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CASE NO.:

Writ Petition (civil) 868 of 1986

PETITIONER:

DANIAL LATIFI & ANR.

Vs.

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT: 28/09/2001

BENCH:

G.B. Pattanaik, S. RAjendra Babu, D.P. Mohapatra, Doraiswamy Raju & Shivaraj V. Patil

JUDGMENT:

[ With WP(C) Nos. 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86, 1281/86, T.C. (C) 22/

87, 86/88, 68/88, T.P. (C) No. 276-

77/87, Crl. A. No. 702/90, SLP (Crl.) Nos. 655/88, 596-97/92, WP(C)

No. 12273/84, SLP(Crl.) No. 2513/94, Crl. A. Nos. 508/95, 843/95,

102-103/89, 292/90, SLP (Crl.) Nos. 2165/96, 3786/99, 2462/99]

J U D G M E N T

RAJENDRA BABU, J.:

The constitutional validity of the Muslim Women (Protection of

Rights on Divorce) Act, 1986 [hereinafter referred to as the Act] is in

challenge before us in these cases.

The facts in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors.

(1985) 2 SCC 556, are as follows.

The husband appealed against the judgment of the Madhya

Pradesh High Court directing him to pay to his divorced wife Rs.179/-

per month, enhancing the paltry sum of Rs.25 per month originally

granted by the Magistrate. The parties had been married for 43 years

before the ill and elderly wife had been thrown out of her husbands

residence. For about two years the husband paid maintenance to his

wife at the rate of Rs.200/- per month. When these payments ceased

she petitioned under Section 125 CrPC. The husband immediately

dissolved the marriage by pronouncing a triple talaq. He paid Rs.3000/-

as deferred mahr and a further sum to cover arrears of maintenance and

maintenance for the iddat period and he sought thereafter to have the

petition dismissed on the ground that she had received the amount due

to her on divorce under the Muslim law applicable to the parties. The

important feature of the case was that the wife had managed the

matrimonial home for more than 40 years and had borne and reared five

children and was incapable of taking up any career or independently

supporting herself at that late stage of her life - remarriage was an

impossibility in that case. The husband, a successful Advocate with an

approximate income of Rs.5,000/- per month provided Rs.200/- per

month to the divorced wife, who had shared his life for half a century and

mothered his five children and was in desperate need of money to

survive.

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Thus, the principle question for consideration before this Court

was the interpretation of Section 127(3)(b) CrPC that where a Muslim

woman had been divorced by her husband and paid her mahr, would it

indemnify the husband from his obligation under the provisions of

Section 125 CrPC. A Five-Judge Bench of this Court reiterated that the

Code of Criminal Procedure controls the proceedings in such matters and

overrides the personal law of the parties. If there was a conflict between

the terms of the Code and the rights and obligations of the individuals,

the former would prevail. This Court pointed out that mahr is more

closely connected with marriage than with divorce though mahr or a

significant portion of it, is usually payable at the time the marriage is

dissolved, whether by death or divorce. This fact is relevant in the

context of Section 125 CrPC even if it is not relevant in the context of

Section 127(3)(b) CrPC. Therefore, this Court held that it is a sum

payable on divorce within the meaning of Section 127(3)(b) CrPC and

held that mahr is such a sum which cannot ipso facto absolve the

husbands liability under the Act.

It was next considered whether the amount of mahr constitutes a

reasonable alternative to the maintenance order. If mahr is not such a

sum, it cannot absolve the husband from the rigour of Section 127(3)(b)

CrPC but even in that case, mahr is part of the resources available to the

woman and will be taken into account in considering her eligibility for a

maintenance order and the quantum of maintenance. Thus this Court

concluded that the divorced women were entitled to apply for

maintenance orders against their former husbands under Section 125

CrPC and such applications were not barred under Section 127(3)(b)

CrPC. The husband had based his entire case on the claim to be

excluded from the operation of Section 125 CrPC on the ground that

Muslim law exempted from any responsibility for his divorced wife

beyond payment of any mahr due to her and an amount to cover

maintenance during the iddat period and Section 127(3)(b) CrPC

conferred statutory recognition on this principle. Several Muslim

organisations, which intervened in the matter, also addressed

arguments. Some of the Muslim social workers who appeared as

interveners in the case supported the wife brought in question the issue

of mata contending that Muslim law entitled a Muslim divorced woman

to claim provision for maintenance from her husband after the iddat

period. Thus, the issue before this Court was: the husband was claiming

exemption on the basis of Section 127(3)(b) CrPC on the ground that he

had given to his wife the whole of the sum which, under the Muslim law

applicable to the parties, was payable on such divorce while the woman

contended that he had not paid the whole of the sum, he had paid only

the mahr and iddat maintenance and had not provided the mata i.e.

provision or maintenance referred to in the Holy Quran, Chapter II, Sura

241. This Court, after referring to the various text books on Muslim law,

held that the divorced wifes right to maintenance ceased on expiration of

iddat period but this Court proceeded to observe that the general

propositions reflected in those statements did not deal with the special

situation where the divorced wife was unable to maintain herself. In

such cases, it was stated that it would be not only incorrect but unjust to

extend the scope of the statements referred to in those text books in

which a divorced wife is unable to maintain herself and opined that the

application of those statements of law must be restricted to that class of

cases in which there is no possibility of vagrancy or destitution arising

out of the indigence of the divorced wife. This Court concluded that

these Aiyats [the Holy Quran, Chapter II, Suras 241-242] leave no doubt

that the Holy Quran imposes an obligation on the Muslim husband to

make provision for or to provide maintenance to the divorced wife. The

contrary argument does less than justice to the teaching of the Holy

Quran. On this note, this Court concluded its judgment.

