Thus cumulative effect of these provisions
illustrate, even if remedies are a available under
Section 4 of Muslim Women (Protection of Rights on
Divorce)Act, 1986, it will not obliterate and defuse
the provisions of Section 12 of the DV Act for a wife
to stake claim.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.562 OF 2011
Parvin Firoz Shaikh
VERSUS
Firoz Sharfuddin Shaikh,
CORAM : K.U.CHANDIWAL,J.
DATE :
27th February,2013.
Citation;2013 ALL M R(cri)3103
Petitioner No.1 Smt. Parvin was married to
Respondent No.1 Firoz. She had applied to the
learned Chief Judicial Magistrate, Osmanabad for
maintenance and consequential benefits under the
provisions of Section 12 of The Protection of Women
ig
from Domestic Violence Act, 2005 (for short, the DV
3)
Act).
The learned Chief Judicial Magistrate
allowed the application and directed the respondent
and his parents not to cause domestic violence to the
petitioners. The respondent was directed to pay an
amount of Rs.2,000/ per month to petitioner No.1 –
Parvin and Rs.1,000/ per month to Petitioner No.2
Vasim and Petitioner No.3 – Muskan, as maintenance.
The respondent was directed to pay an amount of Rs.
1,000/ per month towards rental charges for
accommodation.
4)
In Criminal Appeal No.66/2010, the learned
Additional Sessions Judge, Osmanabad allowed the
appeal and set aside the order of maintenance,
referred to above on the ground that there had been a
talaq on 9.11.2009 by Respondent No.1 to the
petitioner and the application under Section 12 of
the DV Act was moved on 24.11.2009, and not
maintainable.
Section 12 of the DV Act provides the
5)
avenues to aggrieved person for rights. Section 26
thereof reads as under :
"26. Relief in other suits and legal
proceedings,
(1) Any relief available under sections 18,
19, 20, 21 and 22 may also be sought in any
legal proceedings, before a civil Court,
family Court or a criminal Court, affecting
the aggrieved person and the respondent
whether such proceeding was initiated before
or after the commencement of this Act.
ig
(2) Any relief ref erred to in subsection
(1) may be sought for in addition to and
along with any other relief that the
aggrieved person may seek in such suit or
legal proceeding before a civil or criminal
Court.
(3) in case any relief has been obtained by
the aggrieved person in any proceedings
other than a proceeding under this Act, she
shall be bound to inform the Magistrate of
the grant of such relief."
6)
Section 36 of the said Act reads as under:
"36. Act not in derogation of any other law,
The provisions of this Act shall be in
addition to, and not in derogation of the
provisions of any other law, for the time
being in force."
7)
Section 20 contemplates monetary relief to the
aggrieved person as a result of domestic violence.
There is no inbuilt inhibition.
8)
Thus cumulative effect of these provisions
illustrate, even if remedies are a available under
Section 4 of Muslim Women (Protection of Rights on
Divorce)Act, 1986, it will not obliterate and defuse
the provisions of Section 12 of the DV Act for a wife
to stake claim. This legal position was kept in
9)
wrapper by the learned Additional Sessions Judge.
Even if the respondent has allegedly
divorced the petitioner, his liability to maintain
the wife or the children till she remarries, is not
squeezed or deflated. In fact, in the instant case,
the learned Chief Judicial Magistrate has elaborately
discussed that the divorce is not proved. The
evidence of the respondent unfolds that on 6.`10.2008
and 10.7.2009, he extended single talaq to the
petitioner Parvin by stating – "Parvin Mai Tuze Talaq
Deta hoon". He allegedly uttered last talaq on
9.11.2009 at Yedshi in presence of Lal Khan, Bashir
and Shabbir. Shabbir and Bashir supported the version
of Respondent – Firoz regarding talaq to the
petitioner, but evidence illustrate that these
witnesses had been to Parvin to insist her for
cohabitation and when she refused, the respondent
uttered a single talaq on 9.11.2009 and it was made
final. It is pertinent, wife has disputed Talaq.
