Under these circumstances, regard being had to the dictum in
Khatoon Nisa’s case, seeking of option would not make any
difference. The High Court is not correct in opining that when the
appellant-wife filed application under Section 3 of the Act, she
exercised her option. As the Magistrate still retains the power of
granting maintenance under Section 125 of the Code to a divorced
Muslim woman and the proceeding was continuing without any
objection and the ultimate result would be the same, there was no
justification on the part of the High Court to hold that the
proceeding after the divorce took place was not maintainable.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.820 OF 2014
(Arising out of S.L.P. (Criminal) No. 4377 of 2012)
Shamim Bano … Appellant
Versus
Asraf Khan …Respondent
Citation; 2014 ALL MR(cri)2200 SC
Dipak Misra, J.
Leave granted.
2. The appellant, Shamim Bano, and the respondent, Asraf Khan, were
married on 17.11.1993 according to the Muslim Shariyat law. As the
appellant was meted with cruelty and torture by the husband and his
family members regarding demand of dowry, she was compelled to
lodge a report at the Mahila Thana, Durg, on 6.9.1994, on the basis
of which a criminal case under Section 498-A read with Section 34
IPC was initiated and, eventually, it was tried by the learned
Magistrate at Rajnandgaon who acquitted the accused persons of the
said charges.
3. Be it noted, during the pendency of the criminal case under Section
498-A/34 IPC before the trial court, the appellant filed an
application under Section 125 of the Code of Criminal Procedure
(for short “the Code”) in the Court of Judicial Magistrate First
Class, Durg for grant of maintenance on the ground of desertion and
cruelty. While the application for grant of maintenance was
pending, divorce between the appellant and the respondent took
place on 5.5.1997. At that juncture, the appellant filed Criminal
Case No. 56 of 1997 under Section 3 of the Muslim Women (Protection
of Rights on Divorce) Act, 1986 (for brevity “the Act”) before the
learned Judicial Magistrate First Class, Durg. The learned
Magistrate, who was hearing the application preferred under Section
125 of the Code, dismissed the same on 14.7.1999 on the ground that
the appellant had not been able to prove cruelty and had been
living separately and hence, she was not entitled to get the
benefit of maintenance. The learned Magistrate, while dealing with
the application preferred under Section 3 of the Act, allowed the
application directing the husband and others to pay a sum of
Rs.11,786/- towards mahr, return of goods and ornaments and a sum
of Rs.1,750/- towards maintenance during the Iddat period.
4. Being grieved by the order not granting maintenance, the appellant
filed Criminal Revision No. 275 of 1999 and the revisional court
concurred with the view expressed by the learned Magistrate and
upheld the order of dismissal. The aforesaid situation constrained
the appellant to invoke the jurisdiction of the High Court under
Section 482 of the code in Misc. Crl. Case No. 188 of 2005. Before
the High Court a preliminary objection was raised on behalf of the
respondent-husband that the petition under Section 125 of the Code
was not maintainable by a divorced woman without complying with the
provisions contained in Section 5 of the Act. It was further put
forth that initial action under Section 125 of the Code by the
appellant-wife was tenable but the same deserved to be thrown
overboard after she had filed an application under Section 3 of the
Act for return of gifts and properties, for payment of mahr and
also for grant of maintenance during the ‘Iddat’ period. It was
also urged that the wife was only entitled to maintenance during
the Iddat period and the same having been granted in the
application, which was filed after the divorce, grant of any
maintenance did not arise in exercise of power under Section 125 of
the Code. Quite apart from the above, both the parties also had
advanced certain contentions with regard to obtaining factual
score.
