Case BriefsHigh Courts

Allahabad High Court: Raj Beer Singh, J., observed that:

“The object of the Section 125 CrPC being to afford a swift remedy, and the determination by the Magistrate as to the status of the parties being subject to a final determination by the Civil Court, when the husband denies that the applicant is not his wife, all that the Magistrate has to find, in a proceeding under Section 125 CrPC, is whether there was some marriage ceremony between the parties, whether they have lived as husband and wife in the eyes of their neighbours, whether children were born from the union.”

The instant revision was preferred against the order passed under Section 125 of Criminal Procedure Code.

Contention that falls for consideration:

Whether respondent 2 has been able to show herself as married wife of revisionist in order to claim maintenance from revisionist under Section 125 CrPC?

Proceedings under Section 125 CrPC. are summary proceeding. In Supreme Court’s decision of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675, it was observed that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC.

Bench expressed that it is a well-settled law that for the purposes of a proceeding under Section 125 CrPC, the factum of marriage has to be prima facie considered.

“If there is prima facie material on record to suggest that the parties have married or are having relationship in the nature of marriage, the court can presume in favour of the woman claiming maintenance.”

 Court also stated that an order passed in an application under Section 125 CrPC does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide a summary remedy for providing maintenance to a wife, children and parents.

In the decision of S. Sethurathiuam Pillai v. Barbara it was observed that maintenance under Section 488 CrPC, 1898 (similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties.

Court observed that in a proceeding for maintenance under Section 125 CrPC, a Magistrate or Judge of the Family Court has to be prima facie satisfied about the marital status of the parties, as a decision under Section 125 CrPC is tentative in nature, subject to the decision in any civil proceeding, as has been held in Santosh v. Naresh Pal (1998) 8 SCC 447.

In light of the above discussions, High Court states that if from the evidence which is led, the Magistrate/Court is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 CrPC which are of summary nature, strict proof of performance of essential rites is not required.

In the instant matter, respondent 2 had submitted that her nikah was solemnized with the revisionist and out of that marriage, she gave birth to a daughter, but she was killed by the revisionist, whereas the case of the revisionist was that his nikah was never solemnized and they never lived as husband and wife together.

Limited Scope of Revisional Court

Question whether the respondent 2 was a married wife of revisionist, is a question of fact and thus, this court cannot upset the finding of the trial court by entering into re-appreciation of evidence, unless it is shown such a finding is not based on evidence or some patent error of jurisdiction is shown. In the instant case, no such eventuality could be shown. In fact, if the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the Revisional Court is very limited.

Further, the Court added that in view of evidence on record, the grant of maintenance from the date of application cannot be said arbitrary or against law. The quantum of maintenance also appeared reasonable and appropriate.

“If a party deliberately delays the proceedings for long period, such party must not be allowed to take advantage of such tactics.”

 High Court found no illegality, perversity or error of jurisdiction in the impugned order.

While parting with the decision, Court added that the Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. [Irshad Ali v. State of U.P., 2021 SCC OnLine All 92, decided on 08-01-2021]


Advocates who appeared on behalf of the parties:

 Counsel for Revisionist: Krishna Mishra

Counsel for Opposite Party: G.A.

Case BriefsHigh Courts

Gauhati High Court: Soumitra Saikia, J., observed that

“..a valid decree of divorce by itself is no ground to deny the maintenance to a divorced wife.”

The criminal petition filed under Section 482 of the Criminal Procedure Code, 1973 sought the quashment of the Judgment and Order.

Wife/OP had filed an application under Section 125 CrPC claiming maintenance from the petitioner/husband @ Rs 5000 per month, later the husband filed a petition seeking to reduce the maintenance allowance stating that there was a substantial loss of income and was facing financial hardship.

In the meanwhile, the divorce case was decreed in favour of the husband. By the said judgment, the marriage was dissolved by decree of divorce under Section 13(1)(i–a) and (i)(b) of the Hindu Marriage Act.

Later, the husband’s petition seeking to reduce the maintenance allowance was allowed. The wife again preferred the revision petition stating that she decree of divorce would not automatically disentitle the wife from getting maintenance and the said revision petition was allowed by setting aside by remanding the matter back to the Judicial Magistrate Court.

Being aggrieved with the above, the husband filed the present criminal petition.