10)
The Full Bench of this Court in the matter
of Dagdu Chotu Pathan Vs. Rahimbi Dagdu Pathan and
Ors – 2002 (3) Mh.L.J. 602, has explained the legal
position. The Full Bench considered the provisions of
Section 125 of Cr.P.C. And provisions of Muslim
Women (Protection of Rights on Divorce) Act, 1986 and
observed about eligibility of entitlement of the wife
to claim maintenance. The factum of talaq and the
stages, it has preceded are also required to be
proved before the court, if disputed by the wife.
Mere intention of the husband while making such
statement before the Court, cannot be accepted to be
a valid talaq from the date of such statement was
made before the Court in any form.
11)
The Hon'ble Apex Court in the matter of
Shabana Bano Vs. Imran Khan 2010 (1) SCC 666 : 2009
DGLS (Soft) 1281, explained the legal position in
tune with Muslim Women (Protection of Rights on
ig
Divorce) Act, and in particular Sections 4 and 5
thereof. The Hon'ble Lordships in paragraphs 27, 29
and 30 has observed as under,
"27. The appellant's petition under
Section 125 of the Cr.P.C. would be
maintainable before the Family Court as
long as appellant does not remarry. The
amount of maintenance to be awarded
under Section 125 of the Cr.P.C. cannot
be restricted for the iddat period only.
29. Cumulative reading of the relevant
portions of judgments of this Court in
Danial Latifi (supra) and Iqbal Bano
(supra) would make it crystal clear that
even a divorced Muslim woman would be
entitled to claim maintenance from her
divorced husband, as long as she does
not remarry. This being a beneficial
piece of legislation, the benefit
thereof must accrue to the divorced
Muslim women.
30. In the light of the aforesaid
discussion, the impugned orders are
hereby set aside and quashed. It is held
that even if a Muslim woman has been
divorced, she would be entitled to claim
maintenance from her husband under
Section 125 of the Cr.P.C. after the
expiry of period of iddat also, as long
as she does not remarry."
The Constitution bench in the matter of
12)
Danial Latifi Vs. Union of India – 2001 AIR (SC)
3958 in paragraph 36 observed as under :
"36. While upholding the validity of
the Act, we may sum up our conclusions:
ig
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(1)(a) of the Act.
2) Liability of Muslim husband to his
divorced wife arising under Section
3(1)(a) of the Act to pay maintenance
is not confined to iddat period.
3) A divorced Muslim woman who has not
remarried and who is not able to
maintain herself after iddat period can
proceed as provided under Section 4 of
the Act against her relatives who are
liable to maintain her in proportion to
the properties which they inherit on
her death according to Muslim law from
such divorced woman including her
children and parents. If any of the
relatives being unable to pay
maintenance, the Magistrate may direct
the State Wakf Board established under
the Act to pay such maintenance.
4) The provisions of the Act do not
offend Articles 14, 15 and 21 of the
Constitution of India."
13)
Thus, the talaq must be for a reasonable
cause; it should not be at the whims and fancies of
the husband. The object and scope of the DV Act is to
ensure maintenance to those, who need such protective
shelter from the person under an obligation. The
petitioner obviously has to maintain two children out
of the wedlock, infirm, embattled and hapless.
Naturally, the whims of the husband/respondent would
not be permitted to deflate the provisions of the DV
Act, which provides a room to claim maintenance,
notwithstanding the effect of Section 4 of the Muslim
Women (Protection of Rights on Divorce) Act, 1986.
In V.D.Bhanot Vs. Savita Bhanot – 2012 (2)
14)
Bom.C.R.(Cri.) 362, the Supreme Court considered the
provisions of Section 12, 18, 19 of the DV Act and
observed, the provisions of the Act would come into
operation in the light of Section 3 of the Act with
retrospective effect. The conduct of parties in past
of coming into force of the Act has a bearing on
application under Section 12 of the Act.
15)
In the set of above facts, I have no
hesitation to hold that the provisions of the DV Act
would operate the field for staking claim even to a
divorced muslim woman/wife in terms of Section 12
thereof, until she remarries. To repeat, in the
instant case, the evidence of talaq itself is scanty
and could not be accepted.
16)
In the result, the order of learned
Additional Sessions Judge, Osmanabad in Criminal
Appeal No.66/2010 dated 19.5.2011 is set aside and
that of the learned Chief Judicial Magistrate
Osmanabad dated 26.8.2010 is maintained with costs.
Rule is made absolute in the aforesaid
terms.
sd/
(K.U.CHANDIWAL)
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