Md.Anwarul Haque Danish (None) 07 December 2009

SC- Maintainance to muslim woman till next marriage 4 Dec 09

SC- Maintainance to muslim woman till next marriage 4 Dec 09

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2309 OF 2009

[Arising out of S.L.P.(Crl.) No.717 of 2009]

Shabana Bano ....Appellant

Versus

Imran Khan ....Respondent

J U D G M E N T

Deepak Verma, J.

1. Leave granted.

2. Appellant Shabana Bano was married to the

respondent Imran Khan according to Muslim rites at

Gwalior on 26.11.2001. According to the appellant, at

the time of marriage, necessary household goods to be

used by the couple were given. However, despite

this, the respondent-husband and his family members

treated the appellant with cruelty and continued to

demand more dowry.

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3. After some time, the appellant became

pregnant and was taken to her parents' house by the

respondent. The respondent threatened the appellant

that in case his demand of dowry is not met by the

appellant's parents, then she would not be taken back

to her matrimonial home even after delivery.

4. Appellant delivered a child in her parental

home. Since even after delivery, respondent did not

think it proper to discharge his responsibility by

taking her back, she was constrained to file a

petition under Section 125 of the Code of Criminal

Procedure (for short, 'Cr.P.C.') against the

respondent in the Court of Family Judge, Gwalior. It

was averred by the appellant that respondent has been

earning a sum of Rs. 12,000/- per month by doing some

private work and she had no money to maintain herself

and her new-born child. Thus, she claimed a sum of

Rs.3000/- per month from the respondent towards

maintenance.

5. On notice being issued to the respondent, he

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denied all the contents of the petition filed by the

appellant under Section 125 of the Cr.P.C. except

admitting his marriage with the appellant.

6. Preliminary objections were raised by the

respondent that appellant has already been divorced

on 20.8.2004 in accordance with Muslim Law. Thus,

under the provisions of Muslim Women (Protection of

Rights on Divorce) Act, 1986 (hereinafter referred to

as `Muslim Act'), appellant is not entitled to any

maintenance after the divorce and after the expiry of

the iddat period. It was also contended by him that

appellant herself is earning Rs.6,000/- per month by

giving private tuitions and is not dependent on the

income of the respondent, thus, she is not entitled

to any maintenance. It was also contended by

respondent that appellant had gone to her parental

home on her own free-will and accord, after taking

all the jewellery and a sum of Rs.1000/- and despite

notice being sent, she has not returned to her

matrimonial home. Thus, for all these reasons, she is

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not entitled to receive any amount of maintenance.

7. The Family Court was pleased to frame issues

and parties went to trial. After considering the

matter from all angles, the learned Judge of the

Family Court partly allowed the appellant's

application as under:

"(1) respondent shall pay Rs.2000/- per

month as maintenance allowance to the

petitioner from 26.4.2004, date of

institution of petition to the date of

divorce, i.e. 20.8.2004 and thereafter

from 20.8.2004 to the period of iddat.

(2) respondent will bear cost of the suit

of himself as well as of petitioner."

8. Thus, the claim of the appellant was allowed

to the extent of Rs. 2,000/- per month towards

maintenance from the date of institution of the

petition till the date of divorce, i.e., 20.8.2004

and further from the said date till the expiry of

iddat period but amount of maintenance thereafter was

denied.

9. The appellant was, therefore, constrained to

carry the matter further by filing Criminal Revision

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No. 285 of 2008 before the Gwalior Bench of the High

Court of Madhya Pradesh. The said Criminal Revision

came to be disposed of by learned Single Judge on

26.9.2008 and the order of the Family Court has

substantially been upheld and consequently, the

appellant's Revision has been dismissed. It is this

order and the order passed by the Family Court which

are the subject-matter of challenge in this appeal by

grant of special leave.

10. At the outset, learned counsel for the

appellant contended that learned Single Judge has

gravely erred in dismissing the appellant's Revision

on misconception of law on the ground that after

divorce of a Muslim wife, a petition under Section 125

of the Cr.P.C. would not be maintainable. It was also

contended that learned Single Judge proceeded on wrong

assumption in dismissing appellant's Revision claiming

maintenance under Section 125 of the Cr.P.C. It was

also argued that both the courts below completely lost

sight of the provisions of Section 7(1)(f) of the

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Family Courts Act, 1984 (hereinafter referred to as

the 'Family Act').

11. On the other hand, Shri S.K. Dubey, learned

Senior Counsel for the respondent contended that no

illegality or perversity can be found in the order

passed by the learned Single Judge and the same calls

for no interference. It was also contended that the

appeal being devoid of any merit and substance,

deserves to be dismissed.

