Husband challenged concurrent orders granting maintenance to his wife under Section 125 CrPC, contending she was not entitled to maintenance as a divorced Muslim woman under Section 5 of the 1986 Act. Relying on Mohd. Abdul Samad, the High Court held Section 125 CrPC applies to divorced Muslim women and dismissed the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
248 CRM-M-43631-2018(O&M) Date of order: 04.11.2024
Abdul Rashid …..Petitioner(s) Vs. Kausar Parveen …..Respondent(s) CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:Mr.Mansur Ali, Advocate for the petitioner. Mr. Saqib Ali, Advocate for respondent No.2. ***** Nidhi Gupta, J.
Present petition under Section 482 Cr.P.C. is file d seeking iss u ance of an appropriate ord e r or direction quashing th e impugned o r der dated 18.09.2018 (Annex u re P3) passed by the learne d Sessions Ju d ge, Sangrur, whereby Criminal Revision No.71 of 05.03.201 8 titled as “Ab d ul Rashid Vs. Kausar Parveen” f iled by the petitioner, has bee n dismissed a n d Criminal Revision No.100 o f 30.03.2018 titled as “Kausa r Parveen Vs. A bdul Rashid” filed by the resp o ndent has been dismissed.
Judicial M a gistrate, 1st Class, Malerko t la was challenged by th e petitioner/h u sband before the learned Ses s ions Judge, Sangrur by way o f Criminal Re v ision No.71 of 05.03.2018; an d the second Revision Petitio n No.100 of 30.03.2018 was filed by t he respondent/wife seekin g enhanceme n t of maintenance so grant e d to her vide order date d
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02.02.2018. Both the said Revision petition s including the Criminal Revisio n No.71 dated 05.03.2018 filed by the petiti o ner have been dismissed vid e the second i m pugned order dated 18.09.20 1 8 (Annexure P3) passed by th e learned Sessions Judge, Sangrur.
“5. Option to be governed by t he provisions of section 125 t o 128 of Act 2 of 1974.
If, on the date of the first heari n g of the application under sub - section (2) of section 3, a di v orced woman and her forme r husband declare, by affidavi t or any other declaration i n writing in such form as may b e prescribed, either jointly o r separately, that they would p refer to be governed by th e provisions of sections 125 to 128 of the Code of Crimina l Procedure, 1973 (2 of 1974), and file such affidavit o r declaration in the court hearin g the application, the Magistrat e shall such application dispose a c cordingly.
Explanation:- For the purposes o f this section, "date of the firs t hearing of the application" m eans the date fixed in th e summons for the attendanc e of the respondent to th e application.”
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the case file in great detail.
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the parties s tarted residing separately sin c e 26.06.2015. Present petitio n under Section 125 Cr.P.C. was filed by the r e spondent in 2015.
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manner. In s upport, the petitioner had als o referred to the statement o f Iftka-Ul-Hus s ain RW4 who had proved the deed of divorce dated 29.03.2016 M ark R1. In this regard, finding s of the learned Sessions Judg e are contain e d in Para 12 and 13 of the i mpugned judgment of the ld. Sessions Co u rt dated 18.09.2018, which are as follows:-
“12…The other important asp e ct of the present case is Abdu l Rashid claimed that he has given divorce to Kausar Parvee n and to prove this fact, he has e xamined Iftka-Ul-Hussain RW- 4 who has proved Talaknama M ark- R1. The Urdu documen t alongwith its translation is p laced on file. During cross - examination, this witness con c eded that this Talaknama wa s not scribed in his presence. No date is mentioned thereon. Th e revisionist Abdul Rashid did no t sign in his presence. He furthe r stated that he has no persona l knowledge regarding the fact s written in the Talaknama. He f urther stated that he does no t know if the copy of Talaknama was sent to Kausar Parveen o r not. Even otherwise, under th e provisions of Section 125 O f Criminal Procedure Code, eve n a divorced wife is entitled t o claim maintenance from her h usband till she is re-married. Therefore, the claim of Kausar Parveen cannot be declined o n the basis of said Talaknama M a rk-A. Moreover, the validity o f this document cannot be decid e d in the present case.
