Sheikh Israfil Mohammad vs Anwari Begum on 12 February, 2009

              HIGH COURT OF CHATTISGARH AT BILASPUR

           Criminal Misc.Petition No. 429 of 2008

               Sheikh Israfil Mohammad

                                        ...Petitioners

                 VERSUS

                        Anwari Begum

                                    ...Respondents

! Mrs. Fauzia Mirza counsel for the petitioner.

^ Mr. Ajit Singh counsel for the respondent.

Honble Mr.T.P.Sharma,J

       Dated:12/02/2009

: Judgment

PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE

                           (O R A L)O R D E R

                                (12.02.2009)

     This petition is directed against the order dated

12.8.2008 passed by the Sessions Judge Kabirdham in Criminal

Revision No. 49/2008 affirming the order dated 24.4.2008

passed by the Judicial Magistrate First Class, Kawardha in

Criminal Case No. 130/2007 whereby learned Magistrate has

awarded maintenance in favour of the respondent under Section

3(2) of the Muslim Women (Protection of Rights on Divorce)

Act 1986 (for brevity "the Act").

2. The order is challenged on the ground that the Courts

below have committed an illegality in awarding the

maintenance in favour of a divorced Muslim woman in violation

of the provisions of Section 3(2) of the Act.

3. The facts of the case in brief are that the respondent

was married to the petitioner. Both, the petitioner and the

respondent are Muslims. Previously the respondent filed a

petition under Section 125 of the Code of Criminal Procedure

(for brevity "the Code") for maintenance which was dismissed

by the Competent Court on the ground that the divorced Muslim

woman is not entitled for maintenance in accordance with

Section 125 of the Code. Then she filed a petition for

maintenance under the provisions of Section 3(2) of the Act

stating therein that she is entitled for Mahr as well as

monthly maintenance of Rs. 3000 after divorce which was not

paid to her after the period of Iddat. The said petition was

opposed by the present petitioner on the ground that he is

liable to pay maintenance only till Iddat which he has

already paid and he is not liable to pay future maintenance

according to the provisions of Section 3(2) of the Act. After

affording opportunity of hearing to the parties, the

Magistrate awarded the maintenance of Rs. 1200 per month from

the date on which divorce was effected apart from the amount

of Mahr. Against the said order the revision was preferred

which was dismissed and the order passed by the Magistrate

was affirmed.

4. Heard counsel for the parties and perused the material

available on record including the orders passed by both the

Courts below.

5. Counsel for the petitioner submits that in this case the

respondent is a divorced Muslim woman. The petitioner who is

the husband of the respondent is liable to the maintenance

till the period of Iddat in accordance with the provisions of

Section 3(2) (a) of the Act. Counsel for the petitioner

further submits that if the respondent is not able to

maintain herself after the period of Iddat, the other

relatives who are entitled to inherit her property on her

death or the Wakf Board are liable to maintain her. In

accordance with Section 4 of the Act the present petitioner

is not liable for the maintenance of the respondent after the

period of Iddat but in this case the courts below have

awarded the future maintenance after Iddat and thereby

committed illegality. It is submitted that Section 3 and 4 of

the Act begin with the word "notwithstanding" and thus

excludes any other law for the time being in force. In other

words they being the non obstante clause exclude any other

provision for the time being in force. Reliance is placed on

the decision of the Supreme Court in the matter of Mannalal

Khetan etc. vs. Kedar Nath Khetan and others etc. 1 in which

it has been held negative, prohibitory and exclusive words

are indicative of the legislative intent when the statute is

mandatory. Negative words are clearly prohibitory and are

ordinarily used as a legislative device to make a statutory

provision imperative.

6. On the other hand counsel for the respondent supported

the impugned order and submitted that a divorced Muslim woman

is entitled for future maintenance and the husband is under

obligation to make fair provisions for the same within the

period of Iddat but he has not made any provision for the

future maintenance and therefore he is liable for the future

maintenance of the respondent during her lifetime. The courts

below have not committed any illegality or irregularity in

awarding the maintenance in favour of the respondent.

