learned counsel for the petitioner, with his profound knowledge of Muslim culture, particularly its broad basis of charity towards all including abandoned wives, was fair enough not to base any argument on art. 29(1) protecting Muslim culture. Culture as understood today, universally and even among Muslims, cannot include a relation between husband and wife, where a husband seeks cover of divorce to protect himself from being proceeded against by his divorced wife, for maintenance of herself and his child.

5. Culture can never mean a culture which gives a right to the husband to refuse or deny maintenance to the wife and/or child. In any event, in the chapter of Divorce the Holy Quran has declared “Let the divorced women dwell where ye dwell, according to your means, and do not harm them, to reduce them to straits” (see chap. LXV, Palmer's Translation of Quran—OUP—1960, p. 489). Hence there was nothing in Muslim law or culture to prevent Parliament from making a law conferring a right on the divorced Muslim wife to claim maintenance against her quondam husband, so long as she remained unmarried, even after the iddat period.

6. Mr. Hussein tried to make a distinction on the basis that in the present case the divorce was by mutual consent or khula divorce, which is discussed in para. 319 of Mulla—Principles of Mahomedan Law, seventh edn. He also submitted that he was compelled to give talaq and therefore the wife was estopped from claiming maintenance. No such case was made out by the husband in the lower Courts. No such distinction or plea can be made in proceedings under s. 125, which applied to divorced wife remaining unmarried. Both the lower Courts have rightly held, however, on appreciating evidence that the husband had given talaq when divorcing his wife. Mr. Hussein cannot, therefore, rely on “khula divorce”. Even assuming that he could, the explanation (b) to s. 125 of the Criminal Procedure Code, 1973 makes no distinction between khula divorce and talaq divorce.

7. Mr. Hussein then relied on the provisions of s. 127(3), which deal with certain variations to be made in the order of maintenance, in the event of the wife getting remarried, before or after the date of the order; and where she has received the whole or part of the sum which under any customary or personal law applicable to the parties was payable. Mr. Hussein contended that personal law is not therefore excluded by chap. XIX, but it has to be borne in mind when making an order under s. 125.

8. It is difficult to understand how this argument of Mr. Hussein can help him in the present application under art. 227 of the Constitution of India, because both the Courts below have concurrently found as a fact that though the husband is a teacher, he has not cared to pay anything or provide any maintenance to the wife and the child after he divorced her and married a second wife. Such a finding of fact cannot be interfered with by this Court under art. 227 of the Constitution having regard to the decision of the Supreme Court in Babhutmal v. Laxmibai . 1975 1 SCC 858.

9. The only other point urged by Mr. Hussein in support of his argument was that the net income of the husband who was a primary school teacher was only Rs. 198; and if he pays Rs. 75 to his wife and Rs. 50 to the child, he is left only with a petty amount of Rs. 73; and that will not be enough to keep his body and soul together or maintain his family consisting of his second wife, old mother and father.

10. According to the wife the husband was capable of giving maintenance at the rate of Rs. 100 for her and Rs. 50 for her son. At the hearing he said that he would pay Rs. 75 for her and Rs. 50 for her son. The quantum of maintenance depends on the facts and all the circumstances of each case. The trial Court considered all the facts and came to the conclusion that the order of maintenance passed by the learned Magistrate was proper.

11. It is clear from the order of the learned Sessions Judge in the revision application that the quantum of maintenance was not even challenged before him. A second revision application by the husband is barred under s. 397(3), Criminal Procedure Code and he cannot get out by filing a petition under art. 227 or raise a question of fact. It is true that in the last para, the learned Sessions Judge has referred to the quantum of maintenance; but he has said at the beginning of the judgment that the only point urged before him was regarding the interpretation of the word ‘wife’ in s. 125 of the Criminal Procedure Code. In the result, there is no ground whatsoever for interference under art. 227 in this case.

12. The application is summarily rejected.

13. Application rejected.