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Judgments of Supreme Court of India and High Courts

Mohd. Hasan vs Kaneez Fatima on 5 July, 2018

1 W.P. No. 17973/2016

HIGH COURT OF MADHYA PRADESH :
JABALPUR

1 Case No. Writ Petition No. 17973/2016

2 Parties Name Mohd. Hasan Vs. Kaneez Fatima

3 Date of Judgement 05/07/2018

4 Bench Constituted on Hon’ble Single Bench
Justice….. and Hon’ble
Justice……

5 Judgement delivered by Hon’ble Ms. Justice Vandana
Hon’ble Justice……. Kasrekar

6 Whether approved for Yes
reporting
7 Name of counsels for parties Shri Ishteyaq Husain, learned
counsel for the petitioner.
Shri Ashok Kumar Gupta, learned
counsel for respondent No. 1.

8 Law laid down “Whether a Mulsim Women is
entitled to get maintenance under
Section 24 of the Hindu Marriage
Act” Held – No.

9 Significant 6 and 7
paragraph numbers
2 W.P. No. 17973/2016

HIGH COURT OF MADHYA PRADESH : JABALPUR

SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR

WRIT PETITION NO. 17973/2016

Mohd. Hasan
Vs.
Kaneez Fatima

Shri Ishteyaq Husain, learned counsel for the
petitioner.
Shri Ashok Kumar Gupta, learned counsel for
respondent No. 1.

ORDER

(05.07.2018)

The petitioner has filed the present petition,

under Article 227 of the Constitution of India, challenging

the order dated 20.08.2016 passed by 2nd Civil Judge

Class-I, Sirmour, District Rewa in Civil Suit No. 64-

A/2015 whereby the trial Court has allowed the application

preferred by the respondent under Section 24 of the Hindu

Marriage Act.

3 W.P. No. 17973/2016

2. The petitioner/plaintiff filed a civil suit for

restitution of conjugal rights before the Civil Judge Class-I,

Sirmour, District Rewa. During the pendency of the said

civil suit, the respondent/non-applicant filed an application

under Section 24 of the Hindu Marriage Act without

specifying the enactment for grant of maintenance

pendente lite during the pendency of the case and also for

legal expenses. The petitioner filed reply to the said

application raising plea that the parties are governed by the

Muslim Law and, therefore, the provisions of Section 24 of

the Hindu Marriage Act is not at all applicable in the

present case. The trial Court vide order dated 20.08.2016

has allowed the said application. Being aggrieved by that

order, the petitioner has filed the present petition.

3. Learned counsel for the petitioner argues that

the trial Court has erred in allowing the application filed by

the respondent under Section 24 of the Hindu Marriage Act

when the parties are governed by the Muslim Law. He

further submits that there is no provision like Section 24 of
4 W.P. No. 17973/2016

the Hindu Marriage Act under the Muslim Law for

claiming the interim maintenance during the pendency of

the matrimonial proceedings, therefore, the trial Court has

travelled beyond its jurisdiction in allowing the application

under Section 24 of the Hindu Marriage Act. He further

argues that the trial Court has further erred in invoking the

provision of Section 151 of the C.P.C while allowing the

application under Section 24 of the Hindu Marriage Act.

He submits that the Code of Civil Procedure is a

procedural law and did not provide for any substantive

rights like one for claiming maintenance. Thus, the

impugned order passed by the trial Court is perverse and

liable to be dismissed. He further submits that the Family

Court has allowed the Cr.R. No. 1444/2017 preferred by

the respondent under Section 125 of the C.P.C. and in

which she has already getting the maintenance an amount

of Rs.2,500/- per month. Learned counsel for the petitioner

relied on the judgment passed by the High Court of

Bombay in Criminal Appeal No. 727/1984, decided on
5 W.P. No. 17973/2016

August 24, 1984 in the case of Shabbir Ahamed Sheikh

Vs. Shakilabanu w/o Shabbir.

4. On the other hand, learned counsel appearing

on behalf of the respondent supports the order passed by

the trial Court and submits that the order passed by the trial

Court is just and proper. He further submits that the trial

Court has inherent power under Section 151 of the C.P.C

for granting such relief to the respondent. He further relied

on the judgment passed by the High Court of Judicature

at Bombay, Nagpur Bench in W.P. No. 3232/2010.

5. Heard learned counsel for the parties and

perused the record.

6. From perusal of the record, it reveals that the

petitioner as well as the respondent are belongs to the

Muslim community. They entered into the marriage,

however, due to some dispute between them the respondent

started residing separately from the applicant. The

petitioner, therefore, filed a suit for restitution of conjugal

rights before the Civil Judge Class-I Sirmour, District
6 W.P. No. 17973/2016

Rewa. The respondent/non-applicant filed an application

under Section 24 of the Hindu Marriage Act for grant of

maintenance pendente lite during the pendency of the case.

