SHAIKH BABBU Vs. SAYEDA MASARAT BEGUM

JUDGEMENT

(1.) PETITIONER-THE revision applicant was married to respondent No. 1 Sayeda Masarat Begum as per Muslim religion on 2nd July 1994. Out of the said wedlock, the respondent No. 2 son was born on 1st July, 1995. The applicant husband gave divorce to respondent No. 1 on 24-10-1996 in the presence of two witnesses and the Head Kazi at Aurangabad. It is contended by the applicant husband that the wife refused to take the document of divorce entered in the register. The wife filed an application under Section 125 of the Code of Criminal Procedure in the Family Court on 27-9-1996 and claimed maintenance for herself and for her son (Petition No. E319/96 ). The husband opposed the said claim both on merits as well as on the point of jurisdiction. After hearing both the parties, the learned Judge of the Family Court on relying on a judgment of this Court (DB) in the case of Allabuksh Karim Shaikh v. Noorjahan Allabuksh Shaikh (1994) 2 Mah LJ 1376 allowed the claim of the wife and son by the impugned judgment and order dated 28-12-1996.

(2.) SHRI Gulam Mustafa, learned Counsel appearing for the applicant, has raised, during the course of his arguments, the following preliminary points;

(3.) THE M. W. Act is enacted to protect the rights of Muslim women who have been divorced by or have obtained divorce from their husbands and to provide for matters connected therewith or incidental thereto. There is no dispute that so far as the rights of the children are concerned, for claiming maintenance against the father, they are governed by the provisions of Section 125 of Cr. P. C. and the provisions of the M. W. Act in any manner do not come in their way from claiming such a right. This position in law has been well recognised by the Supreme Court in the case of Noor Saba Khatoon v. Mohd. Quasim, AIR 1997 SC 3280 : (1997 Cri LJ 3972) Section 3 of the M. W. Act inter alia provides that the husband is liable to pay a reasonable and fair maintenance amount to the divorced wife within the Iddat period as well as where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by the husband for a period of two years from the respective dates of birth of such children; an amount equal to the sum of Maher or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law and all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. The remedy for these benefits is provided in sub-section (2) of Section 3, namely; to file an application before a Magistrate of the concerned area. Sub-section (3) lays down the procedure to be followed by the Magistrate whereas sub-section (4) provides for the means for the enforcement of the order passed by the Magistrate including the punishment to the husband. Section 4 of the M. W. Act is titled as "order for payment of maintenance" and states that where a Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the Iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper. Where such a divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her. If any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them does not have enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid, the Magistrate may, by order, direct the State Wakf Board established under Section 9 of the Wakf Act, 1954 (Section 36 of the Wakf Act of 1995) or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1 ). In short, the steps for such an application before the Magistrate would be (1) the proceedings shall in the first instance be initiated against the children of the divorced woman : (2) If the children are unable to pay maintenance then the second proceedings shall be initiated against the parents of the divorced woman: (3) if the parents or any one of them is unable to pay the respective share of maintenance then fresh proceedings be started against the relatives : (4) in case the relatives are unable to meet the claim of maintenance, fresh proceedings be initiated against "other relatives"; and (5) finally, when no relative exists as mentioned in sub-section (1) or such relatives or any one of them unable to pay maintenance then another set of proceedings be initiated against the State Wakf Board; all backed by the orders of the Magistrate.