Reliance is placed on the decision of the Supreme Court in

the matter of Iqbal Bano v. State of U.P. and another2 in

which it has been held that liability of a Muslim husband to

his divorced wife under Section 3(1) (a) of the Act is not

confined to the period of Iddat. He is liable to make

reasonable and fair provision for the future of the divorced

wife which obviously includes her maintenance.

7. In this case both the petitioner and the respondent

being Muslim are governed by the Muslim Law. For the

maintenance of divorced Muslim woman special Act has been

enacted by the Parliament. Sections 3 and 4 of the Act read

as under:

             3. Mahr or other properties of Muslim woman to be given to her at
the time of divorce. - (1) Notwithstanding anything contained in any other law
for the time being in force, a divorced woman shall be entitled to -

             (a) a reasonable and fair provision and maintenance to be made and
paid to her within the iddat period by her former husband;

            (b) where she herself maintains the children born to her before or
after her divorce, a reasonable and fair provision and maintenance to be made
and paid by her former husband for a period of two years from the respective
dates of birth of such children;

            (c) an amount equal to the sum of mahr or dower agreed to be paid to
her at the time of her marriage or at any time thereafter according to Muslim
law; and

            (d) all the properties given to her before or at the time of
marriage or after the marriage by her relatives or friends or the husband or any
relatives of the husband or his friends.

       (2) Where a reasonable and fair provision and maintenance or the amount
of mahr or dower due has not been made or paid or the properties referred to in
clause (d) of sub-section (1) have not been delivered to a divorced woman on her
divorce, she or any one duly authorised by her may, on her behalf, make an
application to a Magistrate for an order for payment of such provision and
maintenance, mahr or dower or the delivery of properties, as the case may be.

       (3) Where an application has been made under sub-section (2) by a
divorced woman, the Magistrate may, if he is satisfied that-

       (a) her husband having sufficient means, has failed or neglected to make
or pay her within the iddat period a reasonable and fair provision and
maintenance for her and the children; or

       (b) the amount equal to the sum of mahr or dower has not been paid or
that the properties referred to in clause (d) of sub-section (1) have not been
delivered to her.

       make an order, within one month of the date of the filing of the
application, directing her former husband to pay such reasonable and fair
provision and maintenance to the divorced woman as he may determine as 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 her former husband or, as
the case may be, for the payment of such mahr or dower or the delivery of such
properties referred to in clause (d) of sub-section (1) to the divorced woman:

             Provided that if the Magistrate finds it impracticable to dispose
of the application within the said period, he may, for the reasons to be
recorded by him, dispose of the application after the said period.

       (4) If any person against whom an order has been made under sub-section
(3) fails without sufficient cause to comply with the order, the Magistrate may
issue a warrant for levying the amount of maintenance or mahr or dower due in
the manner provided for levying fines under the Code of Criminal Procedure, 1973
(2 of 1974) and may sentence such person, for the whole or part of any amount
remaining unpaid after the execution of the warrant, to imprisonment for a term
which may extend to one year or until payment if sooner made, subject to such
person being heard in defence and the said sentence being imposed according to
the provisions of the said Code."

       Section 4. "Order for payment of maintenance.- (1) Notwithstanding
anything contained in the foregoing provisions of this Act or in any other law
for the time being in force, where the 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 marriage and the means of such relatives and such
maintenance shall be payable by such relatives in the properties 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 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
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 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."

     According to the provisions of Section 5 of the Act on the declaration by
affidavit in writing the parties may opt for the provisions of Chapter IX of the
Code of Criminal Procedure. In this case parties have not made any declaration
or not opted in accordance with the provisions of Section 5 of the Act.

8. In the light of the decision of the Apex Court in the

matter of Mohd. Ahmad Khan v. Shah Bano Begam3 the Parliament

has enacted the Act. Statement of objects and reasons for

enacting the law was to provide proper maintenance to the

Muslim divorced women within the period of iddat and also for

future maintenance. Section 5 of the Act is a special

provision and provides for the application under Chapter IX

of the Code to the parties to the proceedings by affidavit or

any other declaration in writing. But in this case the

parties have not opted in accordance with Section 5 of the

Act.

