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| When petitioner is not a Muslim divorce, she is entitled to maintenance: CJ | | | EARLY TIMES REPORT
JAMMU, November: 18 (JNF):- In a revision petition filed by one Marriyam Akhter wife of Wazir Mohd Justice Dr. Aftab H Saikia of Jammu & Kashmir High Court in a landmark judgment observed that the petitioner is not a Muslim divorcee of the husband/respondent and she is entitled to get her maintenance in terms of Section 488 Cr. P. C and this Court does, accordingly, uphold the maintenance granted to the petitioner by the Trial Court by its initial order dated June 24, 1995.
The fact of the case is that the petitioner married Wazir Mohd on May 12, 1991 and the marriage between them was solemnized according to Muslim rites (Sharah Mohmdi). After marriage, both of them lived like husband and wife at the respondent’s residence. The petitioner’s marriage life experienced turbulence. She was meted out ill-treatment by the respondent. The respondent used to beat her and made false allegations of unchastity on her. She was driven out of her husband’s house five and half months after the marriage and, on the relevant time, she was pregnant. The respondent also snatched her ornaments and clothes and did not care to look after her till date and she was compelled to stay at her parental house, since she was turned out from her matrimonial house. Meanwhile, she had born a female child. Even after the birth of their daughter, the respondent refused to pay any maintenance either to the petitioner or to her baby. The petitioner on November 4, 1992, initiated proceeding under Section 488 of the Code of Criminal Procedure for granting maintenance allowance of Rs. 1000/- per month to her and Rs. 500/- per month to her daughter. On June 22, 1994 the respondent, on being noticed, appeared before the Court and granted opportunities to file objections from June 22, 1994 to September 24, 1994. On October 17, 1994, being an adjourned date, neither the respondent nor his engaged counsel appeared in the Court and their absence resulted in ex-parte proceedings against the respondent. Meanwhile, the respondent moved a revision petition before this High Court for transfer of the present petition, but the same was dismissed by the High Court.
Finally, the matter was heard on June 24, 1995 and after having considered the evidence and arguments on behalf of the petitioner, maintenance allowance of Rs. 350/- per month and Rs. 250/- per month were granted to the petitioner as well as petitioner no. 2, daughter of the petitioner respectively. Being dis-satisfied with the granting of such maintenance, respondent-husband moved the Court of Sessions Judge, Udhampur by filing a revision petition, which was dismissed. It is pertinent to mention herein that meanwhile, the respondent has contracted second marriage and has been living with his second wife and a daughter has been born to his second wife from him.
On August 8, 1995 respondent made an application before the Magistrate for setting-aside the ex-parte order of maintenance granted by order dated June 24 1995. That the applicant Marriyam Akhtar in the absence of the applicant respondent concealed the fact that she had been divorced vide divorce deed dated May 18, 1992.
The Magistrate by order dated February 22, 2002 considered the statements in the application as well as upon hearing the parties, found that the petitioner was divorced on August 8, 1995 or May 18, 1992 as stated in the application for seeking to set aside the exparte order dated June 24, 1995, the order dated February 22, 2002 challenged the High Court.
In this landmark judgment Chief Justice Dr. Aftab H Saikia observed that the issue raised in the instant revision petition, it is considered that the judgment will be benefited if the status of Muslim women, vis-à-vis, the scope and effect of valid divorce as mandated under the Mohammadan law is highlighted. During the early period of Islam, Muslim women were held in high esteem and they occupied exalted positions and in the days of Holy Prophet Mohammad, a Muslim woman was given in the society a position of equality with the opposite gender. Even, in the terms of modern concept of giving gender justice, which is essential, integral and inseparable part of human rights, women, who form one half of the human race, have every right to claim equality before law and equal protection of laws as envisaged under Article 14 of the Constitution of India. Therefore, when women have the right to marry, they have also the right to be maintained by their husbands. This right has been emphasized in Article 6(1) of Universal Declaration of Human Rights adopted and proclaimed by the General Assembly of the United Nations on 10th December 1948.
However, in post-Islamic period, it is seen that the degradation and degeneration set in, in the status of women. In male-dominated world, Muslim women were pushed to the whims and fancies of the men- folk and this is reflected primarily in the case of dissolution of marriage, i.e., divorce, which is known as “Talaq” in Arabic meaning. The doctrine of talaq-ul-bidet (triple talaq-one form of talaq) was evolved as a convenient divorce to dissolve the marriage at the will and whims of the Muslim husband.
Chief Justice in the approved for reporting judgment after hearing Adv Nirmal Kotwal for the petitioner whereas Adv SS Ahmed for respondents husband observed that The instant revision petition witnesses the deliberation of these fundamental issues pertaining to the validity of the pronouncement of the divorce to a Muslim woman, vis-à-vis, her entitlement to maintenance, as married woman. "maintenance” includes food, raiment and lodging (Mulla-Mohammedan Law, para-369). In 2002 by amendment of the Code of Civil Procedure, 1908, Section 89 has been incorporated providing for settlement of the disputes, outside the Court by adopting primarily four methods, namely, (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat, or (d) mediation, which are popularly coined as alternative dispute resolution(ADR) mechanism. So it is evident that the process of reconciliation has to be given priority as well as importance in the present days. In view of above, it is essential that dissolution of Muslim marriage by way of divorce or talaq must be based on reconciliation as mandated by Quranic text followed by commentaries on the topic by the various eminent legal personalities. With these observations Chief Justice further observed that impugned judgment and order being not in consonance and deserves interference and the same is, accordingly, set aside and quashed and consequently, held that the petitioner is not a Muslim divorcee of the husband/respondent and she is entitled to get her maintenance in terms of Section 488 Cr. P. C and this Court does, accordingly, uphold the maintenance granted to the petitioner by the Magistrate by its initial order. It is further provided that order dated December 10, 2002 passed by this Court as regards granting interim maintenance to respondent no. 2, daughter of the parties, is hereby made absolute. Liberty is also granted to petitioner no. 1 to approach the appropriate Forum/Authority, if she desires further increase in her maintenance allowance, if so advised. With these observations revision petition filed by the wife is, accordingly, allowed. JNF
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