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