Husband Liable To Pay Maintenance To Wife Even After Iddat Period: Supreme Court of India
Key Points :
In an landmark judgement for protecting rights of divorced Muslim women, Hon'ble Supreme Court of India held that husband is entitled to pay maintenance to divorced wife even after Iddat period,if she is unmarried after divorce.The liability of husband exists till divorced wife remarries.
Case Law Relied Upon :
The Supreme Court in Shabana Bano v. Imran Khan(2010) 1 SCC 666, 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.
Held 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 his relatives, who are liable to maintain her.”
Result :
The matter is remitted to the learned
Magistrate for re-adjudication of the controversy in question keeping in view
the principles stated here in above.
Full Text of Judgment:
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
J U D G M E N T
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(1985) 2 SCC 556 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 (2001) 7 SCC 740 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 thatthe
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 wouldextend 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 2002 (6) SCALE 165 , 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(2010) 1
SCC 666
, 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 emphasize, 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 afore stated
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 here in above.
J.[Dipak
Misra]
J.[Vikramajit
Sen]
New
Delhi;
April
16, 2014.
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