Faisal Ali v. Fathimath Fousiya and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 19TH DAY OF AUGUST 2019 / 28TH SRAVANA, 1941** ## **OP(Crl.).No.156 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRRP 3/2017 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD** **AGAINST THE ORDER/JUDGMENT IN MC 329/2012 DATED 22-08-2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KASARAGOD** ## **PETITIONER/S:** **FAISAL ALI, AGED 38 YEARS S/O ABDUL RAHIMAN, RESIDING AT RAHMATH ROAD, POCHAKKAD, PALLIKKARA, HOSDURG TALUK, KASARGOD DISTRICT-671316.** **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENT/S:** **1 FATHIMATH FOUSIYA, AGED 31 YEARS D/O. MUHAMMED JADEED, RESIDING AT KOLLAMPADY MASJID ROAD, KASARGOD TALUK AND DISTRICT 671 121. 2 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **R1 BY ADV. SRI.S.JIJI** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PP** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 11.7.2019, THE COURT ON 19.08.2019 PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== O.P(Crl.) No. 156 of 2019 ================== Dated this the 19[th] day of August, 2019 ## **J U D G M E N T** The case projected in this Original Petition (Criminal) filed under Art.227 of the Constitution of India is as follows: The 1[st] respondent herein is the divorced wife of the petitioner herein. That the 1[st] respondent has secured Ext.P-1 order dated 24.5.2011 rendered by the Family Court, Kasargod, in M.C.No. 117/2010 filed under Sec. 125(1) of the Cr.P.C. by the 1[st] respondent herein and the one year old minor son born to the abovesaid couple, whereby the Family Court has directed the petitioner herein to pay maintenance to R-1 herein @ Rs. 1,500/- per month and to the minor son @ Rs. 750/- per month from the date of the petition. It appears that subsequently the 1[st] respondent had filed a petition before the learned Magistrate under Sec. 3 of the Muslim Women (Protection of Rights on Divorce) Act, wherein Ext.P-2 was order passed by the learned Magistrate on 22.8.2016 in M.C.No.329/2012, whereby the the petitioner herein has been directed to pay Rs. 10,500/- as maintenance during the _iddat_ period to R-1 herein and also that the petitioner should pay Rs. 2,30,000/- as reasonable and fair provision to R-1 herein and also to O.P(Crl.) 156/19 - : 3 :- return 25 sovereigns of gold or the present value of 25 sovereigns of gold to R-1 herein. Later, it appears that the abovesaid Ext.P-2 order dated 22.8.2016 rendered by the Judicial First Class Magistrate's Court, Kasargod, in M.C.No.329/2012 has been modified in revisional proceedings by the revisional sessions court as per Ext.P-3 order dated 28.5.2018 in Crl.R.P.No. 3/2017, whereby the impugned Ext.P-2 order herein dated 22.8.2016 rendered by the learned Magistrate was revised in part, and the direction in the said impugned order to the limited therein, whereby the petitioner herein was directed to return 25 sovereigns of gold or its corresponding value to R-1 herein has been vacated and Ext.P-2 order in all other aspects have been left intact. The petitioner would contend that in view of the passing of Ext.P-2 order by the learned Magistrate under Sec. 3 of Muslim Women (Protection of Rights on Divorce) Act, and its modification by Ext.P-3 revisional order, the petitioner is not legally liable to pay maintenance to R-1 herein in terms of Ext.P-1 order rendered under Sec. 125(1) of the Cr.P.C. The complaint of the petitioner is that now R-1 herein has filed execution petition for enforcement and execution of the impugned Ext.P-1 order passed by the Family Court under Sec. 125(1) of the Cr.P.C., in spite of passing O.P(Crl.) 156/19 - : 4 :- Exts.P-2 and P-3 orders under Sec.3 of the Muslim Women (Protection of Rights on Divorce) Act. It is in the light of these averments that the petitioner has filed the instant Original Petition (Criminal) under Art.227 of the Constitution of India with the following prayers; - _“i) To declare that in view of Exhibits P-2 and P-3 orders, the petitioner is not liable to pay maintenance to the 1[st] respondent._ - _ii) Any other reliefs which may be prayed for from time to time.”_ 2. Heard Sri.Sunny Mathew, learned counsel appearing for the petitioner herein and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the 2[nd] respondent State of Kerala. Despite service of notice, none appears for R-1. 