THE SECRETARY, TAMIL NADU WAKF BOARD AND ANR. A

v.

SYED FATIMA NACHI

JULY, 9, 1996

[M.M. PUNCHHI AND SUJATA V. MANOHAR, JJ.]

Muslim Law :

Muslim Women (Protection of Rights on Divorce) Act, 1986:

Section 4--Divorced Muslim Woman-Unable to maintain herself and

not remarriecf---Provision of maintenance--Liability of State W-akf

Boarcf---He/d : Such divorced women not required to file petition in the first

·instance against her chilf!ren, parents and relatives who had no nieans to pay

B

c

her niaintenance in order to obtain negative orders to 111ove against State Wakf

Boarcf---She would be entitled to direct her claim against the Stare Wakf D

Board in the first instance and in that proceeding she could plead and prove

inability of her relatives in maintaining hei-lf the State WaAf Board co11-

trove1ted that her relatives had Che means to pay maintenance they could be

added as parties to the litigation.

Section 4( I )--Divorced Muslim IYoman,--Payment of mai11te11ance­

Liabi/ity of her heirs-Held : did not depend 011 the contingency that the

divorced woman had property which they would i11he1it-Fictionally, it is

deemed that she would have held property and would have died 011 the date

when need for identification arose.

E

F

The respondent was a Muslim divorced wife.

She filed a petition

against the State Wakf Board under Section 4(2) of the Muslim Women

(Protection of Rights

on Divorce) Act, 1986 seeking maintenance. The

appellant-Wakf Board moved the High Court praying for quashing of

proceedings

but the High Court declined to do so. The appellants had G

approached this Court for the same purpose.

On behalf of the appellant-Wakf Board it was contended that unless

sub-section

(1) of

Section 4 of the Act got exhausted by proper orders,

sub-section

(2) of Section 4 (in which the liability of the State Wakf Board

was

to be found) could not be invoked. H

271

272 SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A Dismissing the appeal, this Court

HELD : 1.1. The Drafter's lJattern in sub-dividing Section 4 of the

Muslim Women (Protection of Rights on Divorce) Act, 1986 into sub-sec­

tions (1) and (2) evidently was not to cause any split in the legislative theme

because the provision is

an integrated

"whole. One step is dependent on

B another. It is futile for a divoirced woman seeking succour to run after

relatives, be it her children, parents,

or other relatives, who are not

pos­

sessed of means to offer her maintenance and in lighting litigations in

succession against them, dragging them to courts of law in

order to obtain

negative orders justificatory to the

last resort of moving against the

State

C Wakf Board. She would instead be entitled to plead and prove such relevant

facts in one proceeding, as to the inability of her relations in maintaining

her and directing her claim against the

State Wakf Board in the first

instance.

It is, however, open

for the State Wakf Board to controvert that

the relations tnentioned in the provision, or son1e of them, have the means

to pay maintenance to her. In that event Magistrate would 11erfectly be

D justified in adding those relatives as parties to the litigation in order to

determine as towards whom shall he direct his orders for payment of

maintenance. In one

and the sa1ne proceeding, one or more orders con­

ceivably can be passed in favour of the divorced woman, subject of course

to her not ren1arrying and remaining unable to 1naintain herself.

E (277-E-H, 278-A)

F

1.2. The High Court committed no wrong in declining to interfere at

the initial stage of the proceedings at the behest of the appellants. They are

at liberty to take before the Magistrate hearing the matter, such defences as

are open to them on the merit of the matter and within the framework of

the legislative scheme embodied in Section

4 of the Act. (278-B]

Mohd.

Ahmad Khan v. Shah Bano Begom, (1985) 2

SCC 556, referred

to.

2. The liability of the relatives other

than the children and the

G parents, follows sequentially, subject

to the conditions as embodied in the

proviso. The liability of the relatives does not depend on the contingency

that the divorced woman has property which they would inherit. It looks

incongruous though

that a

dil'orced woman having property would yet be

unable to maintain herself. Seemingly, the phraseology has been' employed

to ascertain firstly such of the those relatives who could have inherited

her

H property, fictionally on the basis that she could be having property, and

TIIBSECY. T.N. WAKFBOARDv. SYEDFATIMANACHI [PUNCHHI,J.] 273

secondly as if she had died on the date when the lleed for identification A

arose. The speculative plea of any relative that he or she may not be

available to

be an heir on the date when the divorced woman would actually

die, would neither

be here nor there.

[276-B-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

~or~. B

From the Judgment and Order dated 16.3.94 of the Madras High

Court in Crl.O.P. No. 3557 of 1993.

S.K. Mehta and Dhruv Mehta for the Appellants.

U.U. Lalit, A.C. for the Respondents.

The Judgment of the Court was delivered hy

PUNCHHI, J. Special leave [,'Tauted.

The Secretary of the Tamil Nadu Wakf Board, Madras, and the

Superint~ndent of Wakfs, Tirunelveli, the appellants herein, are aggrieved

against an order of the High Court of Madras, dated 16.3. 1994 in Crl.O.P.

c

D

No. 3557/93 declining to interfere and quash a proceeding in M.C. No.

