1. The following two cardinal questions fall for consideration in this revision, which has been preferred against the order dated 3-6-2008 passed by the Family Court, Gorakhpur in case No. 288 of 2003 (Smt. Anees Fatima v. Shahid Jamal) under Section 125 Cr. P.C, whereby at the time of allowing the application 58-B for recalling ex parte order dated 29-5-2008, interim maintenance @ Rs. 2000/- p.m from the date of order has been granted in addition to imposing the cost of Rs. 1000/- :-(i) Whether a divorced Muslim woman can claim maintenance from her former husband under Section 125 of the Code of Criminal Procedure (in short, ‘the Cr. P.C’)? (ii) Whether interim maintenance can be granted under the proviso to Section 126 Cr. P.C at the time of recalling the ex parte order in the proceedings under Section 125 Cr. P. C?

2. Shorn of unnecessary details, the facts emerging from the record leading to the filing of this revision, in brief, are that an application under Section 125 Cr. P.C for granting maintenance was moved on 27-6-2003 by Smt. Anees Fatima (respondent No. 2 herein) against the revisionist Shahid Jamal Ansari impleading him as opposite party. It was alleged in that application that she is legally wedded wife of opposite party, who has turned her out from his house and since she is unable to maintain herself, hence she is entitled to get maintenance from him. On the basis of that application, case No. 288 of 2003 was registered in Family Court, Gorakhpur. The revisionist filed his written statement, in which it was alleged that he had divorced the applicant on 1-6-2003 and hence the application under Section 125 Cr. P.C for granting maintenance is not legally maintainable. It was also alleged by the revisionist that he had given written information about talak to the applicant by registered post on 2-6-2003 and had sent a money order of Rs. 14,000/- on that very day, which consisted of Rs. 3000/- as the expenses for iddat period and Rs. 11000/- of the mehr, but she refused to accept the money-order. It appears from the record that after taking the evidence of the applicant in case No. 288 of 2003, evidence of the opposite party was taken and statement of one witness was recorded on 10-3-2008 as D.W 1. Thereafter, several dates were given to the opposite party to produce the rest witnesses and ultimately 29-5-2008 was fixed for remaining evidence, but on that date the opposite party became absent and hence, his evidence was closed and 3-6-2008 was fixed for judgment. After passing that order, the opposite party moved an application bearing paper No. 58-B on the same day to recall that order. That application was allowed by the impugned order, but as mentioned in para 1 above, the Family Court in addition to imposing Rs. 1000/- as cost has granted interim maintenance also in favour of the applicant @ Rs. 2000/- p.m from the date of order. Hence, this revision. I have heard Sri A.P Tiwari, learned counsel for the revisionist, Sri G.S Yadav, learned counsel for opposite party No. 2 and learned A.G.A for the State and perused the entire record.

3. It was vehemently contended by learned counsel for the revisionist that the application moved by the applicant Smt. Anees Fatima for granting maintenance under Section 125 Cr. P.C is not legally maintainable, as she was divorced by the revisionist prior to the filing of that application and hence the interim maintenance could not be granted in this case at the time of allowing the application to recall the order dated 29-5-2008. It was further submitted by the learned counsel for the revisionist that the applicant had moved an application in case No. 288 of 2003 for granting interim maintenance, which was rejected vide order dated 27-9-2005, against which the applicant has filed time-barred criminal revision in High Court and hence on this ground also, the Court below could not grant interim maintenance at the time of passing the impugned order.

4. On the contrary, it was submitted by the learned counsel for Smt. Anees Fatima that she is still the legally wedded wife of the revisionist, as no legal talak has been given to her according to Muslim Law and hence, she is entitled to claim maintenance from the revisionist under the provisions of Section 125 Cr. P.C Placing reliance on Zuber Ahmad Qazi v. State of U.P, 2008 (62) ACC 62, it was further submitted by the learned counsel for Smt. Anees Fatima that a divorced Muslim woman is also entitled to claim maintenance under Section 125 Cr. P.C It was also submitted that the revisionist was causing delay in the proceedings under Section 125 Cr. P.C and hence, the Court below did not commit any illegality in granting interim maintenance while allowing the application to recall the ex parte order dated 29-5-2008.