9. The provisions relating to the maintenance divorced

Muslim woman under Section 3(1) (a) of the Act have been

elaborately interpreted by the Constitution Bench of the Apex

Court in the case of Danial Latifi and another v. Union of

India 4 and law has been declared that liability of Muslim

husband to a divorced wife arising out of Section 3 (1) (a)

of the Act to pay maintenance is not confined to iddat

period. Relevant portion reads thus:

     "35. In Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai 5, Ali v.
Sufaira 6 , K. Kunhammed Haji v. K. amina 7, K. Zunaideen v. Ameena 8 Jaitunbi
Mubarak Shaikh v. Mubarak Fakruddin Shaikh 9 while interpreting the provision of
Sections 3(1)(a) and 4 of the Act, it is held that a divorced Muslim woman is
entitled to a fair and reasonable provision for her future being made by her
former husband which must include maintenance for the future extending beyond
the iddat period. It was held that the liability of the former husband to make a
reasonable and fair provision under Section 3(1)(a) of the Act is not restricted
only for the period of iddat but that a divorced Muslim woman is entitled to a
reasonable and fair provision for her future being made by her former husband
and also to maintenance being paid to her for the iddat period. A lot of
emphasis was laid on the words "made" and "paid" and were construed to mean not
only to make provision for the iddat period but also to make a reasonable and
fair provision for her future. A Full Bench of Punjab and Haryana High Court in
Kaka v. Hssan Bano 10has taken the view that under Section 3 (1) (a) of the Act
a divorced Muslim woman can claim maintenance which is not restricted to the
iddat period. To the contrary, it has been held that it is not open to the wife
to claim fair and reasonable provision for he future in addition to what she had
already received at time of divorce; that the liability of the husband is
limited for the period of iddat and thereafter if she is unable to maintain
herself, she has to approach her relatives or the Wakf Board, by majority
decisions in Usman Khan Bahamani v. Fathimunnisa Begum 11 , Abdul Rashid v.
Sultana Begum 12 Abdul Haq v. Yasmin Talat 13 and Mohd. Marahim v. Raiza
Begum14. Thus preponderance of judicial opinion is in favour of what we have
concluded in the interpretation of Section 3 of the Act. The decisions of the
High Courts referred to herein that are contrary to our decision stand
overruled."

     "36. While upholding the validity o the Act, we may sum up our conclusions:

     (1) 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. Such a reasonable and fair provision extending beyond iddat period must be
made by the husband within the iddat period in terms of Section 3(1) (a) of the
Act.

     (2) Liability of a Muslim husband to his divorced wife arising under
Section 3(1) (a) of the Act to pay maintenance is not confined to the iddat
period.

     (3) 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 top 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. 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.

  (3) The provisions of the Act do not offend Articles 14, 15 and 21 of the
Constitution of India."

10. Thus Section 3 of the Act provides for maintenance

to a divorced Muslimwomen within the iddat period and

Section 4 provides for maintenance to such women after

the iddat period. Sections 3 and 4 are the non obstante

clause. Applying the dictum in the matter of Danial

Latifi and another (supra), it has been reiterated by

the Apex Court in the matter of Iqbl Bano v. State of

U.P. and another 15 that a divorced Muslim woman is

entitled for future maintenance also from her former

husband.

11. Right of maintenance of divorced Muslim women after the

period of iddat from her husband and liability of the husband

has been elaborately interpreted by the Apex Court in the

matter of Danial Latifi and another (supra) and in the matter

of Iqbal Bao (supra) Thus, in the light of aforesaid

declaration of law by the Apex Court a divorced Muslim woman

is entitled for future maintenance from her former husband

and the former husband is under obligation to maintain her

even after the period of iddat.

12. Court below has awarded future maintenance to the

respondent from her former husband on the date of divorce.

Provision of Section 3 is a special provision for maintenance

of the divorced Muslim women according to which the divorced

Muslim woman is entitled for maintenance from the date of

divorce. Court. Thus Court below has not committed any

illegality or infirmity in awarding future maintenance to the

respondent from the date of divorce. Accordingly, the

petition being without substance is liable to be dismissed

and it is hereby dismissed.

                                                      Judge