5. The High Court, after referring to certain authorities, came to
hold that a Muslim woman is entitled to claim maintenance under
Section 125 of the Code even beyond the period of Iddat if she was
unable to maintain herself; that where an application under Section
3 of the Act had already been moved, the applicability of the
provisions contained in Sections 125 to 128 of the Code in the
matter of claim of maintenance would depend upon exercise of
statutory option by the divorced woman and her former husband by
way of declaration either in the form of affidavit or in any other
declaration in writing in such format as has been provided either
jointly or separately that they would be preferred to be governed
by the provisions of the Code; that the applicability of Sections
125 to 128 of the Code would depend upon exercise of statutory
option available to parties under Section 5 of the Act and as the
appellant-wife had taken recourse to the provisions contained in
the Act, it was to be concluded that she was to be governed by the
provisions of the Act; that the claim of the appellant under
Section 125 of the Code until she was divorced would be
maintainable but after the divorce on filing of an application
under Section 3 of the Act, the claim of maintenance, in the
absence of exercise of option under Section 5 of the Act to be
governed by Section 125 of the Code, was to be governed by the
provisions contained in the Act; that as the application under
Section 3 of the Act having already been dealt with by the learned
Magistrate and allowed and affirmed by the High Court under Section
482 of the Code, the claim of the appellant for grant of
maintenance had to be confined only to the period before her
divorce; and that the courts below had rightly concluded that the
wife was not entitled to maintenance as she had not been able to
make out a case for grant of maintenance under Section 125 of the
Code; and further that the said orders deserved affirmation as
interim maintenance was granted during the pendency of the
proceeding upto the date of divorce. Being of this view, the High
Court declined to interfere with the orders of the courts below in
exercise of inherent jurisdiction.
6. We have heard Mr. Fakhruddin, learned senior counsel appearing for
the appellant, and Mr. Kaustubh Anshuraj, learned counsel appearing
for the respondent.
7. The two seminal issues that emanate for consideration are, first,
whether the appellant’s application for grant of maintenance under
Section 125 of the Code is to be restricted to the date of divorce
and, as an ancillary to it, because of filing of an application
under Section 3 of the Act after the divorce for grant of mahr and
return of gifts would disentitle the appellant to sustain the
application under Section 125 of the Code; and second, whether
regard being had to the present fact situation, as observed by the
High Court, the consent under Section 5 of the Act was an
imperative to maintain the application.
8. To appreciate the central controversy, it is necessary to sit in a
time machine for apt recapitulation. In Mohd. Ahmed Khan v. Shah
Bano Begum and others[1], entertaining an application under Section
125 of the Code, the learned Magistrate had granted monthly
maintenance for a particular sum which was enhanced by the High
Court in exercise of revisional jurisdiction. The core issue
before the Constitution Bench was whether a Muslim divorced woman
was entitled to grant of maintenance under Section 125 of the Code.
Answering the said issue, after referring to number of texts and
principles of Mohammedan Law, the larger Bench opined that taking
the language of the statute, as one finds it, there is no escape
from the conclusion that a divorced Muslim wife is entitled to
apply for maintenance under Section 125 of the Code and that mahr
is not such a quantum which can ipso facto absolve the husband of
the liability under the Code, and would not bring him under Section
127(3)(b) of the Code.
9. After the aforesaid decision was rendered, the Parliament enacted
the Act. The constitutional validity of the said Act was assailed
in Danial Latifi and another v. Union of India[2] wherein the
Constitution bench referred to the Statement of Objects and Reasons
of the Act, took note of the true position of the ratio laid down
in Shah Bano’s case and after adverting to many a facet upheld the
constitutional validity of the Act. While interpreting Sections 3
and 4 of the Act, the Court came to hold that the intention of the
Parliament is that the divorced woman gets sufficient means of
livelihood after the divorce and, therefore, the word “provision”
indicates that something is provided in advance for meeting some
needs. Thereafter, the Court proceeded to state thus: -
“In other words, at the time of divorce the Muslim husband is
required to contemplate the future needs and make preparatory
arrangements in advance for meeting those needs. Reasonable and
fair provision may include provision for her residence, her
food, her clothes, and other articles. The expression “within”
should be read as “during” or “for” and this cannot be done
because words cannot be construed contrary to their meaning as
the word “within” would mean “on or before”, “not beyond” and,
therefore, it was held that the Act would mean that on or before
the expiration of the iddat period, the husband is bound to make
and pay maintenance to the wife and if he fails to do so then
the wife is entitled to recover it by filing an application
before the Magistrate as provided in Section 3(3) but nowhere
has Parliament provided that reasonable and fair provision and
maintenance is limited only for the iddat period and not beyond
it. It would extend to the whole life of the divorced wife
unless she gets married for a second time.”
10. In the said case the Constitution Bench observed that in actuality
the Act has codified the rationale contained in Shah Bano’s case.