There was a big uproar thereafter and Parliament enacted the Act

perhaps, with the intention of making the decision in Shah Banos case

ineffective.

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The Statement of Objects & Reasons to the bill, which resulted in

the Act, reads as follows :

The Supreme Court, in Mohd. Ahmed Khan vs. Shah Bano

Begum & Ors. [AIR 1985 SC 945), has held that although the

Muslim Law limits the husbands liability to provide for

maintenance of the divorced wife to the period of iddat, it does not

contemplate or countenance the situation envisaged by Section

125 of the Code of Criminal Procedure, 1973. The Court held that

it would be incorrect and unjust to extend the above principle of

Muslim Law to cases in which the divorced wife is unable to

maintain herself. The Court, therefore, came to the conclusion

that if the divorced wife is able to maintain herself, the husbands

liability ceases with the expiration of the period of iddat but if she

is unable to maintain herself after the period of iddat, she is

entitled to have recourse to Section 125 of the Code of Criminal

Procedure.

2. This decision has led to some controversy as to the

obligation of the Muslim husband to pay maintenance to the

divorced wife. Opportunity has, therefore, been taken to specify

the rights which a Muslim divorced woman is entitled to at the

time of divorce and to protect her interests. The Bill accordingly

provides for the following among other things, namely:-

(a) a Muslim divorced woman shall be entitled to a reasonable and

fair provision and maintenance within the period of iddat by her

former husband and in case she maintains the children born to

her before or after her divorce, such reasonable provision and

maintenance would be extended to a period of two years from the

dates of birth of the children. She will also be entitled to mahr or

dower and all the properties given to her by her relatives, friends,

husband and the husbands relatives. If the above benefits are

not given to her at the time of divorce, she is entitled to apply to

the Magistrate for an order directing her former husband to

provide for such maintenance, the payment of mahr or dower or

the deliver of the properties;

(b) where a Muslim divorced woman is unable to maintain herself

after the period of iddat, the Magistrate is empowered to make an

order for the payment of maintenance by her relatives who would

be entitled to inherit her property on her death according to

Muslim Law in the proportions in which they would inherit her

property. If any one of such relatives is unable to pay his or her

share on the ground of his or her not having the means to pay, the

Magistrate would direct the other relatives who have sufficient

means to pay the shares of these relatives also. But where, a

divorced woman has no relatives or such relatives or any one of

them has not enough means to pay the maintenance or the other

relatives who have been asked to pay the shares of the defaulting

relatives also do not have the means to pay the shares of the

defaulting relatives the Magistrate would order the State Wakf

Board to pay the maintenance ordered by him or the shares of the

relatives who are unable to pay.

The object of enacting the Act, as stated in the Statement of

Objects & Reasons to the Act, is that this Court, in Shah Banos case

held that Muslim Law limits the husbands liability to provide for

maintenance of the divorced wife to the period of iddat, but it does not

contemplate or countenance the situation envisaged by Section 125 of

the Code of Criminal Procedure, 1973 and, therefore, it cannot be said

that the Muslim husband, according to his personal law, is not under an

obligation to provide maintenance beyond the period of iddat to his

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divorced wife, who is unable to maintain herself.

As held in Shah Banos case, the true position is that if the

divorced wife is able to maintain herself, the husbands liability to

provide maintenance for her ceases with the expiration of the period of

iddat but if she is unable to maintain herself after the period of iddat,

she is entitled to have recourse to Section 125 CrPC. Thus it was held

that there is no conflict between the provisions of Section 125 CrPC and

those of the Muslim Personal Law on the question of the Muslim

husbands obligation to provide maintenance to his divorced wife, who is

unable to maintain herself. This view is a reiteration of what is stated in

two other decisions earlier rendered by this Court in Bai Tahira vs. Ali

Hussain Fidaalli Chothia, (1979) 2 SCC 316, and Fuzlunbi vs.

K.Khader Vali & Anr., (1980) 4 SCC 125.

Smt. Kapila Hingorani and Smt. Indira Jaisingh raised the

following contentions in support of the petitioners and they are

summarised as follows :

1. Muslim marriage is a contract and an element of consideration

is necessary by way of mahr or dower and absence of

consideration will discharge the marriage. On the other hand,

Section 125 CrPC has been enacted as a matter of public policy.