12. In the light of the aforesaid contentions,

we have heard the learned counsel for the parties and

perused the records.

13. The basic and foremost question that arises

for consideration is whether a Muslim divorced wife

would be entitled to receive the amount of

maintenance from her divorced husband under Section

125 of the Cr.P.C. and, if yes, then through which

forum.

14. Section 4 of Muslim Act reads as under:

"4. Order for payment of maintenance:

-(1) Notwithstanding anything contained

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in the foregoing provisions of this Act

or in any other law for the time being

in force, where a Magistrate is

satisfied that a divorced woman has not

re-married and is not able to maintain

herself after the iddat period, he may

make an order directing such of her

relatives as would be entitled to

inherit her property on her death

according to Muslim law to pay such

reasonable and fair maintenance to her

as he may determine fit and proper,

having regard to the needs of the

divorced woman, the standard of life

enjoyed by her during her marriage and

the means of such relatives and such

maintenance shall be payable by such

relatives in the proportions in which

they would inherit her property and at

such periods as he may specify in his

order:

Provided that where such divorced

woman has children, the Magistrate shall

order only such children to pay

maintenance to her, and in the event of

any such children being unable to pay

such maintenance, the Magistrate shall

order the parents of such divorced woman

to pay maintenance to her:

Provided further that if any of the

parents is unable to pay his or her

share of the maintenance ordered by the

Magistrate on the ground of his or her

not having the means to pay the same,

the Magistrate may, on proof of such

inability being furnished to him, order

that the share of such relatives in the

maintenance ordered by him be paid by

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such of the other relatives as may

appear to the Magistrate to have the

means of paying the same in such

proportions as the Magistrate may think

fit to order.

(2) Where a divorced woman is unable

to maintain herself and she has no

relatives as mentioned in sub-section

(1) or such relatives or any one of them

have not enough means to pay the

maintenance ordered by the Magistrate or

the other relatives have not the means

to pay the shares of those relatives

whose shares have been ordered by the

Magistrate to be paid by such other

relatives under the second proviso to

sub-section (1), the Magistrate may, by

order, direct the State Wakf Board

established under Section 9 of the Wakf

Act, 1954 (29 of 1954), or under any

other law for the time being in force in

a State, functioning in the area in

which the woman resides, to pay such

maintenance as determined by him under

sub-section (1) or, as the case may be,

to pay the shares of such of the

relatives who are unable to pay, at such

periods as he may specify in his order."

15. Section 5 thereof deals with the option to be

governed by the provisions of Section 125 to 128 of

the Cr.P.C. It appears that parties had not given any

joint or separate application for being considered by

the Court. Section 7 thereof deals with transitional

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provisions.

16. Family Act, was enacted w.e.f. 14th September,

1984 with a view to promote conciliation in, and

secure speedy settlement of, disputes relating to

marriage and family affairs and for matters connected

therewith.

17. The purpose of enactment was essentially to

set up family courts for the settlement of family

disputes, emphasizing on conciliation and achieving

socially desirable results and adherence to rigid

rules of procedure and evidence should be eliminated.

In other words, the purpose was for early settlement

of family disputes.

18. The Act, inter alia, seeks to exclusively

provide within jurisdiction of the family courts the

matters relating to maintenance, including

proceedings under Chapter IX of the Cr.P.C.

19. Section 7 appearing in Chapter III of the

Family Act deals with Jurisdiction. Relevant

provisions thereof read as under:

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"7. Jurisdiction-(1) Subject to the

other provisions of this Act, a Family

Court shall -

(a) have and exercise all the

jurisdiction exercisable by any

district Court or any subordinate

civil Court under any law for the

time being in force in respect of

suits and proceedings of the nature

referred to in the Explanation; and

(b) be deemed, for the purposes of

exercising such jurisdiction under

such law, to be a district Court or,

as the case may be, such subordinate

civil Court for the area to which the

jurisdiction of the Family Court

extends.

Explanation.- The suits and

proceedings referred to in this sub-

section are suits and proceedings of the

following nature, namely:-

(a) .... .... ....

(b) .... .... ....

(d) .... .... ....

(e) .... .... ....

(f) a suit or proceeding for

maintenance;

(g) .... .... ...."

20. Section 20 of the Family Act appearing in

Chapter VI deals with overriding effect of the

provisions of the Act. The said section reads as

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under :

"20. Act to have overriding effect -

The provisions of this Act shall have effect

notwithstanding anything inconsistent

therewith contained in any other law for the

time being in force or in any instrument

having effect by virtue of any law other

than this Act."

21. Bare perusal of Section 20 of the Family Act

makes it crystal clear that the provisions of this

Act shall have overriding effect on all other

enactments in force dealing with this issue.

