MAUJDEEN Vs. GOHRI
LAWS(HPH)-1997-8-23
HIGH COURT OF HIMACHAL PRADESH
Decided on August 12,1997

MAUJDEEN Appellant
VERSUS
GOHRI Respondents




JUDGEMENT

SURINDER SARUP,J. - (1.)The present revision petition has come up before us on a reference order made by a Single Judge ( Bhawani Singh. J.) dated 11.8.1992. This reference was necessitated because of the different interpretations put on the provisions of Muslim Women (Protection of Rights on Divorce) Act. 1986 (herein after to be called as the Act) by various High Courts. The said Act was enacted as a result of the decision of the apex Court which is now the celebrated case of Shah Bano Begum, reported as Mohd. Ahmed Khan v. Shah Bano Begum & Ors. (AIR 1985 Supreme Court, 945). As noticed, in the reference order the High Courts of Patna. Andhra Pradesh. Madras, Bombay, Allahabad, Rajasthan and Kerala have .taken the view that after the commencement of the Act no claim for maintenance is admissible under Section 125. Code of Criminal Procedure except by mutual agreement irrespective of the act whether the order for maintenance has been passed priori to the commencement of the Act or subsequent thereto.
(2.)On the other hand, the High Courts of Gujarat, Calcutta, Kerala, Guwahati, Punjab & Haryana and Karnataka in another case have taken the view that the Muslim women are entitled to maintenance and provisions of Section 125 and 128 of the Code of Criminal Procedure are applicable and enforceable even after the period of Iddat whether the order is passed before the commencement of the Act or thereafter.
(3.)However, the position has now been settled by the apex court in Secretary. Tamil Nadu Wakf Board & Anr: v. Syed Fatima Nachi (1996 CRL. .LJ. 3488). It has been laid down therein that in a proceeding under the Act. she (wife) is entitled to plead and prove the facts in one proceedings as to inability of her relations mentioned in sub -section (1) to maintain her by directing her claim against the State Wakf Board in first instance. She is not required to proceed against her relatives mentioned in sub - section (1) first in the order they are mentioned and then finally to initiate proceedings against Wakf Board. Provision of Section 4. sub - sections (1) and (2) has been held by the apex court to be one integrated whole.


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