5. Having given my thoughtful consideration to the rival submissions made by the parties counsel, I find no force in the contention of the learned counsel for Smt. Anees Fatima that a divorced Muslim woman can claim maintenance under Section 125 Cr. P.C With profound respect to my esteemed senior brother Hon'ble Barkat Ali Zaidi, J. who passed the order in the case of Zuber Ahmad Qazi v. State of U.P (supra), I can not refrain myself from saying that his Lordship's observation that a divorced Muslim woman is entitled to maintenance under Section 125 Cr. P.C is ‘per incuriam’ and is the result of misreading of the judgment of Danial Latifi v. Union of India, JT 2001 (8) S.C 219 : (2001) 7 SCC 740 : (AIR 2001 SC 3958). I have carefully gone through the entire judgment in Daniel Latifi case (supra). It is nowhere held in that judgment that a divorced woman is entitled to claim maintenance from her former husband under Section 125 Cr. P.C

6. In Mohd. Ahmad Khan v. Shah Bano Begum, 1985 SCC (Cri) 245 : (1985) 2 SCC 556 : (AIR 1985 SC 945) (popularly known as Shah Bano case), it was held by the Constitutional Bench of the Hon'ble Apex Court that the divorced Muslim women were entitled to apply for the maintenance against their former husbands under Section 125 Cr. P.C and such applications were not barred under Section 127(3)(b) Cr. P.C It was also held in Shah Bano case (supra) that if the divorced wife is able to maintain herself, the husband's liability to provide maintenance for her ceases with the expiration of the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 Cr. P.C There was a big uproar thereafter in the country. Consequently, the Parliament enacted Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter to be referred as ‘1986 Act’) with the intention of making the decision of Shah Bano case ineffective.

7. The object of enacting 1986 Act, as stated in the Statement of Objects and Reasons to the Act, is that the Apex Court, in Shah Bano case held that Muslim law limits the husband's liability to provide for maintenance of the divorced wife to the period of iddat, but it does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973 and, therefore, it cannot be said that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance beyond the period of iddat to his divorced wife, who is unable to maintain herself.

8. Sections 3 and 4 of 1986 Act are the principal sections, which were under attack before the Apex Court in Danial Latifi case : ((2001) 7 SCC 740 : AIR 2001 SC 3958)(supra), in which the Constitutional validity of the Act was challenged. Section 3 opens up with a non obstante clause overriding all other laws and provides that a divorced woman shall be en titled to-

(a) a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband;

(b) where she maintains the children born to her before or after her divorce, a reasonable provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and

(d) all the properties given to her before or at the time of marriage or after the marriage by her relatives, friends, husband and any relatives of the husband or his friends.

9. A reading of 1986 Act will indicate that it codifies and regulates the obligations due to a Muslim woman divorcee by putting them outside the scope of Section 125 Cr. P. C, as the “divorced woman” has been defined as “Muslim woman who was married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with the Muslim law”. A careful reading of the provisions of the Act would indicate that a divorced Muslim woman is entitled to a reasonable and fair provision for maintenance.

10. The important section in 1986 Act is Section 3 which provides that a divorced woman is entitled to obtain from her former husband “maintenance”, “provision” and “mahr”, and to recover from his possession her wedding presents and dowry and authorizes the Magistrate to order payment or restoration of these sums or properties. The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.

11. While upholding the Constitutional validity of 1986 Act, the Hon'ble Apex Court in Danial Latifi case : ((2001) 7 SCC 740 : AIR 2001 SC 3958) (supra) has summed up its conclusions as under:

“(1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.

(2) Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to the iddat period.

(3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. (4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.”

12. In Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai, AIR 1988 Guj 141, Ali v. Sufairo, (1988) 3 Crimes 147 (Ker), K. Kunhammed Haji v. K. Amina, 1995 Cri LJ 3371 (Ker), K. Zunaideen v. Ameena Begum, (1998) 2 DMC 468 (Mad), Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh, 2000 Cri LJ 3560 (Bom) (FB) and Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh, (1999) 3 Mah LJ 694 : (1999 Cri LJ 3846) while interpreting the provision of Sec tions 3(1)(a) and 4 of 1986 Act, it is held that a divorced Muslim woman is entitled to a fair and reasonable provision for her future being made by her former husband which must in clude maintenance for the future extending beyond the iddat period. It was also held that the liability of the former husband to make a reasonable and fair provision under Section 3(1)(a) of the Act is not restricted only for the period of iddat, but that a divorced Muslim woman is entitled to a reasonable and fair provision for her future being made by her former husband and also to maintenance being paid to her for the iddat period. A Full Bench of the Punjab and Haryana High Court in Kaka v. Hassan Bano, (1998) 2 DMC 85 (P&H) has taken the view that under Section 3(1)(a) of the Act, a divorced Muslim woman can claim maintenance which is not restricted to the iddat period.

