Muslim husband refused to pay maintenance by raising objection that since he has given "Talaq" to his wife, he is not liable to pay maintenance. Husband cannot refuse to pay maintenance his remedy is to move concerned magistrate under section 127 of CRPC for nullification of order of maintenance passed against him.
Madhya Pradesh High Court
Aabida Begam vs Iqbal Ahmed on 2 February, 2012
Misc. Criminal Case No.4580/2011(Passed on 2nd day of January, 2012)
The petitioner has preferred this petition under Section 482 of Cr.P.C. against the order dated 26.11.2010 passed by the learned Sessions Judge, Shahdol (Shri Jagdish Prasad Parashar) in Criminal Revision No.38/2010 by which the revision petition was dismissed and the order dated 30.3.2010 passed in MJC No.161/2009 by the Judicial Magistrate First Class, Shahdol (Smt. Sashi Singh) was confirmed.
2. The brief facts of the case are that the petitioner was granted maintenance of Rs.200/- per month vide order dated 15.7.1985. It was also admitted that the respondent did not pay the maintenance amount since the year 2007, and therefore the petitioner had approached the concerned JMFC for recovery of the maintenance amount. The 2
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respondent filed an application under Section 125(3) of Cr.P.C. with the pretext that since the petitioner was a divorcee muslim woman, she was not entitled for any maintenance and consequently the JMFC Shahdol vide order dated 30.3.2010 accepted the objection raised by the respondent and quashed the recovery proceeding. Thereafter the petitioner preferred a revision before the Sessions Judge, Shahdol. The learned Sessions Judge, Shahdol vide order dated 26.11.2010 dismissed the revision petition confirming the order passed by the JMFC concerned.
3. I have heard learned counsel for the parties in detailed.
4. Learned counsel for the petitioner has submitted that the orders passed by both the Courts below were illegal. A grave error has been committed by both the Courts below. The respondent was paying the maintenance allowance regularly for more than 23 years so that after such a delay such type of objection could not be raised and the order of maintenance became final. In such circumstances, it was prayed that the present petition under Section 482 of Cr.P.C. may be allowed.
5. On the other hand, learned counsel for the respondent has submitted that since the respondent 3
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has given talaq to the petitioner, therefore the provisions of Section 125 of Cr.P.C. are not applicable. In support of his contention, he has placed his reliance on the order passed by this Court in the case of "Smt. Shabana Bano Vs. Imran Khan" [2009(1) MPHT 516]. Similarly, it is also argued that there is a concurrent finding of both the Courts below that the petitioner is not entitled to get any maintenance amount, and therefore it was prayed that the present petition may be dismissed being devoid of any merits.
6. After considering the submissions made by learned counsel for the parties, I am of the view that at present the contention raised by learned counsel for the respondent cannot be accepted. The concurrent finding of both the Courts below can be accepted for factual position, but it cannot be accepted if an apparent error of law has been committed by both the Courts below. In the present case, it is clear that the maintenance order was passed by the competent Magistrate, which was executed in past years, but since the year 2007 the respondent was not depositing the maintenance sum. The learned judges of both the Courts below did not appreciate the provisions of Section 127 of Cr.P.C. by which it was clear that if any modification or alteration or cancellation of order was 4
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required by any of the party, then an enquiry was required under Section 127 of Cr.P.C. If the respondent has given talaq to his wife, then he cannot raise such an objection under Section 125(3) of Cr.P.C. It was for him to move the concerned Magistrate under Section 127 of Cr.P.C. for nullification of that order passed against him. There is a specific provision under Section 127 of Cr.P.C. for such modification etc., then neither the trial Court nor the Revisionary Court could brush aside the maintenance order passed in favour of the petitioner with the help of an interlocutory application. Now-a-days, the law relating to talaq is changed. It is for the respondent to establish that a valid talaq took place between the parties. Secondly, at present the definition of wife is also interpreted by the Hon'ble Apex Court that wife includes divorced wife. All such materials are to be considered before passing any such order. It is apparent that the respondent has not moved the competent Court under Section 127 of Cr.P.C., and therefore his objection under Section 125(3) of Cr.P.C. was not maintainable.
7. Both the Courts below have drastically erred in appreciation of law. If the provisions of Section 125(3) of Cr.P.C. are perused, then in those provisions, there was no scope to cancel the maintenance order, 5
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as they have done in their orders. In such circumstances, it is apparent that the petitioner is deprived from her maintenance though she has maintenance order in her favour, which is not at all cancelled under Section 127 of Cr.P.C.
8. Learned counsel for the respondent has placed his reliance on the order passed by this Court in the case of Smt. Shabana Bano (supra), but such dictum shall help him in the proceeding under Section 127 of Cr.P.C. if the respondent initiates such proceeding. Without getting sufficient evidence relating to divorce etc. it would be improper to give any opinion at present about the divorce etc. between the parties.
9. In view of the above facts and circumstances of the case, it is clear that the petitioner is deprived from her maintenance by the objection raised by the respondent in the trial Court. It is a proper case in which the extra ordinary jurisdiction under Section 482 of Cr.P.C. may be invoked. Consequently, the present petition of the petitioner is hereby allowed and the impugned orders of the both the Courts below are set aside. It is directed that the respondent shall pay the entire remaining maintenance sum to the petitioner within a period of two months from today, 6
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failing which he will be liable for all the consequences. If he wants to quash the maintenance order, then he is free to move the appropriate Court under Section 127 of Cr.P.C.
10. A copy of this order be sent to both the Courts below for compliance and necessary action. (N.K.Gupta)
Judge
02.01.2012
Ansari.
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