Analysis and Decision

On perusal of Section 125 and 127 of the Criminal Procedure Code, 1973, it revealed that legislature engrafted the said provisions for the benefit of the wife, a child and the parents of any person of any in order prevent them from becoming destitute.

In the instant matter, the concern is with regard to the maintenance in respect of a divorced wife.

“…true purport of the provisions of Section 125 is to ensure that in the event the husband fails to provide for adequate sustenance on an application made before the Magistrate, the sections empower the Magistrate to order the husband to provide for adequate maintenance for the benefit of the wife so as to prevent the wife from being reduced to a destitute or be compelled to live a life of beggary.”

Supreme Court consistently has held that a divorced wife would also be included in the definition of a wife as it defined under Section 125 CrPC.

“…responsibility of the husband towards a wife will not cease merely because a decree of divorce has been passed severing the marriage between the husband the wife.”

Decisions referred by the Court:

Rohtash Singh v. Ramendri, (2000) 3 SCC 180; Manoj Kumar v. Champa Devi,(2018) 12 SCC 748, Swapan Kumar Banerjee v. State of West Bengal, (2019) 4 SCC 146.

Court upon perusal of the Supreme Court decisions stated that it is evident that Section 125 CrPC being beneficial legislation to provide for protection to the wife, a mere divorce between the husband and wife will not preclude the “divorced wife” from claiming and/or availing of the benefits available to a wife under Section 125 CrPC.

The husband cannot absolve his responsibility to maintain and to provide for the adequate maintenance to the wife unless there are evidences to support that the wife is no longer required to be maintained in view of certain changed circumstances.

Bench also added that the claim for maintenance of a divorced wife can only be defeated either on the ground that she has remarried or that she is able to maintain herself. 

“…a ‘divorce’ does not change the status of a wife in the context of Section 125 CrPC.”

“…power under Section 127(2) CrPC, can only be invoked by a magistrate for cancellation of maintenance granted earlier only when there are changed circumstances after grant of such maintenance under Section 125.”

In the instant matter, there was no change of circumstances, which required the magistrate to invoke its powers under Section 127(2) for cancellation of the order directing payment of maintenance.

High Court directed the trial court to decide the matter afresh. [Bijoy Seal v. Sefali Seal, 2020 SCC OnLine Gau 4024, decided on 30-09-2020]


Advocates who appeared before the Court:

Advocate for the Petitioner: P J SAIKIA

Advocate for the Respondent:  K KALITA

Case BriefsHigh Courts

Gujarat High Court: The Division Bench of J.B. Pardiwala and Vireshkumar B. Mayani, JJ., while addressing the issue of grant of permanent alimony to a Muslim Woman noted the significant difference between permanent alimony and periodical maintenance.

An instant appeal under Section 19 of the Family Courts Act, 1984 was filed at the instance of the original defendant (husband) and was directed against the judgment and decree passed by Principal Judge, Ahemdabad for a decree of divorce under the provisions of Dissolution of Muslim Marriages Act, 1939.

Analysis, Law and Decision

Question for consideration:

Whether the Family Court committed any error in passing the order of permanent alimony in favour of the wife while granting the decree of divorce to the wife?

There are two types of alimony:

1. Given at the time of court proceedings- This is usually the maintenance amount.

2. Given at the time of legal separation- This can be given either in a lump sum or as a fixed monthly or quarterly payment or as per the requirements of the spouse.

Supreme Court on a creative and meaningful interpretation of the MWPRDA, 1986, upheld its constitutionality. It held that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife extending beyond the Iddat period.

In the Supreme Court decision of Shabana Bano v. Imran Khan, (2010) 1 SCC 666, the question that fell for consideration was whether a Muslim Divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 CrPC, and if yes, then through which forum.

In the above decision of the Supreme Court, it was held that petition under Section 125 CrPC would be maintainable before the family court as long as the wife does not remarry. The amount of maintenance to be awarded under Section 125 of the CrPC cannot be restricted for the Iddat period only.

Main Argument

The most significant submission on behalf of the appellant was that no provision exists in the Dissolution of Muslim Marriage Act, 1939 for the maintenance or permanent alimony. Further, it was stated that Family Court had no jurisdiction to pass any order with respect to maintenance or permanent alimony once the suit is allowed and the marriage is dissolved at the instance of the wife.

Muslim Women (Protection of Rights on Divorce) Act, 1986

The Muslim Women Act is “to protect the rights of Muslim women who have been divorced by or have obtained a divorce from their husbands and to provide for matters connected therewith or incidental thereto.

