Sk. Pear Ali vs Serajun Nehar and another

Ashim Kumar Banerjee, J.—Short question involved in these two revisional applications is were a divorce Muslim woman is entitled to maintenance u/s 25 of the Code of Criminal Procedure during her life time so long she does not remarry. In one matter, the issue found favour in an affirmative decision in favour of the wife before the Court below against which the husband has approached me. The other matter is yet to be disposed off finally.

The learned Counsel submits that the provision of section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (25 of 1986), inter alia, provides that at the time of divorce a reasonable and fair provision for maintenance to be made and paid to her within the iddat period by her husband. The said section was reasonably interpreted by the Apex Court in the case of Shabana Bano v. Imran Khan, 2010 (1) R.C.R.(Criminal) 158 : 2009 (6) R.A.J. 580: 2010 (85) AIC 227 (SC) : 2010 LXVIII ACC 284 The Apex Court after considering all earlier decisions pertaining to the issue including the Constitution Bench judgment in the case of Danial Latifi and Another Vs. Union of India, held that the Muslim divorced wife was entitled to maintenance so long she would not remarry.

I have heard Mr. Bagchi, learned Counsel appearing for the petitioner in CRR 287 of 2011 and Mr. Chowdhury, learned Counsel appearing for the petitioner in CRR 2867 of 2007.

Mr. Bagchi has drawn my attention to the decision in the case of Shabana Bano (supra) and Danial Latifi (supra). He has referred to other decisions on the issue in the case of Iqbal Bano v. State of U.P., 2007 (3) R.C.R.(Criminal) 297 : 2007 (3) R.A.J. 447: 2007 (55) AIC 4 (SC): LVIII 2007 ACC 824 He has also drawn my attention to another Two Bench decision in the case of Sahebkhan K. Malek v. Jamilasranu S. Malek and another, 2002 (3) Crimes 233 (SC).

On a combined reading of the aforesaid decisions, in my view, the decision in the case of Shabana Bano (supra) was not in conflict with the Constitution Bench decision in the case of Danial Latifi (supra). In the case of Danial Latifi (supra) the Apex Court interpreted section 3 of the said Act as appropriate provision for a Muslim lady during her divorce, so that she could survive during her life time and such payment made within the iddat period. In the case of Shabana Bano (supra) the Apex Court clarified on the is sue of pay-ability and observed that the lady was entitled to maintenance u/s 125 of the Code of Criminal Procedure throughout her life time so long she would not remarry. The latter case was on the issue of pay-ability whereas the former one was for entitlement coupled with the period, within which it would be paid.

In my view, in both the cases before me the divorced Muslim ladies are entitled to maintenance provided the Court feels that Denmohor or alimony and/or maintenance paid during iddat period was not sufficient to maintain themselves throughout their life time. On a query, I have come to know that the ladies are 53 and 39 tears old respectively and there is remote chance of remarriage.

In the case of Sk. Habib Ahamed (CRR 2867 of 2007) Mr. Golam Karim Chowdhury submits that the husband is a lottery ticket seller and earns a paltry amount. It is difficult for him to make any further payment. Mr. Amit Gupta, learned Counsel appearing for the opposite party/wife however, disputes such contention and contends that the Court below accepted the assertion of the wife that the husband was earning Rs. 10,000/- per month.

I have perused the judgment. In my view, the learned Magistrate should have ventured some investigation and enquiry with regard to the income and should not have accepted the assertion of the wife, merely because the husband could not produce any supporting document.

Pertinent to note, the husband is not a salaried employee. Selling lottery tickets, in my view, may not fetch that amount as indicated above.

I feel, interest of justice would sub-serve, if I direct deposit of a sum of Rs. 50,000/- by the husband, Habib Ahamed in the State Bank of India. Barasat Branch in the name of the wife to keep in suitable interest bearing fixed deposit till the disposal of the maintenance proceeding. The wife would, however, be entitled to enjoy interest of the said amount, which would be paid to her by the Bank on periodical basis.

The judgment and order dated November 17, 2006 passed by the Judicial Magistrate, 2nd Court, Barasat, 24 Parganas (North) in case No. M-318 of 2004 is set aside. The said case is remanded back to the learned Judge for being heard afresh in the light of the observations made by me herein.

It is abundantly made clear that the learned Magistrate would re-assess the income of the husband and compare the same with the need of the wife and would fix a lumpsum amount considering the capability of the husband. In case the amount exceeds Rs. 50,000/- the learned Magistrate would give sufficient time to the husband to pay the same. The wife would be entitled to withdraw the said sum of Rs. 50,000/- after disposal of the said proceeding being No. M-318 of 2007.

In case of default in deposit of the said sum of Rs. 50.000/-. this order would stand recalled and the application being CRR 2867 of 2007 would stand dismissed.

CRR 287 of 2011

In the case of Sk. Pear Ali (CRR 287 of 2011) Mr. Bagchi on instruction volunteers to deposit a sum of Rs. 3,00,000/- with the State Bank of India. Mr. Bagchi prays for forty-five days to deposit the same. Let him deposit a sum of Rs. 1.5 lakh within a month from date and the balance Rs. 1.5 lakh within a fortnight thereafter. The entire amount should be deposited with the State Bank of India, Paschim Medinipur Branch in suitable interest bearing fixed deposit in the name of the wife.

Mr. Bagchi submits that no final order was passed with regard to maintenance. The maintenance proceeding is pending before the learned Judicial Magistrate, 2nd Court. Katwa. Let It be transferred to the learned Chief Judicial Magistrate, Paschim Medinipur, where other cases are pending.

Miscellaneous case No. 116 of 2010 (T.R. 338 of 2010) pending before the learned Judicial Magistrate, 2nd Court, Katwa is directed to be transferred to the Court of the Chief Judicial Magistrate, Paschim Medinipur and to be heard along with G.R. Case No. 37 of 2001 pending before the said Court.

Needless to say, the learned Magistrate would follow the guide-lines framed above and would expedite the process for disposal of the cases subject to his pre-occupation and convenience and maintaining seniority in the matter of registration of like cases.

The wife would be entitled to the interest payable to her on periodical basis by the Bank, subject to the result of the proceeding before the Court below. The wife would also be entitled to withdraw the said sum of Rs. 3.00,000/- after disposal of the proceeding.

In case of default of any of the deposits within the stipulated period, this order would stand recalled and the application being CRR 287 of 2011 would stand dismissed.

Both the matters being CRR 287 of 2011 and CRR 2867 of 2007 along with CRAN 618 of 2009 are disposed of accordingly.

Urgent photostat copy of this order, if applied for, be given to the parties on priority basis.