13. In view of the law laid down in above mentioned cases and the observations made by the Hon'ble Apex Court in Danial Latifi case : ((2001) 7 SCC 740 : AIR 2001 SC 3958)(supra), I am of the considered opinion that a divorced Muslim woman cannot claim maintenance from her former husband under Section 125 Cr. P.C and her remedy to claim maintenance etc. is only under 1986 Act, which is a complete Code in itself on the matter of maintenance etc. for a divorced Muslim woman.

14. In the present case, the matter of divorce is disputed. The applicant has claimed maintenance in the application under Section 125 Cr. P.C from the revisionist in the capacity as his legally wedded wife. It is only in the written statement of the revisionist that plea of giving talak to the applicant has been raised. On this ground, interim maintenance was refused by the Court below vide its order dated 27-9-2005, which is under challenge in the time-barred criminal revision filed by the applicant in High Court. Now interim maintenance has been granted by the Court below at the time of passing the impugned order, whereby the application 58-B for recalling the ex parte order dated 29-5-2008 has been allowed. Impugned order has been passed under the proviso to Section 126 Cr. P.C which reads thus:-

“126. Procedure.— (1) Proceedings under section 125 may be taken against any person in any district-

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.”

15. As would appear from the aforesaid proviso to Section 126 Cr. P. C, the ex parte order may be set-aside for good cause being shown on an application made within three months from the date thereof subject to such “terms” including “terms” as to payment of costs to the opposite party as the Magistrate may think just and proper. Under the power conferred by proviso to Section 126 Cr. P.C the court below has granted interim maintenance to the respondent Smt. Anees Fatima at the time of allowing the application 58-B vide impugned order. The ordersheets of case No. 288 of 2003 under Section 125 Cr. P.C (Annexure CA-1 to the counter affidavit filed on behalf of O.P No. 2), it is revealed that the revisionist was causing delay in the proceedings of the case and he was not paying the costs also imposed on him for seeking adjournments. From the impugned order, it is also revealed that in her objections against the application 58-B for recalling the order dated 29-5-2008, Smt. Anees Fatima has made prayer to grant interim maintenance during pendency of the case. Therefore, having regard to the facts and circumstances of this case, the learned court below did not commit any illegality in granting interim mainte- nance under the proviso to Section 126 Cr. P.C vide impugned order, as in appropriate cases such order can be passed after giving opportunity to the other side to make his submissions on this matter. The Magistrate in addition to imposing costs, is fully empowered to grant interim maintenance also in appropriate cases under the proviso to Section 126 Cr. P.C at the time of setting aside the ex parte order, as granting of interim maintenance is covered in the word “terms” used in the proviso. Although the matter of granting interim maintenance in present case is pending in High Court in time-barred criminal revision, which has been preferred by Smt. Anees Fatima against the order dated 27-9-2005, but in my opinion, interference on this ground in the impugned order of granting interim maintenance will not be justified.

16. The reason for my coming to this conclusion is that even if it is assumed for the sake of argument that the revisionist had divorced his wife Smt. Anees Fatima prior to her filing the application under Section 125 Cr. P. C, then in that situation, he (revisionist) would be liable to make payment of fair provision and maintenance etc. to her under the provisions of 1986 Act. In case, it is held that if Smt. Anees Fatima is still the legally wedded wife of the revisionist and divorce has not taken place according to Muslim Law, then in that case, she would be entitled to claim maintenance from the revisionist under Section 125 Cr. P. C, because a Muslim woman who has not been divorced by her husband is entitled to claim maintenance from her husband under Section 125 Cr. P.C If accepting the defence of the revisionist, it is held that Smt. Anees Fatima was divorced prior to the filing of the application by her under Section 125 Cr. P. C, then the revisionist would be under obligation to make payment of the fair provision and maintenance etc. to her under 1986 Act. In the case of Iqbal Bano v. State of U.P, (2007) 6 SCC 785 : (2007 (4) ALJ 587) the Hon'ble Apex Court has held that even if a divorced Muslim woman applies for maintenance under Section 125 Cr. P. C, it is open to the Court to treat it as an application under the 1986 Act. Admittedly the revisionist has not made payment of the amount of fair provision and maintenance to the applicant beyond the iddat period, although he has set up the plea of giving divorce to the applicant prior to the filing of the application under Section 125 Cr. P.C Hence, the amount of interim maintenance to be paid to Smt. Anees Fatima in pursuance of the impugned order may be adjusted in the amount of fair provision and maintenance etc., which would be payable by the revisionist under 1986 Act in case the plea of “talak” set up by him in the written statement is accepted. Therefore, for all these reasons, interference by this Court in the impugned order would be unwarranted.

17. Consequently, the revision is dismissed. Two months time is granted to the revisionist to make payment of the amount of arrear of interim maintenance in pursuance of the impugned order, failing which the law will take its course.

18. Revision dismissed.