Tripura Board Of Wakf And Anr. vs Tahera Khatoon on 2 February, 2001

    Tripura Board Of Wakf And Anr. vs Tahera Khatoon on 2/2/2001

JUDGMENT

   1. This is an application under Article 226/227 of the Constitution of India
praying for quashing the order dated 23.12.1997 passed by the learned Judicial
Magistrate, 1st Class, Sonamura, in Misc. Case No. 15/97, and for quashing the
order dated 28.1.2001 in Misc. Case No. 10/98, and the distress warrant dated
28.1.2000 issued by the Sub-Divisional Judicial Magistrate, Sonamura.

   2. The facts briefly are that the respondent is a Muslim divorced woman. She
filed an application for maintenance against her husband under section 125, Cr.
P.C., which was registered as Misc. Case No. 5/96 and was ultimately disposed of
with the observation that the respondent being a Muslim divorced woman can file
a petition under the Muslim Women (Protection of Rights on Divorce) Act, 1986,
(for short, "the act, 1986"). Thereafter, the respondent filed such a petition
which was numbered as Misc. Case No. 15/ 97. In the said petition, the husband
of the respondent was impleaded as opposite party no 1, the Assistant
Commissioner, Sub-Divisional Wakf Committee, (Wakf Board), Sonapur (hereinafter
referred to as "the Assistant Commissioner, Wakf Committee") as opposite party
No. 2, and the mother of the respondent was impleaded as opposite party No. 3.
By order dated 23.12.1997, the learned Magistrate disposed of the said Misc.
Case with, inter alia, the following observations:

     "...In consideration of all aspects the prayer of the petitioner is
partially allowed. The OP No. 1 shall pay Rs. 7000 as Mahrana to the petitioner
and further the OP No. 1 shall pay Rs. 4.000 for the period of Iddat Kal. The OP
No.1 shall pay in total Rs. 1,000 to the petitioner. The OP No.2 is also binded
by this order and he will act as per acts laid down in the Muslim Women
(Protection of Rights on Divorce) Act. The OP No.3 is discharged from any
liability."

   It is thus clear that by the said order dated 23.12.1997, the Magistrate
directed the opposite party No. 1, husband of the respondent to pay a total of
Rs. 11,000 and discharged the opposite party No. 2, mother of the respondent,
from any liability, but observed that the opposite party No. 2, Assistant
Commissioner, Wakf Committee) would be bound by the order and would act as per
the provisions of the Act, 1986. Thereafter, the respondent filed an application
before the Magistrate which was numbered as Misc. Case No. 10/98 stating, inter
alia, that although the Magistrate had passed an order on 23.12.1997 for payment
of maintenance allowance under the Act, 1986, the Assistant Commissioner, Wakf
Committee, had not paid the arrear maintenance allowance of Rs. 5,000 for the
period from 23.12.1997 to 23.10.1998. In the said application, the respondent
prayed for an order for immediate realisation of the dues from the Assistant
Commissioner, Wakf Committee. Pursuant to the said application registered as
Misc. Case No. 10/98, the Magistrate passed an order on 18.11.1999 giving the
Assistant Commissioner, Wakf Committee, some adjournment as a last chance. The
Assistant Commissioner, Wakf Committee then filed an application praying for
review of the said order dated 18.11.1999, but the Magistrate rejected the said
prayer for review by order dated 28.1.2000. In the meanwhile, distress warrant
had been issued pursuant to orders passed on 7.12.1999. Aggrieved by the said
orders dated 23.12.1997 and 28.1.2000 as well as the distress warrant, the
petitioner had filed this writ petition for appropriate relief.