Hence the Muslim Women Act professes to deal with Muslim divorced women and their rights against their former husbands.

Family Court

Bench observed that, where a Family Court has been established, the power and the jurisdiction of the Family Court under Section 7(2) of the Family Courts Act, 1984 to entertain an application for maintenance, even by a divorced Muslim wife, under Chapter IX of the Code of Criminal Procedure has not been taken away, either expressly or even by implication by the Muslim Women Act of 1986.

And once such an application is made to a Family Court under Section 7(2) of the Family Courts Act, and not to a Magistrate, the same has got to be disposed of by the Family Court in accordance with the provisions of Chapter IX of the Code of Criminal Procedure, and the Muslim Women Act of 1986, including its Section 5, would have no manner of application.

Matrimonial Property

Further, it was stated that the right to maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of ‘dissolution of marriage’ and therefore, these reliefs are very much an integral part of the decree of ‘dissolution of marriage’.

Section 4 of the Act, 1986

It was also sought to be argued on behalf of the appellant that in view of Section 4 of the Act, 1986, the former husband had no liability to make any provision for the Post-Iddat period.

Bench observed that the right of maintenance given to the wife and the minor children under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is in addition to the right, which the minor children are having under Muslim Law to get maintenance from the father. The law expects that the parties should not be driven to approach the different forums but in one forum itself, they should be granted whatever reliefs to which they are entitled.

Supreme Court in the decision of K.A. Abdul Jaleel v. Shahida, (2003) 4 SCC 166 was concerned with the provisions of Section 7 of the Family Courts Act, 1984 as to whether the Family Court had the jurisdiction to adjudicate upon any question relating to the properties of the parties not only of the subsisting marriage but also divorced parties and the Supreme Court was pleased to hold that the reason for the enactment of the Family Courts Act, 1984, was to set up a Court to deal with all the disputes concerning with the Family and it is now a well-settled principle of law that the jurisdiction of a Court created specifically for the resolution of disputes of certain kinds should be construed liberally.

Wife has remarried

Counsel submitted that the wife was remarried and in view of there was no question of any lump sum permanent alimony.

Bench observed that

A divorced Muslim woman is entitled to receive, from her husband, inter alia, “maintenance”, “reasonable and fair provision”, “Mahr” etc. under Section 3 of the Act, 1986.

Permanent Alimony

Bench stated that what is significant to note is that the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding. It is an incidental relief claimed in the main proceeding, though an application is necessary for claiming it.

The Supreme Court had the occasion to consider the question whether a Muslim woman obtaining a divorce under the provisions of the Act, 1939 is entitled to maintenance under Section 125 CrPC, and it was held in Zohara Khatoon v. Mohd. Ibrahim, (1981) 2 SCC 509 that there are three distinct modes in which a dissolution of marriage can be brought about and Clause(b) of the Explanation to Section 125(1) envisages all the three modes, whether a wife is divorced unilaterally by the husband or where she obtains divorce under the other two modes, she continues to be a wife for the purpose of getting maintenance under Section 125 of the Code.

The Supreme Court held that divorce resulting from the dissolution of marriage under the provision of Dissolution of Muslim Marriage Act, 1939 is also a legal divorce under the Mohammedan law by virtue of the Statute (1939 Act).

Conclusion

Bench observed that when the Court would make an award of permanent alimony or for one-time payment, it is not founded on any stipulation that any part of the sum would be either actually refunded in whole or in part. Such sum is not granted on the condition against remarriage for all times to or for any particular period.

The permanent alimony in a way is an estimated sum in a lump sum to discharge the judgment debtor from his future liabilities unconditionally.

The grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation to the spouse to maintain her so long as she enjoys the continued status of a divorcee.

On remarriage status of divorcee comes to an end and she acquires another marital status as someone’s spouse. Under the Act, 1986 as under Section 125 CrPC, the wife includes a divorcee.

In view of the above discussion, it can be said that:

when the wife remarries, her claim of maintenance primarily comes to stand against her new husband coming into existence in a new relationship.

The proposition of law laid down by the Court should be looked into keeping in mind Section 3(1)(a) of the Act, 1986.

A divorced woman is entitled to ‘a reasonable and fair provision” and “maintenance” to be made and paid to her within and post the Iddat period by her former husband.

