Shaikh Rizwan Hasim Vs Tabasum Nesha — Maintenance and Alimony | Orissa HC (2024)

Shaikh Rizwan Hasim Vs Tabasum Nesha — Maintenance and Alimony | Orissa HC (2024)

What the court decided

AI extract

Outcome

None to the Petitioner; the impugned maintenance directions (Rs.7,000/- per month to the wife and Rs.3,000/- per month to the minor child from 20th November, 2015) stand upheld.

Issue for consideration

Whether a divorced Muslim woman is entitled to claim maintenance under Section 125 Cr.P.C. where no option has been exercised under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (raised via the Petitioner's plea that she received Talaq, Meher was returned, and hence she is not entitled to maintenance). +1 more

Court's answer

On the strength of the categorical holding of the Hon'ble Supreme Court in Shabana Bano (supra) that even a divorced Muslim woman is entitled to claim maintenance from her divorced husband as long as she does not remarry, and treating the provision as beneficial legislation whose benefit must accrue to the divorced Muslim woman, this Court holds that an application under Section 125 Cr.P.C. is maintainable in the absence of any option under Section 5 of the Act; the plea of non-exercise of option was never raised before the learned Judge, Family Court-II, Bhubaneswar.

Ratio / Principle

No infirmity in the impugned judgment: the Family Court rightly took note that the Petitioner serves in the Indian Army, earning a monthly salary of Rs.40,000/- with other benefits, and enjoys free fooding, free quarter and free medical treatment, in directing maintenance of Rs.7,000/- per month to the wife and Rs.3,000/- per month to the minor child; the RPFAM is therefore devoid of merit and stands dismissed.

Detailed headnote1 paragraphs

Orissa High Court (K.R. Mohapatra, J.), RPFAM No. 37 of 2023, order dated 21.03.2024 — Challenge to judgment dated 19.12.2022 (Annexure-11) of the Judge, Family Court-II, Bhubaneswar in Criminal Proceeding No.217 of 2015 directing the petitioner-husband to pay maintenance of Rs.7,000/- per month to his divorced wife (Opposite Party No.1) and Rs.3,000/- per month to the minor child (Opposite Party No.2) from 20.11.2015. HELD: As categorically held by the Hon'ble Supreme Court in Shabana Bano v. Imran Khan, even a divorced Muslim woman is entitled to claim maintenance from her divorced husband under Section 125 Cr.P.C. as long as she does not remarry; the provision being beneficial legislation, its benefit must accrue to the divorced Muslim woman, and the application is maintainable in the absence of any option under Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 — a plea never raised before the Family Court. The Petitioner, admittedly serving in the Indian Army with a monthly salary of Rs.40,000/- besides free fooding, free quarter, free medical treatment and other benefits, could not fault the award; no infirmity in the impugned judgment. RPFAM dismissed. (Counsel for the Opposite Parties noted a pending Section 127 Cr.P.C. enhancement application and an application for attachment of the Petitioner's salary.)

IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM NO. 37 OF 2023

Shaikh Rizwan Hasim

…. Petitioner

Mr. S.S. Mohapatra, Advocate

-versus-

Tabasum Nesha and another

…. Opp. Parties

Mr.Dhananjaya Nayak, Advocate

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

21.03.2024

This matter is taken up through hybrid mode.

Although this matter is listed for orders, but on consent

of learned counsel for the parties, the same is taken up for final disposal.

Judgment dated 19^th December, 2022 (Annexure-11) passed in Criminal Proceeding No.217 of 2015 is under challenge in this RPFAM, whereby leaned Judge, Family CourtII, Bhubaneswar directed the Petitioner to pay maintenance of Rs.7,000/- per month to the Opposite Party No.1-wife and Rs.3,000/- per month to the Opposite Party No.2-minor child from the date of application, i.e. 20^th November, 2015.

Learned counsel for the Petitioner submits that relationship between the parties is not disputed. However, parties are Muslims. Opposite Party No.1 has been given Talaq by the Petitioner following due procedure of law, which has been registered. The ‘Meher’ amount of Rs.15,525/- was also returned to the Opposite Party No.1 through Bank draft. As such, she is not entitled to any maintenance. He further submits

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that Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short ‘the Act’) postulates that parties may exercise their option to opt for maintenance either under Section 125 Cr.P.C. or under the provisions of the Act. In this case, no option has been exercised by the parties to opt for maintenance under Section 125 Cr.P.C. Hence, she is not entitled to any maintenance under Section 125 Cr.P.C.. It is his submission that the Opposite Party No.1 has not filed her affidavit of assets and liabilities. Thus, petition filed by her should have been dismissed.

Learned counsel for the Opposite Parties submits that amount of maintenance directed to be paid by learned Judge, Family Court-II, Bhubaneswar is grossly insufficient for which an application under Section 127 Cr.P.C. has been filed, which is pending for consideration. The Petitioner is also not paying maintenance regularly. Thus, an application has been filed for attachment of salary of the Petitioner to get maintenance as directed by learned Judge, Family Court-II, Bhubaneswar regularly. In view of the ratio decided in the case of Shabana Bano –v- Imran Khan in Criminal Appeal No.2309 of 2009 (arising out of SLP (Crl.) No.717 of 2009), a divorced Muslim woman is also entitled to claim maintenance under Section 125 Cr.P.C. Hence, learned Judge, Family Court-II, Bhubaneswar has committed no error in allowing the petition, but the maintenance awarded is grossly insufficient for the Opposite Parties to maintain themselves.

Taking into consideration the submissions made by learned counsel for the parties, this Court finds that in the case of

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Shabana Bano (supra), the Hon’ble Supreme Court has categorically held that even a divorced Muslim woman is entitled to claim maintenance from her divorced husband as long as she does not remarry. This being a beneficial piece of legation, the benefit thereof must accrue to the divorced Muslim woman. Thus, application under Section 125 Cr.P.C. is maintainable in absence of any option under Section 5 of the Act. Such a plea was never raised before learned Judge, Family Court-II, Bhubaneswar. Admittedly, the Petitioner is serving in Indian Army and his monthly salary is Rs.40,000/- along with other benefits. Learned Judge, Family Court-II, Bhubaneswar taking note of the fact that the Petitioner being an Indian Army personnel is enjoying free fooding, free quarter, free medical treatment along with other benefits directed to pay maintenance, as stated above. Thus, I find no infirmity in the impugned judgment.

Accordingly, the RPFAM being devoid of any merit stands dismissed.

Urgent certified copy of this order be granted on proper application.

bks

(K.R. Mohapatra) Judge

Signature Not Verified

Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, C utta ck Date: 21-Mar-2024 20:01:40

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