22. Thus, from the abovementioned provisions it

is quite discernible that a Family Court established

under the Family Act shall exclusively have

jurisdiction to adjudicate upon the applications

filed under Section 125 of Cr.P.C.

23. In the light of the aforesaid contentions and

in view of the pronouncement of judgments detailing

the said issue, learned counsel for the appellant

submits that matter stands finally settled but

learned Single Judge wholly misconstrued the various

provisions of the different Acts as mentioned

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hereinabove, thus, committed a grave error in

rejecting the appellant's prayer.

24. In our opinion, the point stands settled by

judgment of this Court reported in (2001) 7 SCC 740

titled Danial Latifi & Anr. Vs. Union of India

pronounced by a Constitution Bench of this Court.

Paras 30, 31 and 32 thereof fully establish the said

right of the appellant. The said paragraphs are

reproduced hereinunder :

"30. A comparison of these provisions with

Section 125 CrPC will make it clear that

requirements provided in Section 125 and the

purpose, object and scope thereof being to

prevent vagrancy by compelling those who can

do so to support those who are unable to

support themselves and who have a normal and

legitimate claim to support are satisfied. If

that is so, the argument of the petitioners

that a different scheme being provided under

the Act which is equally or more beneficial on

the interpretation placed by us from the one

provided under the Code of Criminal Procedure

deprive them of their right, loses its

significance. The object and scope of Section

125 CrPC is to prevent vagrancy by compelling

those who are under an obligation to support

those who are unable to support themselves and

that object being fulfilled, we find it

difficult to accept the contention urged on

behalf of the petitioners.

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31. Even under the Act, the parties agreed

that the provisions of Section 125 CrPC would

still be attracted and even otherwise, the

Magistrate has been conferred with the power

to make appropriate provision for maintenance

and, therefore, what could be earlier granted

by a Magistrate under Section 125 CrPC would

now be granted under the very Act itself.

This being the position, the Act cannot be

held to be unconstitutional.

32. As on the date the Act came into force the

law applicable to Muslim divorced women is as

declared by this Court in Shah Bano's case

[(1985) 2 SCC 556 Mohd. Ahmed Khan vs. Shah

Bano Begum & Ors.]. In this case to find out

the personal law of Muslims with regard to

divorced women's rights, the starting point

should be Shah Bano's case and not the

original texts or any other material - all the

more so when varying versions as to the

authenticity of the source are shown to exist.

Hence, we have refrained from referring to

them in detail. That declaration was made

after considering the Holy Quran, and other

commentaries or other texts. When a

Constitution Bench of this Court analysed

Suras 241-242 of Chapter II of the Holy Quran

and other relevant textual material, we do not

think, it is open for us to re-examine that

position and delve into a research to reach

another conclusion. We respectfully abide by

what has been stated therein. All that needs

to be considered is whether in the Act

specific deviation has been made from the

personal laws as declared by this Court in

Shah Bano's case without mutilating its

underlying ratio. We have carefully analysed

the same and come to the conclusion that the

Act actually and in reality codifies what was

stated in Shah Bano's case. The learned

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Solicitor General contended that what has been

stated in the Objects and Reasons in Bill

leading to the Act is a fact and that we

should presume to be correct. We have

analysed the facts and the law in Shah Bano's

case and proceeded to find out the impact of

the same on the Act. If the language of the

Act is as we have stated, the mere fact that

the Legislature took note of certain facts in

enacting the law will not be of much

materiality."

25. Judgment of this Court reported in (2007) 6

SCC 785 titled Iqbal Bano Vs. State of U.P.& Anr.

whereby the provisions contained in Section 125 of

the Cr.P.C. have been aptly considered and the

relevant portion of the order passed in Iqbal Bano's

case reads as under:

"10. Proceedings under Section 125

Cr.P.C. are civil in nature. Even if the

Court noticed that there was a divorced

woman in the case in question, it was open

to it to treat it as a petition under the

Act considering the beneficial nature of the

legislation. Proceedings under Section 125

Cr.P.C. and claims made under the Act are

tried by the same court. In Vijay Kumar

Prasad Vs State of Bihar (2004) 5 SCC 196 it

was held that proceedings under Section 125

Cr.P.C. are civil in nature. It was noted

as follows: (SCC p.200, Para 14).

14. The basic distinction between

Section 488 of the old Code and Section

126 of the Code is that Section 126 has

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essentially enlarged the venue of

proceedings for maintenance so as to

move the place where the wife may be

residing on the date of application. The

change was thought necessary because of

certain observations by the Law

Commission, taking note of the fact that

often deserted wives are compelled to

live with their relatives far away from

the place where the husband and wife

last resided together. As noted by this

Court in several cases, proceedings

under Section 125 of the Code are of

civil nature. Unlike clauses (b) and

the father or the mother claiming

maintenance has to be filed where the

person from whom maintenance is claimed

lives."