   3. Mr. UB Saha, learned senior counsel appearing for the petitioners,
submitted that it will be clear from sub-section (2) of section 4 of the Act,
1986, that only where a divorced woman is unable to maintain herself and she has
no relative as mentioned in sub-section (1) of section 4 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 proviso to sub-section (1) of section 4, the
Magistrate may, by order direct the State Wakf Board to pay such maintenance as
determined by him under sub-section (1) of section 4 or, as the case may be, to
pay the shares of such of the relatives who are unable to pay, at such periods
as may be specified in the order. In the present case, no finding has been
recorded by the Magistrate as to whether the relatives of the respondent have
not enough means to pay the maintenance nor any maintenance amount determined by
the Magistrate. Mr. Saha further submitted that all that the Magistrate recorded
in the impugned order dated 23.12.1997 was that the Assistant Commissioner, Wakf
Committee, was bound by the said order, and would act as per Act, 1986.
According to Mr. Saha, the Assistant Commissioner, Wakf Committee or the Wakf
Board would be bound by the provisions of Act, 1986 and in particular under sub-
section (2) of section (4) thereof if the Magistrate recorded a clear finding
that the respondent could not be maintained by her relatives, and until the
Magistrate fixes the amount of maintenance, the Wakf Committee or Board should
not be held liable to pay the maintenance to the respondents. Mr. Saha further
submitted that it would be clear from the said order that one of the witnesses,
namely, PW-3, who was examined by the Magistrate was the brother of the
respondent and, therefore the Magistrate should have considered as to whether
the said PW-3 was in a position to maintain the respondent. He further argued
that in the subsequent order dated 28.1.2000 in Misc. Case No. 10/98 by which
the Magistrate rejected the prayer of the petitioner for review of the order
dated 18.11.1999, the Magistrate has made mention that the respondent had filed
a petition under section 127, Cr. P.C. for enforcement of the order dated
23.12.1997. According to Mr. Saha, since the proceeding udder sections 125 and
127, Cr. P.C. were not applicable to a Muslim divorced woman, the order of the
Magistrate was without jurisdiction and are nullities.

   4. Mr. S. Shah, learned counsel appearing for the respondent, on other hand,
submitted that it has been held by the Supreme Court in Secretary, Tamil Nadu
Wakf Board v. Syed Fatima Nachi, AIR 1996 SC 2423, that the proceedings udder
sub-sections (1) and (2) of section 4 of the Act, 1986, are not mutually
exclusive but are to be taken up simultaneously by the Magistrate. In the
instant case, the Assistant Commissioner, Wakf Committee has been impleaded as
opposite party No. 2 in the very first application field by the respondent
before the Magistrate numbered as Misc. Case No. 15/97, and if the contention of
the State Wakf Board was that tea respondent has other relatives who could
provide maintenance for the respondent, the State Wakf Board should have taken a
plea in that regard before the Magistrate. Mr. Saha submitted that no such plea
was taken by the Assistant Commissioner, Wakf Committee and in the circumstances
the Magistrate was right in recording a finding that the Assistant Commissioner,
Wakf Committee was bound by the provisions of the Act, 1986. He further
submitted that a reading of the impugned order dated 23.12.1997 would show that
the Magistrate has considered all aspects of the matter including the fact that
the respondent was dependable on her widow mother who was a poor woman and had
discharged the widow mother impleaded in the said procedure as opposite party
no.3 from all liability. According to Mr. Saha, this would go to show that as
per the said order dated 23.12.1997, the Assistant Commissioner, Wakf Committee
was required to pay the maintenance to the respondent. He further submitted that
if the Wakf Committee was aggrieved by the said order dated 23.12.1997, it was
open for the said Wakf Committee to have moved higher courts against the said
order, but no such steps were taken by the Wakf Board. When no maintenance was
paid by the Wakf Committee, the respondent had no option but to move the
Magistrate for realisation of maintenance allowance from the Wakf Committee, and
it was at that very belated stage that the Wakf Committee filed an application
for reviewing the order dated 18.11.1999, and the Magistrate rejected the said
application after observing that the earlier order dated 23.12.1997 passed in
Misc. Case No. 15/97 for payment of maintenance to the respondent had not been
challenged by the Wakf Board. Mr. Saha therefore submitted that this writ
petition should be dismissed by this court with cost particularly when the
respondent is a poor Muslim divorced woman and has been suffering since her
divorce.

