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Mohammad Reyazul v. Smt. Anisa Begum - APPLICATION U/s 482 No. 1305 of 1988 [2007] RD-AH 5220 (23 March 2007)


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Criminal Misc. Application No. 1305 of 1988

Mohammad Riyajul Arfin Vs. Smt. Anisa Begum.


Hon'ble V.D.Chaturvedi, J.

This petition under section 482 Cr.P.C. has been filed by the petitioner Mohd. Riyajul Arfin to quash the orders dated 20.8.87 passed by Addl.Musif  Magistrate, Jhansi in Case No. 126 of 1987 and the order dated 23.12.1987 passed by the Sessions Judge, Jhansi in Criminal Revision No. 167 of 1987.Both of these orders were passed under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act).

The brief facts are that a divorce between the petitioner and the opposite party Smt. Anisa Begum took place on 7.2.1983 (the copy of Talaq Nama is Annexure 10 to the petition). The opposite  party filed a petition for maintenance and other reliefs provided under section 3 of the Act. The learned Munsif  Magistrate  by his order dated 20.8.87 allowed the petition which was challenged by the petitioner before the Sessions Judge in Crl. Revision No. 167 of 1987. The said revision was dismissed on merit hence this petition.

I have heard Sri R.K.Pandey holding brief for Sri S.K.Shukla, the learned counsel for the petitioners and Sri S.P.Sharma learned A.G.A. .The argument of the   learned counsel for the petitioner  is that the divorce between the petitioner and the opposite party took place on 12.2.1981 (however according to Annexure 10 it is 7.2.1983) but the petition for maintenance etc under section 3 of the Act was filed in September 1986 more than 5 years after the divorce; that the maintenance was to be paid within Iddat period and not after the Iddat period. He argued that since the Iddat period had expired long before the filing of the petition by the opposite party, therefore, the petition was time barred and deserved to be dismissed on this sole ground.

The word "within the Iddat Period" occurring in Clause (a) of sub-section (1) of Section 3 of the Act cannot be read independently and apart from the other relevant words occurring in the section. The relevant words may be produced as below-

"(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;"

Thus the word "within" is used to insist that the divorced  woman was entitled to get the reasonable and fair provision and maintenance for the period of Iddat. The same thing finds support from sub section 2 and  sub Section 3 of Section 3 of the Act. Section 2 provides that if the same has not been paid to a divorced  woman she may make an application to a Magistrate for an order for payment of such provisions and maintenance. Sub section 3 of Section 3 of the Act lays down that  if the Magistrate is satisfied that her husband having sufficient means has failed or neglected to make or pay her within the Iddat period a reasonable and fair provision and maintenance for her, he may make an order directing the husband to pay the same.

The divorced woman is, thus, authorised to file the petition only if such maintenance has not been paid to her within Iddat period. The question whether the maintenance for the Iddat period, was paid or not may be decided only after the expiry of the period of Iddat. The husband may pay the said maintenance on any day but within the period of Iddat and if he fails to pay it within the days of Iddat,  a divorced woman may file the petition after the expiry of the period of  Iddat.  In the like manner the Magistrate may pass an order for the payment of maintenance or for reasonable and fair provision  if he is satisfied that the husband has failed to pay the same within the days of Iddat period .

The contention of the learned counsel for the petitioner  that the petition should have been filed within the period of Iddat,   is not sustainable at all.   The finding given on this score by the revisional Court suffers from no infirmity and needs no interference.

The learned counsel for the petitioner  further  argued that opposite party has remarried hence she was not entitled for the relief awarded by the court of Magistrate.

The learned trial court has given a finding that the wife has not remarried. This finding of fact was not disturbed by the revisional court. The concurrent finding of two courts below, cannot be disturbed in a  petition under section 482 Cr.P.C.,  unless there is any manifest error. There is no such error in that finding, hence I decline to enter into the said finding of fact.

No other point is raised by the petitioner's counsel.

On the basis of what has been discussed above this petition has no merit and is hereby dismissed.




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