While interpreting Section 3 of the Act, it was observed that the
said provision provides that a divorced woman is entitled to obtain
from her former husband “maintenance”, “provision” and “mahr”, and
to recover from his possession her wedding presents and dowry and
authorizes the Magistrate to order payment or restoration of these
sums or properties and further indicates that the husband has two
separate and distinct obligations: (1) to make a “reasonable and
fair provision” for his divorced wife; and (2) to provide
“maintenance” for her. The Court further observed that the
emphasis of this section is not on the nature or duration of any
such “provision” or “maintenance”, but on the time by which an
arrangement for payment of provision and maintenance should be
concluded, namely, “within the iddat period”, and if the provisions
are so read, the Act would exclude from liability for post-iddat
period maintenance to a man who has already discharged his
obligations of both “reasonable and fair provision” and
“maintenance” by paying these amounts in a lump sum to his wife, in
addition to having paid his wife’s mahr and restored her dowry as
per Sections 3(1)(c) and 3(1)(d) of the Act. Thereafter the larger
Bench opined thus:-
“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.
31. Even under the Act, the parties agree 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.”
11. Eventually the larger Bench concluded that a Muslim husband is
liable to make reasonable and fair provision for the future of the
divorced wife which obviously includes her maintenance as well and
such a reasonable and fair provision extending beyond the iddat
period must be made by the husband within the iddat period in terms
of Section 3 of the Act; that liability of a Muslim husband to his
divorced wife arising under Section 3 of the Act to pay maintenance
is not confined to the iddat period; and that a divorced Muslim
woman who has not remarried and who is not able to maintain herself
after the iddat period can proceed as provided under Section 4 of
the Act against her relatives who are liable to maintain her in
proportion to the properties which they inherit on her death
according to Muslim law from such divorced woman including her
children and parents and if any of the relatives being unable to
pay maintenance, the Magistrate may direct the State Wakf Board
established under the Act to pay such maintenance.
12. At this Juncture, it is profitable to refer to another Constitution
Bench decision in Khatoon Nisa v. State of U.P. and Ors.,[3]
wherein question arose whether a Magistrate is entitled to invoke
his jurisdiction under Section 125 of the Code to grant maintenance
in favour of a divorced Muslim woman. Dealing with the said issue
the Court ruled that subsequent to the enactment of the Act as it
was considered that the jurisdiction of the Magistrate under
Section 125 of the Code can be invoked only when the conditions
precedent mentioned in Section 5 of the Act are complied with. The
Court noticed that in the said case the Magistrate had returned a
finding that there having been no divorce in the eye of law, he had
the jurisdiction to grant maintenance under Section 125 of the
Code. The said finding of the magistrate had been upheld by the
High Court. The Constitution Bench, in that context, ruled thus:
“The validity of the provisions of the Act was for consideration
before the constitution bench in the case of Danial Latifi and
Anr. v. Union of India. In the said case by reading down the
provisions of the Act, the validity of the Act has been upheld
and it has been observed that under the Act itself when parties
agree, the provisions of Section 125 Cr.P.C. could be invoked as
contained in Section 5 of the Act and even otherwise, the
magistrate under the Act has the power to grant maintenance in
favour of a divorced woman, and the parameters and
considerations are the same as those in Section 125 Cr.P.C.. It
is undoubtedly true that in the case in hand, Section 5 of the
Act has not been invoked. Necessarily, therefore, the magistrate
has exercised his jurisdiction under Section 125 Cr.P.C. But,
since the magistrate retains the power of granting maintenance
in view of the constitution bench decision in Danial Latifi's
case (supra) under the Act and since the parameters for exercise
of that power are the same as those contained in
Section 125 Cr.P.C., we see no ground to interfere with the
orders of the magistrate granting maintenance in favour of a
divorced Muslim woman.”
13. The aforesaid principle clearly lays down that even an application
has been filed under the provisions of the Act, the Magistrate
under the Act has the power to grant maintenance in favour of a
divorced Muslim woman and the parameters and the considerations are
the same as stipulated in Section 125 of the Code. We may note
that while taking note of the factual score to the effect that the
plea of divorce was not accepted by the Magistrate which was upheld
by the High Court, the Constitution Bench opined that as the
Magistrate could exercise power under Section 125 of the Code for
grant of maintenance in favour of a divorced Muslim woman under the
Act, the order did not warrant any interference. Thus, the
emphasis was laid on the retention of the power by the Magistrate
under Section 125 of the Code and the effect of ultimate
consequence.