   5. The contention of Mr UB Saha, learned counsel for the petitioners that the
impugned order dated 23.12.1997 and 28.1.2000 are without jurisdiction and are
nullities inasmuch as these are purported to have been passed under section 127.
Cr. P.C, and not under the Act, 1986 has no merit at all. It is true that the
Magistrate has stated in the impugned order dated 28.1.2000 that Misc. Case No.
10/98 had been field by the respondent under section 127, Cr. P.C. But it is not
disputed that the Magistrate who passed the impugned orders had the jurisdiction
under the Act 1986, to pass the impugned orders. If that be so, the mere fact
that in his impugned order dated 28.1.2000 he has made a reference to section
127, Cr.P.C, would not divest the Magistrate of the jurisdiction vested in him
for passing orders under the Act, 1986. The question really is whether by the
impugned orders dated 23.12.1997 passed in Misc. Case No. 15/97, the State Wakf
Board was liable for making payment of maintenance to the respondent under sub-
section (2) of section 4 of the act, 1986.

   6. Sub-section (2) of section 4 of the Act, 1986, is quoted here in below:

     "(2) Where a divorced woman is unable to maintain herself and she has no
relative 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 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
proviso to sub-section (1), the Magistrate may, by order direct the State Wakf
Board established under section 9 of the Wakf Act, (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."

   It is clear from the bare reading of sub-section (2) of section 4 of the Act,
1986, quoted above, that the Magistrate can order the State Wakf Board to pay
maintenance if the divorced woman is unable to maintain herself and she has no
relative 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 proviso to sub-section (1) of section 4 of the Act. In the present
case, it appears from the order dated 23.12.1997 that the Magistrate has come to
a conclusion that the respondent is unable to maintain herself and has also
recorded a finding that the mother of the respondent is poor and is therefore
not in a position to maintain the respondent. But the Magistrate has not
considered as to whether there were other relatives referred to in sub-section
(2) of section 4 of the Act who had the means to pay the maintenance to the
respondent. It is true as has been submitted by Mr, S. Saha that the Assistant
Commissioner, Wakf Committee who had been impleaded as opposite party No. 2 in
Misc. Case No. 15/97 did not take any plea that there were other relatives who
could provide the maintenance to the respondent. But in my considered opinion,
even where no such plea is taken by the Wakf Board before the Magistrate, some
finding has to be recorded by the Magistrate that the relatives as mentioned in
sub-section (2) of section 4 of the Act do not have enough means to pay
maintenance to the divorced woman. This is because, as has been rightly
contended by Mr. UB Saha, the resources available with the State Wakf Board are
not unlimited but limited and as the language of sub-section (2) of section 4
makes it clear that such limited resources available with the Wakf Board are
meant for divorced Muslim women who are unable to maintain themselves or who
have no relatives as mentioned in the said sub-section (2) having enough means
to pay maintenance to the divorced woman. Further, it will also be clear from
sub-section (2) of section 4 of the Act, 1986, quoted above, that the order
passed by the Magistrate must also indicate the maintenance determined by him
which is to be paid by the State Wakf Board. But in the order 23.12.1997 in
Misc. case No.15/97 although it was held that the Assistant Commissioner, Wakf
Committee would be bound by the provisions of Act, 1986, no amount of
maintenance was determined by the Magistrate which the State Wakf Board was
required to pay under the Act, 1986.

   7. Nonetheless, I find great force in the submission of Mr. S. Saha, learned
counsel for the respondent that the Assistant Commissioner, Wakf Committee who
was impleaded as opposite party No. 2 in Misc. Case No. 15/97 before the
Magistrate had not contested the said Misc. case at all resisting the claim of
the respondent against the Wakf Board. Further, by order dated 23.12.1997 the
Magistrate observed that the Assistant Commissioner, Wakf Committee, opposite
party No. 2 in the said Misc. case was bound by the Act and yet the said order
was not challenged in higher courts. Mr. UB Saha, learned counsel for the
petitioner, of course contended that by the said order the Wakf Board was not
required to pay any maintenance to the respondent and all that was stated was
the Assistant Commissioner, Wakf Committee was bound by the provisions of the
Act. He also submitted that in the petition filed by the respondent registered
as Misc. Case No. 15/97, no claim as such was made against the Wakf Board. In my
considered opinion, so long as some orders were not passed by the Magistrate
making the Wakf Committee/Board liable for payment of maintenance to the
respondent, the Wakf Committee/Board was not required to move the higher courts,
but once an observation was made by the Magistrate in the order dated 23.12.1997
that the Assistant Commissioner, Wakf Committee was bound by the provisions of
the Act and at the same time the Magistrate discharged the mother of the
liability for maintenance of the respondent, the Wakf Committee had been held
liable to pay maintenance under sub-section (2) of section 4 of the Act, 1986.
The said order of the Magistrate dated 23.12.1997 should have been challenged by
the Wakf Committee/Board on the same ground as it is now challenged before this
court in this writ petition that unless a finding is recorded by the Magistrate
that the respondent does not have other relatives who have the means to provide
maintenance to her, the State Wakf Board is not liable for such maintenance for
the respondent. There is however no limitation for filing a writ petition
challenging the said order dated 23.12.1997 on the ground that the State Wakf
Board is not liable unless a finding to that effect is recorded by the
Magistrate. It is only in the year 2000 that the State Wakf Board has filed this
writ petition before this court challenging the said order dated 23.12.1997
with, inter alia, the ground that the State Wakf Board is not liable until a
finding is recorded by the Magistrate that no other relative having means to pay
maintenance to the respondent is available.

