The Secretary, Tamil Nadu Wakf ... vs Syed Fatima Nochi on 16 March, 1994

    The Secretary, Tamil Nadu Wakf Board And Others vs Syed Fatima Nochi on
16/3/1994

ORDER

   1. The respondents in M. C. No. 11 of 1992 on the file of the Judicial
Magistrate, Tiruchendur have filed this petition under Section 482 of the
Criminal P.C. to call for the records in the above case and quash the same.

   2. Short facts are : The respondent has filed a petition against the
petitioners under Section 4(2) of the Muslim Women (Protection Rights on
Divorce) Act, 1986 (hereinafter referred to as the 'Act') praying for
maintenance at the rate of Rs. 750/- per month. The allegations in that petition
are briefly as follows:- The petitioner and Syed Ahmed Moulana got married on
10-6-1980, according to Muslim Law. Out of lawful wedlock, the petitioner gave
birth to two female children, twins, on 6-4-1981. On 12-6-1986; the petitioner's
husband pronounced 'Talak'. After 'Talak', the petitioner has not re-married
anybody. The petitioner has got no income and no means to maintain her female
children. According to Mohammedan Law, her two children are the heirs for his
properties. They did not get any property as heirs. Formerly, the petitioner was
leading a good life. Now she is finding it very difficult to run the family and
is suffering a lot. As per Mohammedan Law, a Muslim woman in such circumstances,
can get maintenance from the heirs and in case they were not able to provide
maintenance, she can claim main- tenance from the parents and in case, they are
not able to provide maintenance, they can claim maintenance from the Wakf Board.
The heirs and the parents are not in a position to provide maintenance and
hence, it is the duty of the Wakf Board to provide maintenance. The first
respondent is the Secretary of the Wakf Board. The second respondent is the
Superintendent working under the first respondent at Timnelveli. The Wakf Board
has got the necessary means to pay maintenance. The petitioner and hpr two
children require Rs. 750/- towards maintenance. Hence, the petition.

   3. Mr. Haja Nazirudeen learned counsel appearing for the petitioners, would
submit that (i) an order under S, 4(1) of the Act is a pre-requisite for
entertaining a petition under S. 4(2) of the Act; (ii) that the Ministry of
Welfare (Wakfs' Section) Government of India, had written a letter to the
Secretary, Tamil Nadu Wakf Board, Madras-4 that no separate fund is to be
created for the demands of maintenance to the divorced Muslim women and that no
guidelines are to be issued to the Wakf Board in this behalf and in view of that
letter, this petition cannot be maintained.

   4. I have heard Mr. Hameed Ismail, learned counsel appearing for the
respondent, on the above aspects.

   5. I have carefully considered the submissions made by the learned counsel. I
shall first take up the first submission made by Mr. Haja Naziruddin. For
considering the submission, Section 4, of the Act needs extraction. It is as
follows:--

     "Section 4. Order for payment of maintenance:-- (1) Notwithstanding
anything contained in the foregoing provisions of this Act 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 order by the Magistrate on the 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 divorced woman is unable to maintain herself and she has no
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
share 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 of 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".

   On a plain reading of Ss. 4(1) and 4(2) of the Act, it would be apparent that
a claim under S. 4(2) of the Act can be made, in case maintenance cannot be
obtained by resorting to Section 4(1) of the Act. At the same time, it is also
clear that no separate proceedings need be taken under Section 4(1) of the Act
so as to get an order under Section 4(1) of the Act and only proceed with a
petition under Section 4(2) of the Act. When circumstances are available to show
that maintenance cannot be obtained by resorting to Section 4(1) of the Act, the
petitioner can straighway file a petition under Section 4(2) of the Act. In this
petition, in paragraph 8, necessary allegations are made to the effect that she
could not get any maintenance by resorting to Section 4(1) of the Act. While so,
the Court below is perfectly in order in entertaining this petition under
Section 4(2) of the Act. The submission that the petitioners should resort to
Section 4(1) of the Act or that an order should be passed under section 4(1) of
the Act and it is a sine qua non for filing a petition under Section 4(2) of the
Act is not tenable. Hence, submission No. (i) fails.

   6. Regarding submission No. (ii) it is needless for me to state that a letter
from the Ministry of Welfare (Wakf Section) Government of India dated 9-2-1988
cannot have any overriding effect of a stautory provision which enables the
divorced Muslim women to get maintenance under the provisions of the Act. That
apart, this letter has got no relevancy so far as the question of
maintainability of the petition is concerned. Hence, submission No. (ii) also
fails.

   7. In the result, the petition fails and shall stand dismissed.

   8. Petition dismissed.