2. To enable a divorced wife, who is unable to maintain herself, to

seek from her husband, who is having sufficient means and

neglects or refuses to maintain her, payment of maintenance at

a monthly rate not exceeding Rs.500/-. The expression wife

includes a woman who has been divorced by, or has obtained a

divorce from her husband and has not remarried. The religion

professed by a spouse or the spouses has no relevance in the

scheme of these provisions whether they are Hindus, Muslims,

Christians or the Parsis, pagans or heathens. It is submitted

that Section 125 CrPC is part of the Code of Criminal Procedure

and not a civil law, which defines and governs rights and

obligations of the parties belonging to a particular religion like

the Hindu Adoptions and Maintenance Act, the Shariat, or the

Parsi Matrimonial Act. Section 125 CrPC, it is submitted, was

enacted in order to provide a quick and summary remedy. The

basis there being, neglect by a person of sufficient means to

maintain these and the inability of these persons to maintain

themselves, these provisions have been made and the moral

edict of the law and morality cannot be clubbed with religion.

3. The argument is that the rationale of Section 125 CrPC is to off-

set or to meet a situation where a divorced wife is likely to be

led into destitution or vagrancy. Section 125 CrPC is enacted to

prevent the same in furtherance of the concept of social justice

embodied in Article 21 of the Constitution.

4. It is, therefore, submitted that this Court will have to examine

the questions raised before us not on the basis of Personal Law

but on the basis that Section 125 CrPC is a provision made in

respect of women belonging to all religions and exclusion of

Muslim women from the same results in discrimination between

women and women. Apart from the gender injustice caused in

the country, this discrimination further leads to a monstrous

proposition of nullifying a law declared by this Court in Shah

Banos case. Thus there is a violation of not only equality

before law but also equal protection of laws and inherent

infringement of Article 21 as well as basic human values. If the

object of Section 125 CrPC is to avoid vagrancy, the remedy

thereunder cannot be denied to Muslim women.

5. The Act is an un-islamic, unconstitutional and it has the

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potential of suffocating the muslim women and it undermines

the secular character, which is the basic feature of the

Constitution; that there is no rhyme or reason to deprive the

muslim women from the applicability of the provisions of

Section 125 CrPC and consequently, the present Act must be

held to be discriminatory and violative of Article 14 of the

Constitution; that excluding the application of Section 125

CrPC is violative of Articles 14 and 21 of the Constitution; that

the conferment of power on the Magistrate under sub-section

(2) of Section 3 and Section 4 of the Act is different from the

right of a muslim woman like any other woman in the country

to avail of the remedies under Section 125 CrPC and such

deprivement would make the Act unconstitutional, as there is

no nexus to deprive a muslim woman from availing of the

remedies available under Section 125 CrPC, notwithstanding

the fact that the conditions precedent for availing of the said

remedies are satisfied.

The learned Solicitor General, who appeared for the Union of India,

submitted that when a question of maintenance arises which forms part

of the personal law of a community, what is fair and reasonable is a

question of fact in that context. Under Section 3 of the Act, it is provided

that a reasonable and fair provision and maintenance to be made and

paid by her former husband within the iddat period would make it clear

that it cannot be for life but would only be for a period of iddat and when

that fact has clearly been stated in the provision, the question of

interpretation as to whether it is for life or for the period of iddat would

not arise. Challenge raised in this petition is dehors the personal law.

Personal law is a legitimate basis for discrimination, if at all, and,

therefore, does not offend Article 14 of the Constitution. If the

legislature, as a matter of policy, wants to apply Section 125 CrPC to

Muslims, it could also be stated that the same legislature can, by

implication, withdraw such application and make some other provision

in that regard. Parliament can amend Section 125 CrPC so as to exclude

them and apply personal law and the policy of Section 125 CrPC is not to

create a right of maintenance dehors the personal law. He further

submitted that in Shah Banos case, it has been held that a divorced

woman is entitled to maintenance even after the iddat period from the

husband and that is how Parliament also understood the ratio of that

decision. To overcome the ratio of the said decision, the present Act has

been enacted and Section 3(1)(a) is not in discord with the personal law.

Shri Y.H.Muchhala, learned Senior Advocate appearing for the All

India Muslim Personal Law Board, submitted that the main object of the

Act is to undo the Shah Banos case. He submitted that this Court has

harzarded interpretation of an unfamiliar language in relation to religious

tenets and such a course is not safe as has been made clear by Aga

Mahomed Jaffer Bindaneem vs. Koolsom Bee Bee & Ors., 24 IA 196,

particularly in relation to Suras 241 and 242 Chapter II, the Holy Quran..

He submitted that in interpreting Section 3(1)(a) of the Act, the

expressions provision and maintenance are clearly the same and not

different as has been held by some of the High Courts. He contended

that the aim of the Act is not to penalise the husband but to avoid

vagrancy and in this context Section 4 of the Act is good enough to take

care of such a situation and he, after making reference to several works

on interpretation and religious thoughts as applicable to Muslims,

submitted that social ethos of Muslim society spreads a wider net to take

care of a Muslim divorced wife and not at all dependent on the husband.

He adverted to the works of religious thoughts by Sir Syed Ahmad Khan

and Bashir Ahmad, published from Lahore in 1957 at p. 735. He also

referred to the English translation of the Holy Quran to explain the

meaning of gift in Sura 241. In conclusion, he submitted that the

interpretation to be placed on the enactment should be in consonance

with the Muslim personal law and also meet a situation of vagrancy of a

Muslim divorced wife even when there is a denial of the remedy provided

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under Section 125 CrPC and such a course would not lead to vagrancy

since provisions have been made in the Act. This Court will have to bear

in mind the social ethos of Muslims, which are different and the

enactment is consistent with law and justice.