   8. In Secretary. Tamil Nadu Wakf Board v. Syed Fatima Nachi (supra), cited by
Mr. S. Saha, learned counsel for the respondent, the Supreme Court has held that
section 4 of the Act, 1986 does not contemplate multiplicity of proceedings,
first a proceeding under sub-section (1) and thereafter a proceeding under sub-
section (2) for payment of maintenance by the Wakf Board. The proceeding before
the Magistrate against the relatives and the State Wakf Board may be
simultaneous and in such proceeding the State Wakf Board can take such defences
as are open to them on the merit of the matter and within the framework of the
legislative scheme embodied in section 4 of the Act, 1986. In my considered
opinion, therefore, in Misc. case No. 15/97, the State Wakf Board ought to have
taken its defences on merit within the framework of the legislative scheme
embodied in section 4 of the Act, 1986, and had such defences been taken by the
State Wakf Board, the Magistrate would have considered the said defences and
passed appropriate orders in the said Misc. Case No. 15/97. But since no such
defence has been taken in the said Misc. Case and since the order passed on
23.12.1997 in the said Misc. case has been challenged by the State Wakf Board
before this court only in the year 2000. I am of the opinion that the
petitioners should be saddled with a reasonable Cost to take care of the
hardship that the respondent has suffered and to enable the respondent to
contest the case again before the Magistrate against the petitioners. In the
aforesaid case of the Supreme Court in Secretary, Tamil Nadu Wakf Board v. Syed
Fatima Nachi, the Supreme Court had directed the Tamil Nadu Wakf Board to
deposit a sum of Rs. 10,000 before issuing notice to the divorced woman in that
case and at the time of disposal of the case directed that Rs. 3000 out of the
said amount be paid to the counsel appearing for the divorced woman in that case
and the remaining Rs. 7000 be paid to the divorced woman for her succour. In my
considered opinion, therefore, a cost of Rs. 10,000 in favour of the respondent
in the present case will meet the ends of justice.

   28.1.2000 in Misc. Case No. 10/98 and the distress warrant issued against the
said Assistant Commissioner, Wakf Committee, on the condition that the
petitioners deposit with the Sub-Divisional Judicial Magistrate, Sonamura, a
cost of Rs. 10,000 with two (2) months from today. Only on such deposit of Rs.
10,000 within two months from today that the impugned orders dated 23.12.1997
and 28.1.2000 and the impugned distress warrant will stand quashed. In case such
amount of Rs. 10,000 is not deposited, the said impugned orders dated
23.12.1997, 28.1.2000 and the distress warrant shall remain in force. The
respondent, divorced woman, will be entitled to withdraw the said amount of Rs.
10,000 on proper identification before the Magistrate. The petitioners and the
respondent will appear before the Magistrate at Sonamura on 9.4.2001, and the
Magistrate will thereafter fix a date of hearing and after giving due
opportunity to the petitioners and the respondent including examination and
cross-examination of witnesses, pass fresh orders in accordance with law by the
end of June, 2001.

   Copy of this judgment and order be furnished to Mr. UB Saha, learned counsel
appearing for the petitioners, and Mr S. Saha, learned counsel appearing for the
respondent by the Registry by 5.2.2001 free of cost.