3. At the outset, it is to be noted that there are no pleadings anywhere in this Original Petition either that the petitioner has paid all or any of the amounts due under Ext.P-1 order dated 24.5.2011 rendered by the Family Court, Kasargod, in M.C.No. 117/2010 under Sec. 125(1) of the Cr.P.C. or that he has paid all or any of the amounts due under Ext.P-2 order dated 22.8.2016 rendered by the Judicial First Class Magistrate's Court-I, Kasargod, under Sec. 3 of the Muslim Women (Protection on Divorce) Act, as modified by Ext.P-3 revisional order. The only contention raised by the petitioner herein O.P(Crl.) 156/19 - : 5 :- is that, in view of the passing of Ext.P-2 order as modified by Ext.P-3 order under the provisions of the Muslim Women (Protection on Divorce) Act, the liability of the petitioner to pay maintenance under Ext.P-1 order rendered by the Family Court, under Sec. 125(1) of the Cr.P.C. completely vanishes and that the learned Magistrate has no jurisdiction to even entertain an execution petition for enforcement and execution of Ext.P-1 order. The contention of the petitioner is that once the order under Sec.3 of the Muslim Women (Protection of Rights on Divorce) Act is passed, then the former husband has no liability whatsoever to grant maintenance to his divorced wife in respect of orders passed under Sec. 125(1) of the Cr.P.C. 4. A Division Bench of this Court in the decision in _**Kunhimohammed v. Ayishakutty**_ [2010(2) KLT 71 (D.B) = 2010(2) KHC 63] has held in para 14 of thereof that stipulations in Sec. 125 are applicable to all Indians including the followers of Islam religion and that that Muslim husbands are also made liable to pay maintenance, not only to their wives in existing matrimony but also to their divorced wives and that the Muslim husband can claim under that his liability under Sec. 125 Cr.P.C. to pay maintenance stands extinguished only if he can establish he has duly discharged the O.P(Crl.) 156/19 - : 6 :- liability to pay the amounts under the customary or personal laws applicable to him while/after effecting divorce. Further that a divorced Muslim wives' right to claim maintenance under Sec. 125 of the Cr.P.C. is not extinguished by the enactment of the Muslim Women (Protection of Rights on Divorce) Act. Further in 15 thereof the Division Bench in _**Kunhimohammed's case**_ supra, has held that prior to the passing of the amended Code in 1973, Sec. 127(3)(b) was introduced into the Code, whereby it has been stipulated that receipt of the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, would absolve the husband of his liability to pay maintenance to his divorced wife. That this provision viz., Sec. 127(3)(b), also found its way into the amended Cr.P.C. 1973 and that it appears that it is only the followers of Islam, who may be entitled to the benefit of that provision, as the attention of the Division Bench has not been drawn to the customary personal law applicable to any other communities, which mandates that payment of any amount on divorce. That it was thus held by the Division Bench that a Muslim husband can claim under Cr.P.C. 1973 that his liability under Sec. 125 of the Code must stand extinguished only if he establishes that he has O.P(Crl.) 156/19 - : 7 :- duly discharged the liability to pay amounts under the customary or personal laws applicable to him while/after effecting the discharge. In para 20 thereof, their Lordships of the Division Bench have also reiterated that the provision in Sec. 125 of the Cr.P.C. about payment of maintenance to divorced wife is a secular stipulation applicable universally to all Indians irrespective of their religious identity and that liability under Sec.125 of the Cr.P.C. can be extinguished by making payment of the amounts payable under the customary or personal law applicable to a particular community and persons owing to allegiance to Islam are the only class of persons who can take advantage of the provision contained in Sec. 127(3)(b) of the Cr.P.C. and that Muslim husbands can claim extinguishment of the liability under Sec. 125 of the Cr.P.C. on proof that the divorced wife has received such amounts as referred to in Sec. 127(3)(b) of the Cr.P.C. and on proof of such payment the liability under Sec. 125 of the Cr.P.C. on the divorced husband shall stand extinguished. It was also noted therein that there was a dispute as to what are the amounts payable under the Muslim Personal Law as Mata at the time of