It was further contended on behalf of the respondents that the

Parliament enacted the impugned Act, respecting the personal law of

muslims and that itself is a legitimate basis for making a differentiation;

that a separate law for a community on the basis of personal law

applicable to such community, cannot be held to be discriminatory; that

the personal law is now being continued by a legislative enactment and

the entire policy behind the Act is not to confer a right of maintenance,

unrelated to the personal law; that the object of the Act itself was to

preserve the personal law and prevent inroad into the same; that the Act

aims to prevent the vagaries and not to make a muslim woman, destitute

and at the same time, not to penalise the husband; that the impugned

Act resolves all issues, bearing in mind the personal law of muslim

community and the fact that the benefits of Section 125 CrPC have not

been extended to muslim women, would not necessarily lead to a

conclusion that there is no provision to protect the muslim women from

vagaries and from being a destitute; that therefore, the Act is not invalid

or unconstitutional.

On behalf of the All India Muslim Personal Law Board, certain

other contentions have also been advanced identical to those advanced

by the other authorities and their submission is that the interpretation

placed on the Arabic word mata by this Court in Shah Banos case is

incorrect and submitted that the maintenance which includes the

provision for residence during the iddat period is the obligation of the

husband but such provision should be construed synonymously with the

religious tenets and, so construed, the expression would only include the

right of residence of a Muslim divorced wife during iddat period and also

during the extended period under Section 3(1)(a) of the Act and thus

reiterated various other contentions advanced on behalf of others and

they have also referred to several opinions expressed in various text

books, such as, -

1. The Turjuman al-Quran by Maulana Abul Kalam Azad,

translated into English by Dr. Syed Abdul Latif;

2. Persian Translation of the Quran by Shah Waliullah Dahlavi

3. Al-Manar Commentary on the Quran (Arabic);

4. Al-Isaba by Ibne Hajar Asqualani [Part-2]; Siyar Alam-in-Nubla

by Shamsuddin Mohd. Bin Ahmed BinUsman Az-Zahbi;

5. Al-Maratu Bayn Al-Fiqha Wa Al Qanun by Dr. Mustafa As-

Sabai;

6. Al-Jamil ahkam-il Al-Quran by Abu Abdullah Mohammad Bin

Ahmed Al Ansari Al-Qurtubi;

7. Commentary on the Quran by Baidavi (Arabic);

8. Rooh-ul-Bayan (Arabic) by Ismail Haqqi Affendi;

9. Al Muhalla by Ibne Hazm (Arabic);

10. Al-Ahwalus Shakhsiah (the Personal Law) by Mohammad abu

Zuhra Darul Fikrul Arabi.

On the basis of the aforementioned text books, it is contended that

the view taken in Shah Banos case on the expression mata is not

correct and the whole object of the enactment has been to nullify the

effect of the Shah Banos case so as to exclude the application of the

provision of Section 125 CrPC, however, giving recognition to the

personal law as stated in Sections 3 and 4 of the Act. As stated earlier,

the interpretation of the provisions will have to be made bearing in mind

the social ethos of the Muslim and there should not be erosion of the

personal law.

[

On behalf of the Islamic Shariat Board, it is submitted that except

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for Mr. M. Asad and Dr. Mustafa-as-Sabayi no author subscribed to the

view that the Verse 241 of Chapter II of the Holy Quran casts an

obligation on a former husband to pay maintenance to the Muslim

divorced wife beyond the iddat period. It is submitted that Mr. M. Asads

translation and commentary has been held to be unauthentic and

unreliable and has been subscribed by the Islamic World League only. It

is submitted that Dr. Mustafa-as-Sabayi is a well-known author in

Arabic but his field was history and literature and not the Muslim law. It

was submitted that neither are they the theologists nor jurists in terms

of Muslim law. It is contended that this Court wrongly relied upon Verse

241 of Chapter II of the Holy Quran and the decree in this regard is to be

referred to Verse 236 of Chapter II which makes paying mata as

obligatory for such divorcees who were not touched before divorce and

whose Mahr was not stipulated. It is submitted that such divorcees do

not have to observe iddat period and hence not entitled to any

maintenance. Thus the obligation for mata has been imposed which is

a one time transaction related to the capacity of the former husband.

The impugned Act has no application to this type of case. On the basis

of certain texts, it is contended that the expression mata which

according to different schools of Muslim law, is obligatory only in typical

case of a divorce before consummation to the woman whose mahr was

not stipulated and deals with obligatory rights of maintenance for

observing iddat period or for breast-feeding the child. Thereafter, various

other contentions were raised on behalf of the Islamic Shariat Board as

to why the views expressed by different authors should not be accepted.

Dr. A.M.Singhvi, learned Senior Advocate who appeared for the

National Commission for Women, submitted that the interpretation

placed by the decisions of the Gujarat, Bombay, Kerala and the minority

view of the Andhra Pradesh High Courts should be accepted by us. As

regards the constitutional validity of the Act, he submitted that if the

interpretation of Section 3 of the Act as stated later in the course of this

judgment is not acceptable then the consequence would be that a

Muslim divorced wife is permanently rendered without remedy insofar as

her former husband is concerned for the purpose of her survival after the

iddat period. Such relief is neither available under Section 125 CrPC nor

is it properly compensated by the provision made in Section 4 of the Act.