13. In the case in hand, there is no dispute that Abdul Rashid i s Urdu Professor in Governmen t College, Malerkotla. He als o conceded that he is owner of a g ricultural land and two house s in village BinjokiKhurd. His s a lary is proved on record b y examining Asha Kiran AW-3 ac c ording to which his gross salar y is Rs.1,49,855/-. The aforesai d facts clearly show that Abdu l Rashid is a man of means. On t he other hand, Kausar Parvee n initially claimed that she was a house wife, but later on it cam e
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on record that she was work i ng as Anganwari Worker. He r salary is proved by examining K ulwinder Singh AW-3 accordin g to which she is getting meagre salary of Rs. 5631/-. The salar y of Kausar Parveen is not suf f icient to meet with the dail y expenses of life. Abdul Rashid a s RW-2 admitted that a wife i s entitled to live with the same status as that of her husband. Therefore, considering the fina n cial position of Abdul Rashid, i t cannot be said that salary o f Rs. 5631/- earned by Kausa r Parveen as Anganwari worker i s sufficient to lead decent life a s that of her husband. Therefore, her claim under Section 125 o f Criminal Procedure Code canno t be declined…”.
to prove his d ivorce from the respondent.
“What emerges from our sep a rate but concurring judgment s are the following conclusions:
a) Section 125 of the CrPC a pplies to all married wome n including Muslim married wom e n. b) Section 125 of the CrPC ap p lies to all non-Muslim divorce d women.
c) Insofar as divorced Muslim women are concerned, - i) Section 125 of the CrPC app l ies to all such Muslim women, married and divorced under the Special Marriage Act i n addition to remedies available u nder the Special Marriage Act.
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ii) If Muslim women are marr i ed and divorced under Musli m law then Section 125 of the C r PC as well as the provisions o f the 1986 Act are applicable. Option lies with the Musli m divorced women to seek reme d y under either of the two law s or both laws. This is because t h e 1986 Act is not in derogatio n of Section 125 of the CrPC but i n addition to the said provision.
iii) If Section 125 of the CrPC i s also resorted to by a divorce d Muslim woman, as per the def i nition under the 1986 Act, the n any order passed under the p rovisions of 1986 Act shall b e taken into consideration under S ection 127(3)(b) of the CrPC.
d) The 1986 Act could be res o rted to by a divorced Musli m woman, as defined under the s aid Act, by filing an applicatio n thereunder which could be dis p osed of in accordance with th e said enactment.
e) In case of an illegal divorce a s per the provisions of the 201 9 Act then,
i) relief under Section 5 of th e said Act could be availed fo r seeking subsistence allowanc e or, at the option of such a Muslim woman, remedy unde r Section 125 of the CrPC coul d also be availed.
ii) If during the pendency of a p etition filed under Section 12 5 of the CrPC, a Muslim woman is ‘divorced’ then she can tak e recourse under Section 125 of t he CrPC or file a petition unde r the 2019 Act.
iii) The provisions of the 2019 A c t provide remedy in addition t o and not in derogation of Sectio n 125 of the CrPC.”
04.11.2024 (Nidhi Gupta) Sunena Judge Whether speaking/reasoned Yes/No Whether reportable Yes/No
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1 issue framed by the court
Whether a divorced Muslim wife claiming maintenance under Section 125 CrPC is barred by Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Colour shows how this judgement treated each authority
Mohd. Abdul Samad Vs. The State of TelanganaRelied on¶13
Criminal Appeal No.2842 of 2024 decided on 10.07.2024
3 provisions across 2 enactments
Abdul Rashid
Kausar Parveen
Nidhi Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