divorce and the Parliament has intervened and has enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, wherein O.P(Crl.) 156/19 - : 8 :- Sec. 3 of the said Act stipulates the amounts that are payable and once the amounts the said 1986 Act are paid, the liability under Sec. 125 of the Code, which has already crystallized into an order shall stand extinguished. Further that Division Bench has made it clear beyond the pale any shadow of doubt that it is not mere enactment of the 1986 Act nor the passing of the order under Sec. 3 of said 1986 Act, but only the actual payment of the amounts payable under Sec. 3 of the Act could extinguish the liability of the Muslim ex-husband under Sec. 125 of the Cr.P.C in accordance with the stipulations in Sec. 127(3)(b) of the Cr.P.C. Further, it has also been held by the Division Bench in Kunhimohammed's case supra, more particularly in paras 28 and 40 thereof that the stipulations in Sec. 3 of the Muslim Women (Protection of Rights on Divorce) Act as well as that in Sec. 125 of the Cr.P.C. can harmoniously co-exist and a divorcee husband within the period of _iddat_ has the option to pay amounts due under Sec. 3 of the 1986 Act and if he has made such payments, he can claim absolution of the liability under Sec. 125 of the Cr.P.C. with the help of the provision under Sec. 127(3)(b) of the Code. In such a situation, Sec. 127(3)(b) of the Cr.P.C. must telescope as a proviso into the main provision in Sec. 125 of the Cr.P.C. and O.P(Crl.) 156/19 - : 9 :- then Sec. 127(3)(b) of the Cr.P.C. can be read with as a proviso to Sec. 125 of the Cr.P.C. Further, that until such amounts payable under Sec. 3 of the Act are actually paid, the Muslim divorced wife is entitled to claim maintenance under Sec. 125 of the Cr.P.C. and if the amounts under Sec. 3 are paid, that would lead to absolution from liability under Sec. 125 of the Cr.P.C. by the operation of Sec. 127 (3)(b) of the Code. That not before such actual payment can a Muslim divorced husband put up Sec. 3 of the 1986 Act as a shield against the claim under Sec. 125 of the Cr.P.C. and it was reiterated that both the provisions can simultaneously and harmoniously co-exist and that the Division Bench is not in a position to accept the interpretation which would deprive the divorcees in distress of her right to efficacious remedy under Sec. 125 of the Cr.P.C. until she claims and obtains larger and superior relief under Sec. 3 of the 1986 Act and such an interpretation shall facilitate the survival on a month to month basis of the neglected divorcee until she get the amounts under Sec. 3 of the Act and shall serve the laudable motivation of the legislature in favour of such hapless woman. It is also made clear that death, remarriage or actual payment of the amounts under Sec. 3 of the 1986 Act alone shall extinguish her right under Sec. 125 of the O.P(Crl.) 156/19 - : 10 :- Cr.P.C. It will be profitable to refer to paragraphs 28 and 40 of the judgment of the Division Bench in Kunhimohamed's case supra, [2010 (2) KLT 71, p.p.83-84] which reads as follows: _“28. We further see that both the stipulations can harmoniously co - exist A divorcee husband, within the period of Iddat has the option to pay amounts due under S.3 of the Act. If he has made such payments, he can claim absolution from the liability under S.125 of the Code with the help of the provisions under S.127(3)(b) of the Code. In such a situation S.127(3)(b) of the Code must telescope as a proviso into the main section i.e., S.125 of the Code. S.127(3)(b) of the Code can then be read as a proviso to S.125 CrPC. No Court worth its salt is likely to pass an order under S.125 of the Code, if on the date of passing such order it is liable to be cancelled / vacated under S.127(3)(b) of the Code. Until the amounts payable under S.3 of the Act are paid, the Muslim divorced wife, to effectively implement the scheme of S.125 of the Code must be held to be entitled to claim maintenance under S.125 of the Code. If the amounts under S.3 of the Act are paid, that would lead to absolution from liability under S.125 of the Code by the operation of S.127(3)(b) of the Code. Not before such actual payment, can a Muslim divorced husband put up S.3 of the Act as a shield against the claim under S.125 of the Code. We note that both provisions can hence simultaneously and harmoniously co - exist. This contention, we agree, effectively repels