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Farhan Haji Gafar Gudda VS Rijwanaben Usmanbhai Patel

This Case is all about a married couple who ended up getting divorced. After their divorce, the wife left the house to go live serperately. When she left the house, she also took her son along with herself.

4 months after the divorce, she realised it was pretty tough to live alone and also take care of her minor son, so she filed an application in the Judicial Magistrate claiming maintenance from the said husband with a sum total amount of 2000 rupees per month where 1500 rupees goes to the wife and 500 rupees goes to the son.

However since this was an unfair treatment, the husband filed a petition against this order. The wife and the husband parted ways because it was natural it was mentioned under the Muslim Law. The said case was taken to the Gujarat High court on 8th March 2013 to come to a conclusion.

This is a classic divorce and maintenance case. The only reason the husband filed against the application order of his own wife was because the divorce had already happened and the child was during wedlock and both of them parted ways with consent.

Facts Of The Case:
The petitioner issued a suitable writ to pass an order for a criminal miscellaneous application number 90 of 2010 by the honourable court of judicial Magistrate First Class, Upleta (District Rajkot) as stated in the order. It was later revoked and overturned.

Then the petitioner was aggrieved by the order that was passed by the judicial Magistrate under Section 125 of code of Criminal procedure.

The petitioner goes by the name Farhan Haji Gafar Gudda and the respondent goes by the name Rijwanaben Usmanbhai Patel

In this case that is Farhan Haji Gafar Gudda vs Rijwanaben Usmanbhai Patel, the respondent is the divorced wife of the petitioner. The divorce between them came to a conclusion in November 2009 and since then the wife that is the respondent stays separately with her minor son also called respondent no. 2 who was born from the wedlock with the petitioner.

Wedlock means it is the state of being married : marriage, matrimony.

Out of wedlock means with the natural parents not legally married to each other.

Respondent no. 2 stays with his mother separately because of the divorce.

The petitioner pointed out that his marriage was solemnised according to Muslim Law and their divorce should also be in accordance with Muslim Law.

The wife is not able to maintain herself and her minor son around 4 months after their divorce, she filed a respective application that seeks maintenance for herself as well as her son under Section 125 of the code of criminal procedure. The learned Magistrate has allowed for maintenance for both the wife as well as her son that is respondent no.1 and respondent no.2.

The code has awarded a sum total of about 2000 rupees a month within which 1500 rupees goes to respondent no.1 that is the wife and 500 rupees goes to the son that is respondent no.2. The divorced husband felt this application order that was passed was super unfair and hence this petition.

This order was challenged on the most single and solitary ground that in view of the provisions under the Muslim Women Protection Of Rights on Divorce Act,1986 so Section 125 of the code of criminal Procedure cannot be invoked and applied in case of a divorced Muslim woman and any order directing payment of maintenance to a Muslim Woman who is divorced by her husband cannot be passed under Section 125 of the code of criminal procedure.

After the divorce, the application filed in the judicial Magistrate regarding the maintenance came to be registered as criminal Miscellaneous Application No.90 of 2010

This said application was finalised in September 2011

A minor means an individual who is under the age of full legal responsibility which perfectly describes respondent no. 2 that is the wife's son

A wife means a married woman considered in relation to her spouse

The order of the maintenance of wives, children and parents goes:
  1. His wife unable to maintain herself
  2. His legitimate or illegitimate minor child whether married or not
  3. His legitimate or illegitimate minor child who has attained majority where such child is by reason of any physical or mental abnormality or injury unable to maintain itself
  4. Father or mother unable to maintain himself or herself
The judicial Magistrate may order the the father of the unit female child to make such an allowance for maintenance until she attains her majority

  • Whether the petitioner is liable to pay an maintenance amount to the wife?
  • Whether the petitioner is also liable to pay an maintenance amount to his son as well during wedlock?
  • Whether the maintenance amount is confined to the Iddat period?
    (The iddat period is the period in which a woman must observe after the death of her husband or after a divorce, during which she may not marry another man)
  • Whether the case is civil in nature?

Section 125 of the code of criminal procedure:
Order for maintenance of wives, children and parents.

Section 3 (1) (a) of the special marriage Act of 1954:
For the purposes of this Act, the State Government may, by notification in the Official Gazette, appoint one or more Marriage Officers for the whole or any part of the State.
  1. Neither party has a spouse living
  2. neither party:
    1. Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
    2. Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children
    3. Has been subject to recurrent attacks of insanity
  3. The male has completed the age of twenty-one years and the female the age of eighteen years
  4. The parties are not within the degrees of prohibited relationship: Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnised, notwithstanding that they are within the degrees of prohibited relationship
Section 3 of Divorce act of 1869:
Of whose jurisdiction under this Act the marriage was solemnised or the husband and wife reside or last resided together

Section 4 of Divorce Act of 1869:
Matrimonial jurisdiction of High Courts to be exercised subject to Act. Exception.- The jurisdiction now exercised by the High Courts in respect of divorce and in all other causes, suits and matters matrimonial, shall be exercised by such Courts and by the District Courts subject to the provisions in this Act contained, and not otherwise

Case Analysis:
This case deals with divorce and maintenance as a whole.

When the divorce took place, the wife filed an application against the husband trying to claim 2000 rupees every month for which 1500 goes to her and 500 goes the child.

