Bombay High Court

Bombay High Court

Shahnaz Bano D/O Aslam Khan (Smt.) vs Babbu Khan S/O Nanhekhan Pathan ... on 22 August, 1985
Equivalent citations: 1985 (2) BomCR 765
Author: S Puranik
Bench: S Puranik
JUDGMENT
S.W. Puranik, J.
1. The applicant wife had instituted proceedings against her husband non-applicant No. 1 Babbu Khan under
section 125 of Criminal Procedure Code claiming maintenance from him on the ground that he has refused
and neglected to maintain her after divorce and that she was unable to earn her own livelihood.
2. Non-applicant husband contested the proceedings on the ground that there was no ill-treatment meted out to
her, that she had voluntarily deserted the husband and that on going to her parent's house she had sent a letter
dated 30th October, 1981 whereby she herself demanded a divorce in the form of Khullanama after waiving
her claim for dower money and for future maintenance. The non-applicant, therefore, contended that it was in
response to her demand that he issued talaqnama dated 3-11-1981 giving her irrevocable divorce. According
to the non-applicant therefore, the applicant wife was living separate of her own accord and had waived her
right to mehar amount and maintenance. She was, therefore, not entitled to claim maintenance under section
125 Criminal Procedure Code.
3. The proceedings before the trial Court were registered as Criminal Case No. 39 of 1981 on the file of
Judicial Magistrate, First Class, Nagpur and by his decision dated 13-5-1983, he allowed the application of the
wife and directed the husband to pay a sum of Rs. 200/- per month as maintenance.
4. The non-applicant husband preferred Criminal Revision No. 564 of 1983 before the Additional Sessions
Judge, Nagpur. The said revision was allowed by the Sessions Judge on 13-9-1984 and the order awarding
maintenance was set aside. Being aggrieved by this order in revision, the original applicant-wife has preferred
this revision.
5. Shri S. Ziauddin, Advocate, appears for the applicant-wife, the non-applicant No. 1 husband is represented
by Shri M.H. Rizwy and Shri M.M. Gadkari, Asstt. Public Prosecutor, appears for non-applicant No. 2 State.
With the assistance of the Counsel of both the parties, I have gone through the records and papers of the case
as well as the impugned judgment of the Sessions Judge that of the trial Judge.
6. It was contended on behalf of the applicant that admittedly, the wife has been divorced on 3-11-1981 by the
husband. The allegation that it was in respondent the Khullanama sent by the wife, is denied. According to
her, her signature was obtained on a blank paper by the husband by deceit and that blank paper has been used
to type out the Khulanama dated 30-10-1981 (Ex. 13). According to her, the talaq given by the husband is
unilateral and irrevocable. It was also contended that section 125 Criminal Procedure Code overrides personal
law in view of Explanation (b) to section 125(1) of the Code, which defines 'wife' as including a 'divorced
wife'. It does not contain any word of limitation to justify the exclusion of Muslim women from its course.
Shri Ziauddin urged that the learned Sessions Judge, while allowing the husband's revision, has only
considered the alleged khulanama as the basis to refuse the grant of maintenance to the wife.
7. On behalf of the husband, Shri Rizwy, Advocate, submitted that the trial Court has arrived at a finding that
no cruelty, refusal or neglect has been proved by the wife against the husband. It, however, found that the
Khuallanama agreement (Ex. 13) sent by the wife, appears to have been issued by her or that the contents
were not written by her. That burden, she has not discharged. The trial Court, however, found that the wife
being a divorcee and section 125 overrides the personal law even if it was a divorce by Khullanama, she was
Shahnaz Bano D/O Aslam Khan (Smt.) vs Babbu Khan S/O Nanhekhan Pathan ... on 22 August, 1985
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entitled to maintenance as she was unable to maintain herself. According to Shri Rizwy, the order of the
Sessions Judge that Exhibit 13 is duly proved and even though it may be a voidable document, the Criminal
Court will hold the same to be valid till it is set aside by regular Civil Court. Shri Rizwy, however, fairly
conceded that section 125 Criminal Procedure Code overrides Muslim personal law and even a divorcee under
Khulalaq would be included in the definition of 'wife' appearing in Explanation (b) to section 125(1). But, he
submitted that she must, in a proceeding under section 125, establish the ingredients of refusal and neglect on
the part of the husband. According to him, the facts and circumstances of the case indicate that husband and
wife are living separate by mutual consent and hence, wife is not entitled to maintenance under section 125(4)
Criminal Procedure Code.