The petitioner filed reply to the said application and

submits that the parties are Muslim and are governed by

their respective personal law and, therefore, the provisions

of Section 24 of the Hindu Marriage Act is not at all

applicable in the present case. The trial Court vide

impugned order has allowed the application preferred by

the respondent under Section 24 of the Hindu Marriage Act

and awarded the maintenance of Rs.2,500/- per month to

the respondent. Being aggrieved by this order, the

petitioner has filed the present petition. Admittedly, both

the parties are Muslim and are governed by their personal

law. Under the Muslim law, there is no provision for

awarding the maintenance pendente lite, it is only provided

under the Hindu Marriage Act. However, if the respondent

wants the interim maintenance, then she is entitled to file

an application under Section 125 of the Cr.P.C before the
7 W.P. No. 17973/2016

Family Court.

7. In the present case, as the parties are Muslim,

therefore, provisions of Hindu Marriage Act would not be

applicable in the present case. So far as, Section 151 is

concerned, it provides only for the procedural law and not

for the substantive rights and, therefore, no order of

maintenance can be passed under Section 24 read with

Section 151 of the C.P.C.

8. The Bombay High Court in the case of

Shabbir Ahamed Sheikh (supra) in paragraphs 4 8 has

held as under:-

“4. It would be clear from
reading Article 278 reproduced above
that the right to sue for maintenance is
given to the wife under the Mahomedan
Law only if her husband neglects or
refuses to maintain her without any
lawful cause. Why I am emphasising
this aspect is because under the Hindu
Law before or after its codification in
section 18 of the Hindu Adoptions and
Maintenance Act the wife by her status
8 W.P. No. 17973/2016

as such had a right of being maintained
by her husband which in other words
was her vested or substantive right.

However, under the Mahomedan Law
there is no such vested or substantive
right of maintenance which is clear from
the fact that the wife can get
maintenance only on determination of
the circumstances mentioned in Article
278 by the competent Court and also
from the fact that the Court is not
entitled to pass any decree for past
maintenance unless there is an
agreement between the parties to that
effect.

With this background I may
proceed to examine the cases which are
relied upon by the parties before me.
The learned counsel for the wife has
relied upon the cases of Calcutta High
Court, viz., Smt. Gouri Gupta
Chaudhury vs. Tarani Gupta
Chaudhaury (: AIR 1968 Cal. 305),
Nemi Chand Jain vs. Smt. Lila Jain (:
AIR 1968 Cal. 405), and Tarini Gupta
9 W.P. No. 17973/2016

Choudhari vs. Smt. Gouri Gupta
Choudhary (AIR 1968 Cal. 567). He has
also relied upon the decision of the
Mysore High Court in Ramappa Parappa
Khot vs. Courawwa (AIR 1968 Mys.

270). However, he heavily relies upon
the decision of this Court reported in
Sushilabai Chhotelal Gupta vs.
Ramcharan Hanumanprasad Vaishya
and another (: 1976 Mh. LJ. 82).

8…………….However, the claim in
the instant case is different. The
plaintiff/husband sues the wife for
restitution of conjugal rights on the
ground that she has deprived him of
cohabitation without any reasonable or
probable cause. The defence raised by
the wife is that she was driven out by the
husband and that she was ill-treated by
him. As I have already as I had pointed
out under the Mahomedan Law the right
conferred upon the wife is to sue for
maintenance and unless she establishes
that her husband has neglected her or
refused to maintain her without any
10 W.P. No. 17973/2016

reasonable cause she is not entitled to a
decree for maintenance. Further it has to
be seen that she is not entitled at all to a
decree for past maintenance, unless the
claim is based on a specific agreement.
All these things have to be proved in a
suit properly filed for maintenance by
the wife. Unless these are proved under
the Mahomedan Law a wife is not
entitled to maintenance. It is open to
doubt whether the wife governed by
Mahomedan Law would be entitled to
interim maintenance unlike under the
Hindu Law even in a suit for
maintenance itself. Here in the instant
case she is a respondent in a suit for
restitution of conjugal right. Section 24
of the Hindu Marriage Act is a special
provision made in the said Act where in
any proceedings under the said Act the
petitioner is entitled to claim interim
maintenance from the respondent. In my
view the same right cannot be carved
out by reference to section 151 of the
Civil Procedure Code in regard to the
11 W.P. No. 17973/2016

matrimonial cases which are not covered
by section 24 of the Hindu Marriage
Act.”

According to the said judgment, the Bombay

High Court has held that the Section 24 of the Hindu

Marriage Act is a special provision made in the said Act

where in any proceedings under the said Act the petitioner

is entitled to claim interim maintenance from the

respondent. It has further been held that the same right

cannot be carved out by reference to Section 151 of the

Civil Procedure Code in regard to the matrimonial cases

which are not covered by Section 24 of the Hindu Marriage

Act.

9. Thus, the provisions of Hindu Marriage Act

being a special provision would not be applicable in the

present case. Therefore, the trial Court has exceeded his

jurisdiction in granting maintenance to the respondent

under the proceedings initiated by the applicant for

restitution of conjugal rights as per Mahomedan Law.
12 W.P. No. 17973/2016

petition is allowed. The impugned order dated 20.08.2016

passed by the trial Court is hereby set aside.

11. There shall be no order as to costs.

(Ms.Vandana Kasrekar)
Judge
ashish

Digitally signed by ASHISH
KUMAR LILHARE
Date: 2018.07.06 15:23:29
+05’30’

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