the argument of implied repeal on the theory of the special overriding the general. If the two provisions can co - exist, we are of the view that such an interpretation must certainly be accepted which shall not deny the target group of the benefit of either provision. The target group / beneficiary under S.125 CrPC is the divorced Muslim women who are unable to maintain themselves and unless driven to the wall we should not to accept an interpretation which would deprive the divorcee in distress of her right to efficacious remedy under S.125 CrPC until she claims and obtains the larger and superior relief under S.3 of the Act. Such an interpretation shall facilitate the survival on a month to month basis of the neglected divorcee until she gets the amount under S.3 of the Act and shall serve the laudable motivation of the Legislature in favour of such helpless women._ **==> picture [159 x 6] intentionally omitted <==** _40. We do, in these circumstances, answer Question No. (i) as follows:_ _The divorced Muslim wife's right to claim maintenance under S.125 CrPC does not stand extinguished by the enactment of the Muslim Women (Protection of Rights on Divorce) Act. Her right under S.125 CrPC shall stand extinguished only when the payment under S.3 is actually made and absolution is granted by the Court under S.127(3)(b) of the Code. Till then, or till she remains a divorced Muslim wife, she_ O.P(Crl.) 156/19 - : 11 :- _will be entitled to claim maintenance from her divorced husband. Death, remarriage or actual payment of the amount payable under S.3 of the Act alone shall extinguish her right under S.125 CrPC to claim maintenance.”_ 5. In the light of the abovesaid categorical declaration of law made by the Division Bench, this Court is not in a position to grant the main reliefs sought for by the petitioner, as there are no pleadings as to whether the petitioner had paid the amounts due under Ext.P-1 order passed by the Family Court under Sec. 125(1) of the Cr.P.C. and if so, till which period and also as to whether the petitioner has actually paid all or any of the amounts due to R-1 herein as per Ext.P2 order as modified by Ext.P-3 order under Sec. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (1986 Act), and if so when? Further it is clear from the legal position well settled by the Division Bench in the abovesaid judgment that until the abovesaid amounts due under Sec.3 of 1986 Act are actually paid by the divorced Muslim husband to the divorced Muslim wife under Sec.3 of the 1986 Act, the divorced wife is entitled to get monthly maintenance amount due under the order passed by the Family Court under Sec. 125(1) of the Cr.P.C. Still further the Division Bench has also held that the liability to pay maintenance under Sec. 125(1) of the Cr.P.C. will get legally extinguished only after satisfying the abovesaid O.P(Crl.) 156/19 - : 12 :- condition and also after getting an order from the Family Court concerned under Sec. 127(3)(b) of the Cr.P.C. cancelling the earlier order passed under Sec. 125 (1) of the Cr.P.C. on the ground that the Muslim divorced husband has actually paid the entire benefits payable under the order passed under Sec. 3 of the 1986 Act. In the absence of specific pleadings in that regard in this Original Petition, this Court is not in a position to grant any of the main prayers sought for in this Original Petition. However, liberty is given to the petitioner to work out his remedies in accordance with the above referred legal position and it is for the petitioner, then to file appropriate application before the Family Court concerned under Sec. 127(3)(b) of the Cr.P.C. after making the divorced wife as party therein and to convince the Family Court that necessary requirements for cancellation of the earlier Sec. 125(1) maintenance order is called for on fulfillment and satisfaction of the abovesaid requirements. With these observations and directions and with the said liberty, the above O.P(Crl.) will stand finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** O.P(Crl.) 156/19 - : 13 :- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF ORDER DATED 24.5.2011 IN M.C.117/2010 PASSED BY THE FAMILY COURT, KASARGOD.** **EXHIBIT P2 A TRUE COPY OF ORDER DATED 22.8.2016 PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS I, KASARGOD.** **EXHIBIT P3 TRUE COPY OF ORDER DATED 28.5.2018 PASSED BY THE COURT OF SESSION, KASARGOD.**