He contended that the remedy provided under Section 4 of the Act is

illusory inasmuch as firstly, she cannot get sustenance from the parties

who were not only strangers to the marital relationship which led to

divorce; secondly, wakf boards would usually not have the means to

support such destitute women since they are themselves perennially

starved of funds and thirdly, the potential legatees of a destitute woman

would either be too young or too old so as to be able to extend requisite

support. Therefore, realistic appreciation of the matter will have to be

taken and this provision will have to be decided on the touch stone of

Articles 14, 15 and also Article 21 of the Constitution and thus the

denial of right to life and liberty is exasperated by the fact that it

operates oppressively, unequally and unreasonably only against one

class of women. While Section 5 of the Act makes the availability and

applicability of the remedy as provided by Section 125 CrPC dependent

upon the whim, caprice, choice and option of the husband of the Muslim

divorcee who in the first place is sought to be excluded from the ambit of

Section 3 of the post-iddat period and, therefore, submitted that this

provision will have to be held unconstitutional.

This Court in Shah Banos case held that although Muslim

personal law limits the husbands liability to provide maintenance for

his divorced wife to the period of iddat, it does not contemplate a

situation envisaged by Section 125 CrPC of 1973. The Court held that it

would not be incorrect or unjustified to extend the above principle of

Muslim Law to cases in which a divorced wife is unable to maintain

herself and, therefore, the Court came to the conclusion that if the

divorced wife is able to maintain herself the husbands liability ceases

with the expiration of the period of iddat, but if she is unable to maintain

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herself after the period of iddat, she is entitled to recourse to Section 125

CrPC. This decision having imposed obligations as to the liability of

Muslim husband to pay maintenance to his divorced wife, Parliament

endorsed by the Act the right of a Muslim woman to be paid maintenance

at the time of divorce and to protect her rights.

The learned counsel have also raised certain incidental questions

arising in these matters to the following effect-

1) Whether the husband who had not complied with the

orders passed prior to the enactments and were in arrears

of payments could escape from their obligation on the

basis of the Act, or in other words, whether the Act is

retrospective in effect?

2) Whether Family Courts have jurisdiction to decide the

issues under the Act?

3) What is the extent to which the Wakf Board is liable

under the Act?

The learned counsel for the parties have elaborately argued on a

very wide canvass. Since we are only concerned in this Bench with the

constitutional validity of the provisions of the Act, we will consider only

such questions as are germane to this aspect. We will decide only the

question of constitutional validity of the Act and relegate the matters

when other issues arise to be dealt with by respective Benches of this

Court either in appeal or special leave petitions or writ petitions.

In interpreting the provisions where matrimonial relationship is

involved, we have to consider the social conditions prevalent in our

society. In our society, whether they belong to the majority or the

minority group, what is apparent is that there exists a great disparity in

the matter of economic resourcefulness between a man and a woman.

Our society is male dominated both economically and socially and

women are assigned, invariably, a dependant role, irrespective of the

class of society to which she belongs. A woman on her marriage very

often, though highly educated, gives up her all other avocations and

entirely devotes herself to the welfare of the family, in particular she

shares with her husband, her emotions, sentiments, mind and body, and

her investment in the marriage is her entire life a sacramental sacrifice

of her individual self and is far too enormous to be measured in terms of

money. When a relationship of this nature breaks up, in what manner

we could compensate her so far as emotional fracture or loss of

investment is concerned, there can be no answer. It is a small solace to

say that such a woman should be compensated in terms of money

towards her livelihood and such a relief which partakes basic human

rights to secure gender and social justice is universally recognised by

persons belonging to all religions and it is difficult to perceive that

Muslim law intends to provide a different kind of responsibility by

passing on the same to those unconnected with the matrimonial life such

as the heirs who were likely to inherit the property from her or the wakf

boards. Such an approach appears to us to be a kind of distortion of the

social facts. Solutions to such societal problems of universal magnitude

pertaining to horizons of basic human rights, culture, dignity and

decency of life and dictates of necessity in the pursuit of social justice

should be invariably left to be decided on considerations other than

religion or religious faith or beliefs or national, sectarian, racial or

communal constraints. Bearing this aspect in mind, we have to interpret

the provisions of the Act in question.

Now it is necessary to analyse the provisions of the Act to

understand the scope of the same. The Preamble to the Act sets out that

it is an Act to protect the rights of Muslim women who have been

divorced by, or have obtained divorce from, their husbands and to

provide for matters connected therewith or incidental thereto. A

divorced woman is defined under Section 2(a) of the Act to mean a

divorced woman who was married according to Muslim Law, and has

been divorced by, or has obtained divorce from her husband in

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accordance with Muslim Law; iddat period is defined under Section 2(b)

of the Act to mean, in the case of a divorced woman,-

(i) three menstrual courses after the date of divorce, if she is

subject to menstruation;

(ii) three lunar months after her divorce, if she is not subject to

menstruation; and

(iii) if she is enceinte at the time of her divorce, the period

between the divorce and the delivery of her child or the

termination of her pregnancy whichever is earlier.