8. It is well settled that the Revisional Court would not go into the reappreciation of evidence on merits, but
only peruse the impugned order to find out whether there is illegality or impropriety in the order which
deserves to be set right. In a given case, if the impugned order shows that material evidence has been
overlooked or the trial Court has taken into consideration materials, which are irrelevant to the revisional
Court may, in exercise of its jurisdiction, reappraise the evidence and set right the illegal order.
9. In the present proceedings, there is no dispute that the applicant wife has been divorced by the husband.
The dispute however revolves around as to whether she had voluntarily executed the Khullanama (Ex. 13) and
in response to that, the husband had given her the irrevocable divorce. A perusal of Exhibit 13 shows that the
wife has (out of frustration and disgust, written the letter and has called upon the husband to grant her
Khullanama divorce on her giving up her Mehar amount and future maintenance) only admitted the signature
in the document, but not the contents. According to the husband, he accepted the proposal of the wife and
gave her the divorce. The evidence tendered by both the parties in this regard is sketchy and cannot lead the
Court to any specific conclusion. It is however, equally true, as decided by our Division Bench in the case of
Khurshid Khan Amin Khan v. Husnabanu and others, 1976 Criminal Law Journal 1584 that the principle of
Muslim Law that a divorced wife is entitled to maintenance only during the period of iddat is not relevant
when considering the provisions of section 125 enacted by the parliament for all unprovided wives,
irrespective of their religion or caste. The parliament has the power to make an enactment that even a divorced
Muslim woman shall be entitled to maintenance so long as she remains unmarried. There is nothing in section
125 or Ch. IX of the Code, which excludes Muslim women from the benefits of section 125 which defines, for
the purpose of the Chapter, a 'wife' as including a 'woman who has been divorced by, or has obtained a
divorce from her husband and who has not remarried.' The fact that the divorce was a Khula divorce is of no
consequence because Explanation (b) to section 125 makes no distinction between Khula divorce and talaq
divorce. In view of the decision of our Division Bench, therefore, the applicant even assuming to be a
divorceable Khullanama, is entitled to claim maintenance under section 125 of Criminal Procedure Code.
10. The contention on behalf of the husband is that the basic ingredient of section 125 is refusal or neglect by
the husband . Unless that ingredient is established by the wife, coupled with the last ingredient that she is
unable to maintain herself, she would both be entitled to claim maintenance under section 125 of Criminal
Procedure Code. As regards her inability to maintain herself, both the courts agreed that the wife's evidence
that she is unable to maintain herself is not controverted on behalf of the husband. It has, therefore, to be
accepted as duly proved.
11. The other question is that the wife has not proved 'neglect' on the part of the husband. Now, admittedly,
the wife has been divorced by the husband and she is residing at the house of her father. She had issued notice
(Ex. 12) to the husband that she needs maintenance for her livelihood as she is unable to maintain herself. The
husband has not cared to provide any maintenance to her after divorce. It is his contention that by Khullanama
divorce, she has waived her right to maintenance. In Bai Tahira v. Ali Hussain Fissalli Chothia and another, ,
the Supreme Court has observed as follows :
"Section 125 requires, as a sine qua non for its application, neglect by husband or father. The Magistrate's
order proceeds on neglect to maintain; the Sessions Judge has spoken nothing to the contrary and the High
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Court has not spoken at all. Moreover, the husband has not examined himself to prove that he has been giving
allowances to the divorced wife. His case, on the contrary, is that she has forfeited her claim because of
divorce and the consent decree. Obviously, he has no case of non-neglect. His plea is his right to ignore. So
the basic condition of neglect to maintain is satisfied. In this generous jurisdiction, a broader perception and
appreciation of the facts and their bearing must govern the verdict not chopping little logic or tinkering with
burden of proof."