Point-wise Conclusion of the decision:

  • After the Act of 1939, a wife had a statutory right to obtain a divorce from her husband through the Court on proof of the grounds mentioned in the Act.
  • The ex-wife, having obtained a divorce from her erstwhile husband under the provisions of the Act, 1939 is entitled to the reasonable and fair provision under Section 3 of the Act, 1986.
  • The Family Courts Act has in its comprehension all community including the Muslims. All disputes between the Muslim community within the purview of the Family Courts Act are to be settled by the Family Courts.
  • Dispute contemplated by Section 3 of the Act, 1986 is within the purview and four corners of the Family Courts Act as the dispute under Section 3 of the Act, 1986 also relates to matrimonial relations between the parties.
  • Right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution.
  • The Law contemplates that the husband has two separate and distinct obligations; (I) to make “reasonable and fair provision” for his divorcee wife and (ii) to provide “maintenance” for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in the discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.
  • Provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.
  • The permanent alimony in a way is an estimated sum in a lump sum to discharge the husband from her future liabilities unconditionally.
  • If the wife gets remarried, her status of divorcee comes to an end and the liability of the husband to pay periodical maintenance would also come to an end.

Another significant observation of the High Court was which was placed by the counsel for the parties was that the appellant had remarried way back in the year 2014. Before the respondent herein instituted the proceedings in the Family Court for divorce, the husband had already remarried and raised a family. The appellant could do so because polygamy is permissible amongst the Muslim Community. It does not constitute an offence of bigamy punishable under Section 494 of the Penal Code.

The materials on record indicated that the husband hardly paid anything towards maintenance. The respondent had to leave her matrimonial home soon after the marriage, i.e., sometime in 2010. Ultimately, she was constrained to institute the proceedings of divorce in the Family Court. Even during the pendency of such proceedings, nothing was paid to the wife. The wife, ultimately, succeeded before the Family Court in getting the marriage dissolved and was also successful in getting an order of permanent alimony. The husband now cannot turn around and say that he is not liable to pay the lump sum amount because the respondent is remarried.

Hence, in Court opinion, the Family Court’s line of reasoning ad the ultimate conclusion that was drawn by the family court was just and proper.

Therefore the appeal was dismissed.[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLine Guj 711, decided on 19-03-2020]


Advocates who appeared for the parties:

Nishant Lalakita for Appellant 1

Javed S Qureshi for Appellant 1

SP Majmudar for Defendant 1

Shashvata U Shukla for Defendant 1

Case BriefsHigh Courts

Kerala High Court: A Full Bench of A.M. Shaffique, Sunil Thomas and Gopinath, JJ., held that there is no limitation period for wife/divorced wife to claim her property entrusted to husband/in-laws given in the form of dowry or otherwise.

Questions involved was:

Whether trust created by a wife entrusting her property to her husband gets extinguished after the dissolution of marriage and whether she can initiate proceedings invoking Section 10 of the Limitation Act, 1963 without any limitation of time?

For the above-stated question, reference was made to the decision of Bindu K.P. v. Surendran C.K., [2018 (2) KHC 1] wherein it was held that claim of the wife or ex-wife for a dowry is not barred by any length of time.

Counsel for the appellant Sri S.K. Balachandran placed the following decision before the Court:

    • Swapna v. Thankavelu, 1990 SCC OnLine Ker 168: – In the above case, a Single Judge of this Court held that when valuable articles are entrusted by the wife to the husband for safe custody, the husband remains in the position as a trustee who is bound to account to the wife all her properties at any time when she demands. The aforesaid judgment was delivered following the Supreme Court judgment in Pratibha Rani v. Surajkumar, (1985) 2 SCC 370. It was further held that if the husband is a trustee, the wife is entitled to follow the property in the possession of the trustee, and Section 10 of the Limitation Act would apply.
  • Chacko v. Annamma, (1985) 2 SCC 370: – In this case, the Division Bench of this Court approved Swapna’s case stated above. In the above case, on a detailed analysis of the relevant provisions including Section 10 of the Limitation Act and the provisions of the Trusts Act, overruling an earlier judgment in Annamma v. Thressiamma, 1971 SCC OnLine Ker 86, it was held that there is a creation of trust in respect of stridhanam property and therefore Section 10 applies.
  • In Bhatacharjee v. Sarathi Choudhury, 1993 SCC OnLine Ker 13, while considering the impact of Section 12 of the Protection of Women from Domestic Violence Act, 2005, the Supreme Court held that as long as the status of the aggrieved person remains, and the stridhanam remains in the custody of the husband, the wife can put forth a claim under Section 12 of the Act.