Sections 3 and 4 of the Act are the principal sections, which are

under attack before us. Section 3 opens up with a non-obstante clause

overriding all other laws and provides that a divorced woman shall be

entitled to -

(a) a reasonable and fair provision and maintenance to be made

and paid to her within the period of iddat by her former

husband;

(b) where she maintains the children born to her before or after her

divorce, a reasonable 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 by her before or at the time of

marriage or after the marriage by her relatives, friends,

husband and any relatives of the husband or his friends.

Where such reasonable and fair provision and maintenance or the

amount of mahr or dower due has not been made and 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. Rest of

the provisions of Section 3 of the Act may not be of much relevance,

which are procedural in nature.

Section 4 of the Act provides that, with an overriding clause as to

what is stated earlier in the 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 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. If any of the relatives do not have the

necessary means to pay the same, the Magistrate may 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. Where a divorced woman is unable to maintain herself

and she has no relatives as mentioned in sub-section (1) or such

relatives or any one of them has 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

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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, functioning in the area in which the divorced woman

resides, to pay such maintenance as determined by him as the case may

be. It is, however, significant to note that Section 4 of the Act refers only

to payment of maintenance and does not touch upon the provision to

be made by the husband referred to in Section 3(1)(a) of the Act.

Section 5 of the Act provides for option to be governed by the

provisions of Sections 125 to 128 CrPC. It lays down that if, on the date

of the first hearing of the application under Section 3(2), a divorced

woman and her former husband declare, by affidavit or any other

declaration in writing in such form as may be prescribed, either jointly or

separately, that they would prefer to be governed by the provisions of

Sections 125 to 128 CrPC, and file such affidavit or declaration in the

court hearing the application, the Magistrate shall dispose of such

application accordingly.

A reading of the Act will indicate that it codifies and regulates the

obligations due to a Muslim woman divorcee by putting them outside the

scope of Section 125 CrPC as the divorced woman has been defined as

Muslim woman who was married according to Muslim law and has been

divorced by or has obtained divorce from her husband in accordance

with the Muslim law. But the Act does not apply to a Muslim woman

whose marriage is solemnized either under the Indian Special Marriage

Act, 1954 or a Muslim woman whose marriage was dissolved either

under Indian Divorce Act, 1969 or the Indian Special Marriage Act, 1954.

The Act does not apply to the deserted and separated Muslim wives. The

maintenance under the Act is to be paid by the husband for the duration

of the iddat period and this obligation does not extend beyond the period

of iddat. Once the relationship with the husband has come to an end

with the expiry of the iddat period, the responsibility devolves upon the

relatives of the divorcee. The Act follows Muslim personal law in

determining which relatives are responsible under which circumstances.

If there are no relatives, or no relatives are able to support the divorcee,

then the Court can order the State Wakf Boards to pay the maintenance.

Section 3(1) of the Act provides that a divorced woman shall be

entitled to have from her husband, a reasonable and fair maintenance

which is to be made and paid to her within the iddat period. Under

Section 3(2) the Muslim divorcee can file an application before a

Magistrate if the former husband has not paid to her a reasonable and

fair provision and maintenance or mahr due to her or has not delivered

the properties given to her before or at the time of marriage by her

relatives, or friends, or the husband or any of his relatives or friends.

Section 3(3) provides for procedure wherein the Magistrate can pass an

order directing the former husband to pay such reasonable and fair

provision and maintenance to the divorced woman as he may think fit

and proper having regard to the needs of the divorced woman, standard

of life enjoyed by her during her marriage and means of her former

husband. The judicial enforceability of the Muslim divorced womans

right to provision and maintenance under Section (3)(1)(a) of the Act has

been subjected to the condition of husband having sufficient means

which, strictly speaking, is contrary to the principles of Muslim law as

the liability to pay maintenance during the iddat period is unconditional

and cannot be circumscribed by the financial means of the husband.

The purpose of the Act appears to be to allow the Muslim husband to

retain his freedom of avoiding payment of maintenance to his erstwhile

wife after divorce and the period of iddat.

A careful reading of the provisions of the Act would indicate that a

divorced woman is entitled to a reasonable and fair provision for

maintenance. It was stated that Parliament seems to intend that the

divorced woman gets sufficient means of livelihood, after the divorce and,

therefore, the word provision indicates that something is provided in

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advance for meeting some needs. 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 cloths, 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 a 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 no

where the Parliament has provided that reasonable and fair provision

and maintenance is limited only for the iddat period and not beyond it.

It would extend to the whole life of the divorced wife unless she gets

married for a second time.

