PUSHPENDRA SINGH BHATI,J. - (1.) This criminal misc. petition under Section 482 Cr.P.C., 1973 has been preferred against the order dated 11.09.2007 passed by learned Sessions Judge, Churu in Criminal Revision No.72/2006, affirming the order dated 05.04.2006 passed by learned Chief Judicial Magistrate, Churu in Criminal Misc. Case (Section 125 Cr.P.C., 1973) No.192/2004, per which the petitioner/applicant was allowed maintenance for an amount of Rs. 1000/- per month till the term of Iddat; Rs. 700/- per month was allowed as maintenance to applicant No.2 Zaheer Abbas being handicapped till being competent to maintain himself and Rs. 800/- per month was allowed to applicant No.3 Sabeena being minor till getting married or attaining majority, whatsoever is earlier; all from the date of application.
(2.) The petitioner has preferred an application under Section 125 Cr.P.C., 1973 along with her handicapped son, namely, Zaheer Abbas and minor daughter, Sabeena stating therein that the marriage between the parties was solemnized in the year 1973. It is also alleged that the respondent left for Qatar and did not bother about the petitioner and her children for six years, and thus, allegedly committed cruelty upon them.
(3.) Learned counsel for the petitioner has relied upon the precedent law laid down by the Hon'ble Apex Court in Iqbal Bano v. State of U.P. and Anr., reported in 2007(7) SBR 506 , relevant paras 6 to 8 of which read as under:- "6. The view expressed by the First Revisional Court that no Muslim woman can maintain petition under Section 125 Cr.P.C., 1973 is clearly unsustainable. The Act only applies to divorced women and not to a woman who is not divorced. The conclusions that in view of the statement in the written statement about alleged divorce 30 years by utterance of the words "Talaq" "Talaq" "Talaq" three times is sufficient in law is not sustainable. This Court in Shamim Ara v. State of U.P. and Anr. : (2002) SUPP 3 SCR 19 observed: "16. We are also of the opinion that the talaq to be effective has to be pronounced. The term "pronounce" means to proclaim, to utter formally, to utter rhetorically, to declare to utter to articulate (see Chambers 20th Century Dictionary, New Edition, p. 1030) There is no proof of talaq having taken place on 11.7.1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5.12.1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. Respondent 2 ought to have adduced evidence and proved the pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on the wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31.8.1988, filed in some previous judicial proceedings not inter partes, containing a self-serving statement of Respondent 2, could not have been read in evidence as relevant and of any value." 7. The conclusions about the Mehr having been paid and the Iddat period is over has no relevance. A Constitution Bench of this Court in Danial Latifi and Anr. v. Union of India: 2001 Cri. L.J 4660 observed as follows: "28. A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word "provision" indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. The expression "within" should be read as "during" or "for" and this cannot be done because words cannot be construed contrary to their meaning as the word "within" would mean "on or before", "not beyond" and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time. 29. The important section in the 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. The wordings of Section 3 of the Act appear to indicate that the husband has two separate and distinct obligations: (1) to make a "reasonable and fair provision" for his divorced wife; and (2) to provide "maintenance" for her. The emphasis of this section is not on the nature or duration of any such "provision" or "maintenance", but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely. "within the iddat period". If the provisions are so read, the Act would exclude from liability for post-idiot period maintenance to a man who has already discharged his obligations of both "reasonable and fair provision" and "maintenance" by paying these amounts in a lump sum to his wife, in addition to having paid his wife's mahr and restored her dowry as per Sections 3(1)(c) and 3(l)(d) of the Act. Precisely, the point that arose for consideration in Shah Bano case was that the husband had not made a "reasonable and fair provision" for his divorced wife even if he had paid the amount agreed as mahr half a century earlier and provided iddat maintenance and he was, therefore, ordered to pay a specified sum monthly to her under Section 125 Cr.P.C., 1973 This position was available to Parliament on the date it enacted the law but even so, the provisions enacted under the Act are "a reasonable and fair provision and maintenance to be made and paid" as provided under Section 3(l)(a) of the Act and these expressions cover different things, firstly, by the use of two different verbs - "to be made and paid to her within the iddat period" it is clear that a fair and reasonable provision is to be made while maintenance is to be paid; secondly, Section 4 of the Act, which empowers the Magistrate to issue an order for payment of maintenance to the divorced woman against various of her relatives, contains no reference to "provision". Obviously, the right to have "a fair and reasonable provision" in her favour is a right enforceable only against the woman's former husband, and in addition to what he is obliged to pay as "maintenance"; thirdly, the words of The Holy Quran, as translated by Yusuf Ali of "mata" as "maintenance" though may be incorrect and that other translations employed the word "provision", this Court in Shah Bano case dismissed this aspect by holding that it is a distinction without a difference. Indeed, whether "mata" was rendered "maintenance" or "provision", there could be no pretence that the husband in Shah Bano case had provided anything at all by way of "mata" to his divorced wife. The contention put forth on behalf of the other side is that a divorced Muslim woman who is entitled to "mata" is only a single or onetime transaction which does not mean payment of maintenance continuously at all. This contention, apart from supporting the view that the word "provision" in Section 3(1)(a) of the Act incorporates "mata" as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period, also enables "a reasonable and fair provision" and "a reasonable and fair provision" as provided under Section 3(3) of the Act would be with reference to the needs of the divorced woman, the means of the husband, and the standard of life the woman enjoyed during the marriage and there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman, though it may look ironical that the enactment intended to reverse the decision in Shah Bano case actually codifies the very rationale contained therein. 36. While upholding the validity of the Act, we may sum up our conclusions: (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(i)(a) of the Act. (2) Liability of the Muslim husband to his divorced wife arising under Section 3(i)(a) of the Act to pay maintenance is not confined to the iddat period. (3) A divorced Muslim woman who is 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 relative who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law for such divorced woman including her children and parents. If any of her relative being unable to pay maintenance, the Magistrate may direct the State Waqf Board established under the Act to pay maintenance. (4) The provisions of the Act do not offend ficle 14, 15 and 21 of the Indian Constitution. 8. The position was followed in Sabra Shamim v. Maqsood Ansari 2004 (9) SCC 616. ";