Question involved in the above reference was the following:

When there is a change in circumstances between the spouses, especially when there is a dissolution of marriage and substantial time had elapsed, whether the trust created between them would be extinguished?

Section 10 of the Limitation Act states as follows:

“10. Suits against trustees and their representatives- Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.

Explanation.-For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.”

In view of the decisions referred above, it is settled that,

when the wife entrusts with the husband any property belonging to her, a trust is created and the husband is bound to return the same to his wife. If the same is not returned, the wife has a right to demand the same by filing a suit or as in the present case, file an application before the Family Court or take other necessary steps under the relevant statutes in force.

When Section 10 of the Limitation Act indicates that there is no limitation for initiating any such action, in the absence of any other statute providing for a limitation, the trustee cannot take a contention that he shall not return the trust property on account of any period of limitation. The question posed is, when the relationship between the parties gets deranged and results in divorce, whether the trust gets extinguished and the divorced wife would be entitled to invoke Section 10 of the Limitation Act and file a suit at her will and pleasure at any point in time. In such an event, the questions to be considered are (i) whether a trust had been created at any point of time, (ii) if a trust has been created and the husband remains in the position of a trustee, whether it gets extinguished on the dissolution of marriage or under any other circumstances.

Under Section 77 of the Indian Trusts Act, 1882, a trust gets extinguished only under certain circumstances. Section 77 reads as under:

“77. Trust how extinguished.— A trust is extinguished—
(a) when its purpose is completely fulfilled; or
(b) when its purpose becomes unlawful; or
(c) when the fulfilment of its purpose becomes impossible by the destruction of the trust-property or otherwise; or
(d) when the trust, being revocable, is expressly revoked.”

Hence, unless any of the above-stated eventualities as mentioned take place, which is a question of fact to be decided on a case to case basis and once a trust is created, it continues to operate, even though marriage is dissolved. However, in an instance where there is an agreement between the parties settling the obligations arising from the trust, it gets fulfilled in terms of Section 77(a).

As per the Dowry Prohibition Act, 1961, when a statutory trust is created in respect of dowry, the principle aforestated shall apply.

Further, the Court added that, in the case of ornaments which are given in the form of dowry, definitely, a statutory trust is created. Even otherwise, if the ornaments owned by the wife do not form part of the dowry and if there is an entrustment of gold ornaments by the wife to the husband or his parents, a trust gets created, in which event, the trustee or trustees, as the case may be, are liable to return the same and there is no limitation for claiming the same by the wife/divorced wife.

In light of the above, the Court agreed with the law laid down in Chacko v. Annamma, (1993) 1 KLT 675 and upheld the view expressed in Bindu K.P. v. Surendran C.K., [2018 (2) KHC 1]. [Sheela K.K. v. N.G. Suresh, 2020 SCC OnLine Ker 4240, decided on 24-09-2020]

Case BriefsHigh Courts

Allahabad High Court: Pradeep Kumar Srivastava, J., while addressing the present matter, observed that:

… right of maintenance available to wife from husband is an absolute right and even divorce cannot affect this right unless the wife is disqualified on account of remarriage or her sufficient earning.

It was also observed:

Gender justice is a constitutional promise and the provision of maintenance provided under Section 125 of the Code is one of the tools to translate the constitutional promise into social reality. Moreover, Article 21 of the Constitution guarantees every person a right to live with dignity and a dignified life is not possible unless a fair and reasonable provision is made by the husband towards the maintenance of his divorced wife. Therefore, while interpreting and applying this beneficial legislation, the Constitutional vision of equality, liberty and justice, more particularly social justice to the women and marginalized sections of society, must be present when the courts are dealing with an application of destitute wife or helpless children and aged and infirm parents. Social justice adjudication or social context adjudication requires application of equality jurisprudence where the parties to a litigation are unequally situated in terms of socio-economic structure and dilution of the technical procedure often followed in adversarial system.

Instant criminal revision was preferred against the impugned judgment passed by Family Court under Section 125 of the Criminal Procedure Code, 1973 by which OP 2 – Divorced Wife was awarded Rs 3,000 as maintenance.