The important section in the Act is Section 3 which provides that

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. The crux of the

matter is that the divorced woman shall be entitled to a reasonable and

fair provision and maintenance to be made and paid to her within the

iddat period by her former husband. The wordings of Section 3 of the

Act appear to indicate 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 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. 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 wifes mahr and restored her dowry as per

Section 3(1)(c) and 3(1)(d) of the Act. Precisely, the point that arose for

consideration in Shah Banos case was that the husband has not made a

reasonable and fair provision for his divorced wife even if he had paid

the amount agreed as mahr half a century earlier and provided iddat

maintenance and he was, therefore, ordered to pay a specified sum

monthly to her under Section 125 CrPC. This position was available to

Parliament on the date it enacted the law but even so, the provisions

enacted under the Act are a reasonable and fair provision and

maintenance to be made and paid as provided under Section 3(1)(a) of

the Act and these expressions cover different things, firstly, by the use of

two different verbs to be made and paid to her within the iddat period,

it is clear that a fair and reasonable provision is to be made while

maintenance is to be paid; secondly, Section 4 of the Act, which

empowers the magistrate to issue an order for payment of maintenance

to the divorced woman against various of her relatives, contains no

reference to provision. Obviously, the right to have a fair and

reasonable provision in her favour is a right enforceable only against the

womans former husband, and in addition to what he is obliged to pay as

maintenance; thirdly, the words of the Holy Quran, as translated by

Yusuf Ali of mata as maintenance though may be incorrect and that

other translations employed the word provision, this Court in Shah

Banos case dismissed this aspect by holding that it is a distinction

without a difference. Indeed, whether mata was rendered maintenance

or provision, there could be no pretence that the husband in Shah

Banos case had provided anything at all by way of mata to his divorced

wife. The contention put forth on behalf of the other side is that a

divorced Muslim woman who is entitled to mata is only a single or one

time transaction which does not mean payment of maintenance

continuously at all. This contention, apart from supporting the view that

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the word provision in Section 3(1)(a) of the Act incorporates mata as a

right of the divorced Muslim woman distinct from and in addition to

mahr and maintenance for the iddat period, also enables a reasonable

and fair provision and a reasonable and fair provision as provided

under Section 3(3) of the Act would be with reference to the needs of the

divorced woman, the means of the husband, and the standard of life the

woman enjoyed during the marriage and there is no reason why such

provision could not take the form of the regular payment of alimony to

the divorced woman, though it may look ironical that the enactment

intended to reverse the decision in Shah Banos case, actually codifies

the very rationale contained therein.

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 is 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.

Even under the Act, the parties agreed 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.

As on the date the Act came into force the law applicable to Muslim

divorced women is as declared by this Court in Shah Banos case. In

this case to find out the personal law of Muslims with regard to divorced

womens rights, the starting point should be Shah Banos case and not

the original texts or any other material all the more so when varying

versions as to the authenticity of the source are shown to exist. Hence,

we have refrained from referring to them in detail. That declaration was

made after considering the Holy Quran, and other commentaries or other

texts. When a Constitution Bench of this Court analysed Suras 241-242

of Chapter II of the Holy Quran and other relevant textual material, we do

not think, it is open for us to re-examine that position and delve into a

research to reach another conclusion. We respectfully abide by what has

been stated therein. All that needs to be considered is whether in the Act

specific deviation has been made from the personal laws as declared by

this Court in Shah Banos case without mutilating its underlying ratio.

We have carefully analysed the same and come to the conclusion that the

Act actually and in reality codifies what was stated in Shah Banos case.

The learned Solicitor General contended that what has been stated in the

Objects and Reasons in Bill leading to the Act is a fact and that we

should presume to be correct. We have analysed the facts and the law in

Shah Banos case and proceeded to find out the impact of the same on

the Act. If the language of the Act is as we have stated, the mere fact

that the Legislature took note of certain facts in enacting the law will not

be of much materiality.

In Shah Banos case this Court has clearly explained as to the

rationale behind Section 125 CrPC to make provision for maintenance to

be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or

destitution on the part of a Muslim woman. The contention put forth on

behalf of the Muslims organisations who are interveners before us is that

under the Act vagrancy or destitution is sought to be avoided but not by

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punishing the erring husband, if at all, but by providing for maintenance

through others. If for any reason the interpretation placed by us on the

language of Sections 3(1)(a) and 4 of the Act is not acceptable, we will

have to examine the effect of the provisions as they stand, that is, a

Muslim woman will not be entitled to maintenance from her husband

after the period of iddat once the Talaq is pronounced and, if at all,

thereafter maintenance could only be recovered from the various persons

mentioned in Section 4 or from the Wakf Board. This Court in Olga

Tellis v. Bombay Municipal Corporation, 1985(3) SCC 545, and Maneka

Gandhi v. Union of India, 1978 (1) SCC 248, held that the concept of

right to life and personal liberty guaranteed under Article 21 of the

Constitution would include the right to live with dignity. Before the

Act, a Muslim woman who was divorced by her husband was granted a

right to maintenance from her husband under the provisions of Section

125 CrPC until she may re-marry and such a right, if deprived, would

not be reasonable, just and fair. Thus the provisions of the Act depriving

the divoced Muslim women of such a right to maintenance from her

husband and providing for her maintenance to be paid by the former

husband only for the period of iddat and thereafter to make her run from

pillar to post in search of her relatives one after the other and ultimately

to knock at the doors of the Wakf Board does not appear to be

reasonable and fair substitute of the provisions of Section 125 CrPC.