The Supreme Court has further observed in para 9 as follows :
"The next submission is that the absence of mutual consent to live separately must be made out if the hurdle
of section 125(4) is to be overcome. We see hardly any force in this plea. The compulsive conclusion from a
divorce by a husband and his provision of a separate residence as evidenced by the consent decree fills the
bill. Do divorcees have to prove mutual consent to live apart? Divorce painfully implies that the husband
orders her out of the conjugal home. I law has nexus with life this argument is still-born."
12. This view of the Supreme Court has been further reaffirmed in the case of Fuzlunbi v. K. Khader Vali and
another, .
13. Finally, in the latest ruling of the Supreme Court in the matter of Mohd. Ahmed Khan v. Shah Bano
Begum and others, , it has been observed in no uncertain terms that the statutory right available to her under
that section (125 of the code) is unaffected by the provisions of the personal law applicable to her. Reference
may also be made to the Division Bench judgment of Gujarat High Court in the case of Hajuben Suleman and
other v. Ibrahim Gandabhai and another, 1977 (Vol. 18) Gujarat Law Reporter 133. Therein it is observed
while discussing the provisions of section 127(3)(a), (b) & (c) as follows : "Thus, Clause (a) contemplates the
act of the wife in getting remarried and Clause (b) contemplates the act of the wife in obtaining a divorce from
her husband and surrendering her rights to maintenance after divorce. Both these eventualities, as observed
earlier, are brought about by a voluntary and irrevocable act on the part of the wife. If this is the obvious
position to be kept in mind with regard to the scope and content of Clauses (a) and (c) of sub-section (3) of
section 127, we see no reason why we should adopt a different standard in ascertaining the scope and content
of Clause (b)."
14. Considering the trend of decision of different courts in India and the Supreme Court, I am firmly of the
view that even in a case covered by Clause (c) of section 127(3) of the Code, where the wife has surrendered
her rights voluntarily, in a given case, if after waiving her rights to maintenance, the wife becomes vagrant
and destitute and is unable to maintain herself, then irrespective of her personal law, she would be entitled to
avail the statutory remedy for maintenance under section 125 Cri.P.C.
15. I have already observed above that even assuming Khulanama (Ex. 13) to have been voluntarily
despatched by the wife, yet it appears to have been written in disgust, without any intention. Further in a given
case, the wife may be in a position to maintain herself when she grants the Khulanama, but subsequently her
situation may change and she may be in financial hardships. It is for this eventuality that she would be able to
take resort to the remedy under section 125 Cri.P.C. In Fuzlunbi's case (cited supra), the Supreme Court has
also observed in para 19(3) to conclude :
"Whatever the facts of a particular case, the Code by enacting sections 125 to 127, charges the Court with the
human obligation of enforcing maintenance or its just equivalent to ill-used wives and castaway ex-wives,
only if the woman has received voluntarily a sum, at the time of divorce, sufficient to keep her going
according to the circumstances of the parties."
16. In the present case, admittedly, even if we presume that Khulanama was executed, she has not received
any quittance from her husband, in fact she had surrendered her rights to maintenance. But that is as far as her
personal law is concerned. In my opinion, under section 125 of the Code of Criminal Procedure in a given set
Shahnaz Bano D/O Aslam Khan (Smt.) vs Babbu Khan S/O Nanhekhan Pathan ... on 22 August, 1985
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of circumstances, even a wife divorced under Khulanama, if is unable to maintain herself, can take resort to
proceedings under section 125. In fact, the Court must discharge its function in the administration of justice
by granting her the maintenance irrespective of her personal law. As already observed in the opening
paragraphs, the learned revisional Court has merely set aside the order of award of maintenance in favour of
the wife on the ground that the wife had secured Khulanama divorce and was, therefore, not entitled to claim
any maintenance. That reasoning, in my opinion, is erroneous and contrary to the current trend of
interpretation of the provisions of sections 125 to 127 Cri.P.C. The impugned order, therefore, deserves to be
set aside and that of the trial Court, restored. Criminal Revision Application No. 18 of 1985 is, therefore,
allowed. The impugned order is quashed and set aside and that of the trial Court is restored.
Shahnaz Bano D/O Aslam Khan (Smt.) vs Babbu Khan S/O Nanhekhan Pathan ... on 22 August, 1985
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