26. In the light of the findings already recorded

in earlier paras, it is not necessary for us to go

into the merits. The point stands well settled which

we would like to reiterate.

27. The appellant's petition under Section 125 of

the Cr.P.C. would be maintainable before the Family

Court as long as appellant does not remarry. The

amount of maintenance to be awarded under Section 125

of the Cr.P.C. cannot be restricted for the iddat

period only.

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28. Learned Single Judge appeared to be little

confused with regard to different provisions of

Muslim Act, Family Act and Cr.P.C. and thus was

wholly unjustified in rejecting the appellant's

Revision.

29. Cumulative reading of the relevant portions

of judgments of this Court in Danial Latifi (supra)

and Iqbal Bano (supra) would make it crystal clear

that even a divorced Muslim woman would be entitled

to claim maintenance from her divorced husband, as

long as she does not remarry. This being a

beneficial piece of legislation, the benefit thereof

must accrue to the divorced Muslim women.

30. In the light of the aforesaid discussion, the

impugned orders are hereby set aside and quashed. It

is held that even if a Muslim woman has been

divorced, she would be entitled to claim maintenance

from her husband under Section 125 of the Cr.P.C.

after the expiry of period of iddat also, as long as

she does not remarry.

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31. As a necessary consequence thereof, the

matter is remanded to the Family Court at Gwalior for

its disposal on merits at an early date, in

accordance with law. The respondent shall bear the

cost of litigation of the appellant. Counsel's fees

Rs.5,000/-.

32. Consequently, the appeal stands allowed to

the extent indicated above.

......................J.

[B. SUDERSHAN REDDY]

......................J.

[DEEPAK VERMA]

New Delhi.

December 04, 2009.

Reply Follow

8 Replies

Raj Kumar Makkad (Adv P & H High Court Chandigarh) 07 December 2009

This is a remarkable decision and I think this decision shall change the character of Shah Bano case.

Aftab4u (PVT EMPLOYEE) 10 December 2009

29 November 2009, 01:51

AEJAZ AHMED

Legal Consultant/Lawyer

[ Scorecard : 11462]

Thank the Contributor

Send PM

Dear Aftab,

First of all I want to clarify you on few points:

As per Islamic/Quranic law

(i) every "Muslim" is having right to marry and have "Four" wives at a time.

(ii) to marry with second Girl, no need to take "Divorce" from First wife.

(iii) She must be " Major/ Baligh ".

Therefore legally nobody can harass you if you marry with the Girl as you stated.

For your information, for Muslims, there is Muslim a Personal Law, and all the personal matters of Muslims are governed under the said act. Kindly go through the following:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937.ACT No. 26 OF 1937.[7th October, 1937.]

1.Short title and extent:

1...................

2.Application of Personal Law to Muslims.-

Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religion endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

Respected Sirs,

A query.

As per islamic law maintenance is allowed for iddat period only....and Hoble court has given the judgement that the maintenance should be given till her 2nd marriage.

Is there any possibility that the following problems may arise ?

1.The husband will not give divorse and he will harass his wife.

2.The wife will also not remarry and she can make illegal affair with anyone.

3.If leaving seperately he/she can make living relationship with anyone with out giving divorse.

4.There is every posibility for men to harass their wife and they will not give divorse coz they need to pay the maintanance charges.

Pls correct me if iam wrong.

Aftab.

G.G.Shaikh Advocate M:9898038990 (lawyer) 10 December 2009

i fully agree with mr ezaz

Aftab4u (PVT EMPLOYEE) 12 December 2009

Dear Shaikh Sahab,

My question was do all the muslims need to follow the Islamic shariat or Honble SC Judgement regarding the maintenance etc.

Do we need to pay the maintenance only till iddat period or till the women remarry after divorse.

Aftab

Aftab4u (PVT EMPLOYEE) 16 December 2009

Dear Experts ,

Plz respond

Aftab

Prodyut Banerjee (Advocate (Corporate Lawyer)) 28 January 2010

Now it is the time to move for a "UNIFORM CIVIL CODE".

Prodyut Banerjee (Advocate (Corporate Lawyer)) 28 January 2010

A WELCOME AND LAND MARK JUDGEMENT BY THE SUPREME COURT OF INDIA. THE JUDGEMENT SHOULD BE IMPLEMENTED IN EACH AND EVERY CASE AND SHOULD NOT BE RESTRICTED.