Such deprivation of the divorced Muslim women of their right to

maintenance from their former husbands under the beneficial provisions

of the Code of Criminal Procedure which are otherwise available to all

other women in India cannot be stated to have been effected by a

reasonable, right, just and fair law and, if these provisions are less

beneficial than the provisions of Chapter IX of the Code of Criminal

Procedure, a divorced Muslim woman has obviously been unreasonably

discriminated and got out of the protection of the provisions of the

general law as indicated under the Code which are available to Hindu,

Buddhist, Jain, Parsi or Christian women or women belonging to any

other community. The provisions prima facie, therefore, appear to be

violative of Article 14 of the Constitution mandating equality and equal

protection of law to all persons otherwise similarly circumstanced and

also violative of Article 15 of the Constitution which prohibits any

discrimination on the ground of religion as the Act would obviously apply

to Muslim divorced women only and solely on the ground of their

belonging to the Muslim religion. It is well settled that on a rule of

construction a given statute will become ultra vires or unconstitutional

and, therefore, void, whereas another construction which is permissible,

the statute remains effective and operative the court will prefer the latter

on the ground that Legislature does not intend to enact unconstitutional

laws. We think, the latter interpretation should be accepted and,

therefore, the interpretation placed by us results in upholding the

validity of the Act. It is well settled that when by appropriate reading of

an enactment the validity of the Act can be upheld, such interpretation is

accepted by courts and not the other way.

The learned counsel appearing for the Muslim organisations

contended after referring to various passages from the text books to

which we have adverted to earlier to state that the law is very clear that a

divorced Muslim woman is entitled to maintenance only upto the stage of

iddat and not thereafter. What is to be provided by way of Mata is only

a benevolent provision to be made in case of divorced Muslim woman

who is unable to maintain herself and that too by way of charity or

kindness on the part of her former husband and not as a result of her

right flowing to the divorced wife. The effect of various interpretations

placed on Suras 241 and 242 of Chapter 2 of Holy Quran has been

referred to in Shah Banos case. Shah Banos case clearly enunciated

what the present law would be. It made a distinction between the

provisions to be made and the maintenance to be paid. It was noticed

that the maintenance is payable only upto the stage of iddat and this

provision is applicable in case of a normal circumstances, while in case

of a divorced Muslim woman who is unable to maintain herself, she is

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entitled to get Mata. That is the basis on which the Bench of Five

Judges of this Court interpreted the various texts and held so. If that is

the legal position, we do not think, we can state that any other position

is possible nor are we to start on a clean slate after having forgotten the

historical background of the enactment. The enactment though purports

to overcome the view expressed in Shah Banos case in relation to a

divorced Muslim woman getting something by way of maintenance in the

nature of Mata is indeed the statutorily recognised by making provision

under the Act for the purpose of the maintenance but also for

provision. When these two expressions have been used by the

enactment, which obviously means that the Legislature did not intend to

obliterate the meaning attributed to these two expressions by this Court

in Shah Banos case. Therefore, we are of the view that the contentions

advanced on behalf of the parties to the contrary cannot be sustained.

In Arab Ahemadhia Abdulla and etc vs. Arab Bail Mohmuna

Saiyadbhai & Ors. etc., AIR 1988 (Guj.) 141; Ali vs. Sufaira, (1988) 3

Crimes 147; K. Kunhashed Hazi v. Amena, 1995 Crl.L.J. 3371; K.

Zunaideen v. Ameena Begum, (1998] II DMC 468; Karim Abdul Shaik v.

Shenaz Karim Shaik, 2000 Cr.L.J. 3560 and Jaitunbi Mubarak Shaikh

v. Mubarak Fakruddin Shaikh & Anr., 1999 (3) Mh.L.J. 694, 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 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 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 the Punjab and Haryana High Court in Kaka v. Hassan Bano

& Anr., II (1998) DMC 85 (FB), has taken the view that under Section

3(1)(a) of the Act a divorced Muslim woman can claim maintenance

which is not restricted to iddat period. To the contrary it has been held

that it is not open to the wife to claim fair and reasonable provision for

the future in addition to what she had already received at the time of her

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 relative or Wakf Board, by majority decision in Umar Khan Bahamami

v. Fathimnurisa, 1990 Cr.L.J. 1364; Abdul Rashid v. Sultana Begum,

1992 Cr.L.J. 76; Abdul Haq v. Yasima Talat; 1998 Cr.L.J. 3433; Md.

Marahim v. Raiza Begum, 1993 (1) DMC 60. 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.

While upholding the validity of 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 the 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 Muslim husband to his divorced wife arising

under Section 3(1)(a) of the Act to pay maintenance is not

confined to iddat period.

3) A divorced Muslim woman who has not remarried and

who is not able to maintain herself after iddat period can

proceed as provided under Section 4 of the Act against

her relatives who are liable to maintain her in proportion

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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.

4) The provisions of the Act do not offend Articles 14, 15 and

21 of the Constitution of India.

In the result, the writ petition Nos. 868/86, 996/86, 1001/86,

1055/86, 1062/86, 1236/86, 1259/86 and 1281/86 challenging the

validity of the provisions of the Act are dismissed.

All other matters where there are other questions raised, the same

shall stand relegated for consideration by appropriate Benches of this

Court.

J.

[ G.B. PATTANAIK ]

J.

[ S. RAJENDRA BABU ]

J.

[ D.P. MOHAPATRA ]

J.

[ DORAISWAMY RAJU ]

J.

[ SHIVARAJ V. PATIL ]

SEPTEMBER 28, 2001.