Before the Court below, the wife gave an application under Section 125 CrPC stating that she was married to revisionist according to the Muslim Personal Law and later during the course of her marriage, her husband and his family demanded motorcycle, refrigerator and dowry and on non-fulfilment of the same, she was beaten up and expelled along with her daughter. On being expelled she along with her daughter started living with her parents.

The wife was totally dependent on her father, later after the death of her father she was facing financial trouble and was not able to maintain herself, hence she claimed maintenance.

Present revision was filed by the husband challenging the impugned judgment on the ground that earlier a case under Section 125 CrPC for maintenance which was filed by wife was decided wherein the maintenance claim of the wife was rejected on the ground that being Muslim she was not entitled for maintenance after divorce beyond period of iddat and by this impugned judgment, the said judgment has been reviewed, which is contrary to law.

Revisionist’s Counsel contended that divorced Muslim wife is not entitled to maintenance under the law applicable to parties and the subsequent application is barred by the principle of res judicata.

In Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, the issue before the court was that where a Muslim woman had been divorced by her husband and paid her mahr, would it indemnify the husband from his obligation to pay maintenance under the provisions of Section 125 CrPC. A five-Judge Constitution Bench of the Supreme Court held that the Code of Criminal Procedure controls the proceedings in such matters and overrides the personal law of the parties and in case of conflict between the terms of the Code and the rights and obligations of the individuals under personal law, the Code would prevail.

In the above-cited case, the important feature of the case was that the wife had managed the matrimonial home for more than 40 years and had borne and reared five children and was incapable of taking up any career or independently supporting herself at that late stage of her life and remarriage was an impossibility in that case. The husband, a successful Advocate, with an approximate income of Rs 5,000 per month provided Rs 200 per month to the divorced wife, who had shared his life for half a century and mothered his five children and was in desperate need of money to survive.

Supreme Court interpreted the provisions of the Act and Section 125 CrPC in such a way as to give recognition to the right of divorced Muslim wife to claim maintenance under Section 125 even for the period beyond iddat period and for the whole life unless she is disqualified for the reasons such as entering into marriage with someone else.

Hence, in view of the above Court found no force in the argument that a divorced Muslim wife is not entitled to maintenance beyond the iddat period.

Section 125 of the Code of Criminal Procedure has been enacted to achieve a social object and the object is to prevent vagrancy and destitution and to provide speedy remedy to deserted or divorced wife, minor children and infirm parents in terms of food, clothing and shelter and minimum needs of one’s life.

 Bench held that when the Supreme Court has interpreted and clarified the law and has laid down that the Muslim divorced wife can still claim maintenance under Section 125 CrPC despite the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, her claim cannot be defeated on the basis of an earlier decision of the court below and the earlier judgment cannot operate as res judicata.

Court while concluding its decision held that:

Section 125 of the Criminal Procedure Code has been enacted with a specific purpose to protect women and children and to prevent vagrancy and destitution among them. This law is not community-centric or religion centric and perhaps, one of the most secular enactment ever made in the country. It is an instrument of social justice and aims to render justice on the basis of equality to wife, in particular, may be divorced including a divorced Muslim wife.

In view of the above, the revision petition was dismissed and the Family Court’s decision was upheld. [Jubair Ahmad v. Ishrat Bano, 2019 SCC OnLine All 4065, decided on 18-10-2019]

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., dismissed a criminal revision application filed against the order of the trial court whereby the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, filed by the divorced wife of the applicant-husband was allowed and he was directed to pay her and their daughter, a monthly allowance of Rs 7,500 and Rs 5000 respectively. He was also directed to pay his divorced wife, a compensation of Rs 1 lakh and costs amounting to Rs 2,000.

Shorn of details, the facts of the matter were that the parties were married to each other, who obtained a mutual divorce a few years after their marriage. Subsequently, the divorced wife filed a civil suit challenging the decree of divorce, alleging that the divorce was obtained by fraud and misrepresentation. The said civil suit is pending. She also filed an application under Section 12 of the DV Act before the Magistrate, wherein she averred that despite the passing of the divorce decree, she continued to cohabit with the applicant-husband in the same household as husband and wife along with their daughters, for a period of ten long years. The Magistrate found the fact of cohabitation as averred by the divorced wife was sufficiently proved. He also found that there was reliable evidence to substantiate her allegations of domestic violence. Accordingly, the Magistrate passed the impugned order mentioned above. Applicant’s appeal to Sessions Judge was also dismissed. Thus, the instant revision application.