14. Slightly recently, in Shabana Bano v. Imran Khan[4], a two-Judge
Bench, placing reliance on Danial Latifi (supra), has ruled that: -
“The appellant’s petition under Section 125 CrPC would be
maintainable before the Family Court as long as the appellant
does not remarry. The amount of maintenance to be awarded under
Section 125 CrPC cannot be restricted for the iddat period
only.”
Though the aforesaid decision was rendered interpreting Section
7 of the Family Courts Act, 1984, yet the principle stated therein
would be applicable, for the same is in consonance with the principle
stated by the Constitution Bench in Khatoon Nisa (supra).
15. Coming to the case at hand, it is found that the High Court has
held that as the appellant had already taken recourse to Section 3
of the Act after divorce took place and obtained relief which has
been upheld by the High Court, the application for grant of
maintenance under Section 125 of the Code would only be
maintainable till she was divorced. It may be noted here that
during the pendency of her application under Section 125 of the
Code the divorce took place. The wife preferred an application
under Section 3 of the Act for grant of mahr and return of
articles. The learned Magistrate, as is seen, directed for return
of the articles, payment of quantum of mahr and also thought it
appropriate to grant maintenance for the Iddat period. Thus, in
effect, no maintenance had been granted to the wife beyond the
Iddat period by the learned Magistrate as the petition was
different. We are disposed to think so as the said application,
which has been brought on record, was not filed for grant of
maintenance. That apart, the authoritative interpretation in
Danial Latifi (supra) was not available. In any case, it would be
travesty of justice if the appellant would be made remediless. Her
application under Section 125 of the Code was continuing. The
husband contested the same on merits without raising the plea of
absence of consent. Even if an application under Section 3 of the
Act for grant of maintenance was filed, the parameters of Section
125 of the Code would have been made applicable. Quite apart from
that, the application for grant of maintenance was filed prior to
the date of divorce and hearing of the application continued.
16. Another aspect which has to be kept uppermost in mind is that when
the marriage breaks up, a woman suffers from emotional fractures,
fragmentation of sentiments, loss of economic and social security
and, in certain cases, inadequate requisites for survival. A
marriage is fundamentally a unique bond between two parties. When
it perishes like a mushroom, the dignity of the female fame gets
corroded. It is the law’s duty to recompense, and the primary
obligation is that of the husband. Needless to emphasise, the
entitlement and the necessitous provisions have to be made in
accordance with the parameters of law.
17. Under these circumstances, regard being had to the dictum in
Khatoon Nisa’s case, seeking of option would not make any
difference. The High Court is not correct in opining that when the
appellant-wife filed application under Section 3 of the Act, she
exercised her option. As the Magistrate still retains the power of
granting maintenance under Section 125 of the Code to a divorced
Muslim woman and the proceeding was continuing without any
objection and the ultimate result would be the same, there was no
justification on the part of the High Court to hold that the
proceeding after the divorce took place was not maintainable.
18. It is noticed that the High Court has been principally guided by
the issue of maintainability and affirmed the findings.
Ordinarily, we would have thought of remanding the matter to the
High Court for reconsideration from all spectrums but we think it
appropriate that the matter should be heard and dealt with by the
Magistrate so that parties can lead further evidence. Be it
clarified, if, in the meantime, the appellant has remarried, the
same has to be taken into consideration, as has been stated in the
aforestated authorities for grant of maintenance. It would be open
to the appellant-wife to file a fresh application for grant of
interim maintenance, if so advised. Be it clarified, we have not
expressed anything on the merits of the case.
19. In the result, the appeal is allowed and the impugned orders are
set aside and the matter is remitted to the learned Magistrate for
re-adjudication of the controversy in question keeping in view the
principles stated hereinabove.
………………………………J.
[Dipak Misra]
………………………………J.
[Vikramajit Sen]
New Delhi;
April 16, 2014.
-----------------------
[1] (1985) 2 SCC 556
[2] (2001) 7 SCC 740
[3] 2002 (6) SCALE 165
[4] (2010) 1 SCC 666
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