These textbook assertions are insufficient to support the idea that a Muslim husband is not required to support the maintenance of his divorced wife who is unable to support herself. To ascertain the extent of the husband's obligation to support an impoverished wife whom he has divorced, both in terms of quantum and induration, one must take into account the entirety of the Muslim Personal Law. As a sign of respect for his wife, the husband is required by that rule to give the wife Mahr.

It is true that he may give his wife any amount as a dower, but it cannot be less than 10 Dir hams, which is equal to three or four Rupees (Mulla s Mahomedan Law, 18th Edition, para 286, page 308). Mahr is a sign of respect for the wife, but one must take into account the realities of life. The Mahr settlement is typically anticipated to cover the wife's regular expenses both during and after the marriage. However, these Muslim Personal Law requirements do not take into account situations where the woman is unable to support herself after the divorce.

We believe that expanding the application of the remarks extracted above to situations in which a divorced woman is unable to support herself is not only erroneous but also unjust. We believe that the circumstances in which there is no risk of vagrancy or destitution due to the divorced wife's indigence should be excluded from the application of such legal statements. The broad and general question of whether a husband is required to support his wife, including a divorced wife, in all situations and under all circumstances is not the subject of this discussion. That isn't what Section 125 is about.

That Section deals with situations where a person with ample resources neglects or refuses to provide for others, including his wife who is unable to provide for herself. It would be incorrect to hold that the Muslim husband, according to his personal law, is not at all obligated to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself.

This is because the Muslim Personal Law limits the husband's liability to provide for the maintenance of the divorced wife to the period of iddat and because she is unable to support herself, the appellant's claim that his obligation to pay for his divorced wife's maintenance is only obligated during the iddat term in accordance with Muslim Personal Law must be denied. The actual situation is that, if the divorced wife is capable of supporting herself, the husband's obligation to do so ends after the iddat term expires. She is allowed to use Section 125 of the Code if she is unable to support herself.

The conclusion of this discussion is that, with regard to the obligation of the Muslim husband to give support for a divorced wife who is unable to maintain herself, there is no conflict between the provisions of Section 125 and those of the Muslim Personal Law.

In Moh.Ahmed Khan v. Shah Bano Begam, the Supreme Court ruled that if the divorced lady can support herself, the husband's liability ends with the end of the iddat term. However, if she is unable to do so, she is allowed to use Section 125 of the Code of Criminal Procedure, 1973.

The aforementioned ruling has generated significant debate regarding the Muslim husband's duty to support the divorc�e wife. The Muslim Women (Protection of Rights on Divorce) Bill was submitted in the Parliament in an attempt to weaken the ruling made in the aforementioned case.

The Supreme Court ruled in Mohd. Ahmed Khan v. Shah Bano Begum and Others (AIR 1985 SC 945) that, despite the Muslim law's limitation of the husband's obligation to pay for the divorced wife's maintenance to the period of iddat, the situation envisioned by Section 125 of the Code of Criminal Procedure is not contemplated or permitted under the Muslim law. The Court determined that it would be improper and unfair to apply the aforementioned Islamic law norm in situations when the divorced wife is unable to support herself.

The Court therefore came to the judgement that if the divorced woman can support herself, the husband's liability ends when the term of iddat expires, but if she is unable to do so after the period of iddat, she is entitled to use Section 125 of the Code of Criminal Procedure, 1973. (2 of 1974).

In addition to mahr and maintenance for the iddat period, Section 3(1)(a) of the Act incorporates mata as a right of the divorced Muslim woman. A reasonable and fair provision, as defined in Section 3(3) of the Act, would be with reference to the needs of the divorced woman, the means of the husband, and the standard of living the woman experienced during the marriage. There is no reason why such a provision should not be made.

First, it is clear from the use of two different verbs in Section 3(1)(a) of the Act that a fair and reasonable provision is to be made while maintenance is to be paid; second, Section 4 of the Act, which gives the magistrate the authority to order the payment of maintenance to the divorced woman against various of her relatives, makes no mention of provision. Undoubtedly, the right to a fair and reasonable provision in her favour is a right that can only be enforced against the woman's ex-husband and is in addition to the maintenance payments he is required to make.

Thirdly, although Yusuf Ali's translation of the Holy Quran's word mata as maintenance may be inaccurate and other translations used the word provision, this Court disregarded this feature in the Shah Banos case by concluding that it was a distinction without a difference. There could be no pretence that the husband in the Shah Banos case had given his divorced wife any kind of mata, whether it was maintenance or sustenance.

The Gujurat High Court held that A Muslim husband is required to provide for the divorced wife's future in a reasonable and equitable manner, which certainly includes paying for her maintenance as well. According to Section 3(1)(a) of the Act, such a reasonable and fair arrangement that extends beyond the iddat time must be made by the husband within the iddat period.

The obligation of a Muslim husband to support his divorced wife that results from Section 3(1)(a) of the Act is not limited to the iddat period.

A divorced Muslim woman who has not remarried and is unable to support herself after the iddat period may take legal action against her family, including her children and parents, who are obligated to support her in proportion to the assets they will receive upon her death under Islamic law. The Magistrate may order the State Wakf Board established by the Act to provide maintenance if any of the relatives are unable to do so.

Civil actions are brought under Section 125 of the Criminal Procedure Code. Given the advantageous nature of the legislation, the Court is free to treat the case as a petition under the Act even if he learns that there was a divorced lady involved. The same court hears cases brought under Section 125 of the Criminal Procedure Code and claims made under the Act. Hence all the issues have been resolved respectively.

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