At the outset, the High Court noted that since, admittedly, the civil suit filed by the divorced wife had not yet reached finality, one could only proceed on the premise that there was a decree of divorce between her and the applicant.

The Court distinguished the case Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588 on facts, in as much as in the instant case, both the courts below had demonstrated as to how prima facie the decree of divorce was not acted upon and the couple, i.e., applicant and the divorced wife, had continued to cohabit in the same abode in spite of such a decree. It was held: “There was ample evidence before the two Courts below to come to a plausible conclusion that though the decree of divorce was obtained in the year 2000, the Applicant and respondent 1 had continued to cohabit in the same household. If that was the case, she was indeed entitled to file a proceeding under Section 12 of the DV Act.”

in such a view of the matter, the High Court did not find any fault with the orders passed by the courts below. Accordingly, the instant revision was dismissed. [Atmaram v. Sangita, 2019 SCC OnLine Bom 3909, decided on 05-11-2019]

Case BriefsHigh Courts

Calcutta High Court: Madhumati Mitra, J. dismissed an application filed by the petitioner to quash the order of the Additional Sessions Judge whereby he refused to stay the petition filed by his former wife for the execution of the maintenance order granted in her favour by the Magistrate.

By the order passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005, the Magistrate had directed the petitioner to pay Rs 3000 + Rs 800 per month to his former wife. Subsequent to that order, the petitioner obtained an ex-parte divorce decree against his former wife. After the said decree, the petitioner filed an application under Section 25, praying for alteration/modification or revocation of the maintenance order on the ground that he is not liable to pay to his former wife as no domestic relationship between them subsist.

Before the High Court, the petitioner was represented by Siva Prosad Ghose, Chandra Bhanu Sinha and Rohit Kumar Shaw, Advocates. Per contra, the former wife was represented by Anand Kesari and Sekhar Mukherjee, Advocates.

After referring to the relevant provisions of the DV Act along with Section 125 CrPC, and a conspectus of cases on the subject, the High Court observed: “Decree of divorce does not deprive the wife of the relief granted in her favour under the provisions of the Act of 2005. After decree of divorce, the Opposite Party 2 has become a divorced wife.”

The Court was of the opinion that our law recognises the right of a divorced wife to get maintenance till her remarriage, under Section 125 CrPC. The DV Act provides additional rights and remedies to the aggrieved person.

Finally, it was noted: “Existence of domestic relationship is not needed to execute the order granted under Section 12 of the Act of 2005 and the divorced wife who got an order of maintenance and other relief under the Act of 2005 prior to the decree of divorce is entitled to execute the same if she is unable to maintain herself and she has not remarried and for other reasons.”

In such view of the matter, the Court decided the application against the petitioner, and accordingly dismissed the same.[Krishnendu Das Thakur v. State of W.B., 2019 SCC OnLine Cal 969, decided on 28-06-2019]

Case BriefsHigh Courts

Bombay High Court: M.G. Giratkar, J. refused to interfere with an order of the Judicial Magistrate as confirmed by the Sessions Judge, whereby the application filed by the applicant under Section 12 and 18 of the Protection of Women from Domestic Violence Act, 2005 was dismissed.

The applicant married to the respondent in 1999, However, a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 had been passed by the family court in 2008 at the instance of the husband. The application under the DV Act was filed by the applicant in 2009, i.e., subsequent to the grant of divorce. The respondent resisted the application on the ground that there was no “domestic relationship” between them and therefore any application under DV Act was not maintainable. The application was rejected by the Judicial Magistrate as well as the Sessions Judge. Aggrieved thereby, the applicant filed the present revision application.

Amruta A. Ghonge, Advocate led arguments for the applicant. Per contra, R.N. Sen, Advocate appearing for the respondent, resisted the application.

After perusing a conspectus of decisions of the Supreme Court as well as High Courts, the Court came to the conclusion that no relief could be granted to the applicant. It was observed: “In the present case, divorce was granted by the family Court vide order dated 30-06- 2008. Application under the DV Act was filed in the year 2009. At the time of filing of application under the DV Act, the applicant was not the wife. There was no domestic relationship between them. Hence, orders passed by the learned JMFC, Nagpur and maintained by Additional Sessions Judge, Nagpur in Criminal Appeal No. 235 of 2015 are perfectly legal and correct.” In such view of the matter, the revision application was dismissed. [Sadhana v. Hemant, 2019 SCC OnLine Bom 659, decided on 18-04-2019]