11/92 pending on the file of the Court of the Judicial Magistrate, Tiruchen- E

dur, in which the respondent -Syed Fatima Nachi - is claiming maintenance

as the applicant.

The respondent

is a Muslim divorced wife.

She filed a petit10n

against the appellants under Section 4(2) of the Muslim Women (Protec-

tion of Rights on Divorce) Act, 1986 (for short 'the Act') seeking main- F

tenance at the rate of Rs. 750 per mensem. The petition was founded on

the facts that she was married to one Syed Ahmed Moulana on 10.6.1980

in accordance with the tenets of Muslim Law and out of the wedlock, she

had procreated female twins on

6.4.1981. Her husband divorced her on

12.6.1986 and since then she has not remarried. Claiming that the respon- G

dent had no income or means to n1aintain herself, as well as her n1inor

female children, none of them owning any property, she was, thus, unable

to maintain herself and required intervention of the

Court in providing her

a suitable sum for maintenance. She claimed that she had earlier been

leading a good life as a married woman but after divorce, was in dire straits

and in suffering. She claimed that under the Mohammedan Law, a Muslim H

274 SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A \voman, in such circumstances, can get maintenance from her prospective

heirs. According to her, a host of relatives as given in the Act as well as

under the Mohammedan Law are responsible to provide maintenance to

her and if those are unable to

do so, the claim of maintenance must be met

by the Wakf Board. It was also maintained that neither her prospective

B

heirs nor her parents were in a position to provide maintenance to her and

thus there lay a bounden duty on Wakf Board to that effect; hence claim

of

Rs.

750 per mensem.

Instead of facing the petition on merit to its logical end, the appel­

lants,

who were the only respondents in that petition, moved the High

C Court of Madras praying for quashing of proceedings in exercise of its

diverse powers under the Code of Criminal

Procedure, but the High Court

declined to

do so. They have, in turn, approached this Court for the same

purpose, basing their claim on the same grounds

as before the High Court.

The

Parliament enacted the Act to undo the effect of a Constitution

D Bench decision of this Court in Mohd. Ahmad Kltan v. Shah Bano Begam,

[1985] 2 sec 556, because the said dycision was strongly opposed to by a

sizeable section

of the Muslim Community. The Act, as the

Preamble

suggests, came to protect the rights of Muslim women who have been

divorced

by, or obtained divorce from, their husbands and to provide for

E matters connected therewith or incidental thereto. The brief text of the Act

embodies the all important

Section 4 whereunder orders can be made for

payment of maintenance. The said provision

is reproduced hereunder :

F

G

H

n4_ Order for payment of maintenance. -

(1) Notwithstanding ani~hing cantained in the foregoing provisions

of this Act or 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

nzake

an order directing such or her relatives as would be entitled

to inherit her property on her death according to Muslim law to

pay such reasonable and fair n1aintenance to her as he may deter­

mine 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

TIIBSECY.T.N. WAKFBOARDv. SYED FATIMANACHl[PUNCHHI,J.] 275

order: A

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

B

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

Magistrale may,

on proof of such inability being furnished

·to him, C

order that the share of such relatives in the niaintenance 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 propor­

tions as

the Magistrate may think fit to order.

(2) Where a divorced woman is unable to maintain herself and D

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

relatives or any one of them have not enough means to pay the

maintenance

ordered by the Magistrate or the other relatives have

~ot 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 proviso

to sub-section (1), the Magistrate may,

by

order, direct the

State Wakf Board established under Section 9

E

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 n1aintenance as detennined by hin1

under sub-section (1) or, as the case may be, to pay the shares of F

such of the relatives who are unable to pay, at such periods as he

may specify in his order." (emphasis supplied)

A

bare reading of the provision shows that a divorced woman is

entitled to claim a reasonable

and fair maintenance from such of her

relatives as would be entitled to inherit her property on her death, accord­

ing

to Muslim Law, provided she has not re-married and is not able to

maintain herself.

Such maintenance, however, shall be payable by such

relatives in proportion

to the share which they would inherit in her property

G

and at such periods as the Magistrate may specify in his order. If the

divorced woman has children, the first proviso to sub-section (1) of Section

H

276 SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A 4 mandates that the liability to maintain her firstly lies on them. In the

event of her children being unable to maintain her, the liability shifts to her

parents under the same proviso. The liability of the relatives other than the

children and the parents, follows sequentially, subject to the conditions

as

embodied in the proviso. The liability of the relatives

do!"s not depend on

B the contingency that the divorced woman has property which they would

inherit.

It looks incongruous though that a divorced woman having property

would yet

be unable to maintain herself. Seemingly, the phraseology has

been employed to ascertain firstly such of those relatives who could have

inherited her property, fictionally on the basis that she could be having

property, and secondly

as if she had died an the date when the need for

C identification arose. The speculative plea of any relative that he or she may

not be available to be an heir on the date when the divorced woman would

actually die, would neither be

he:re nor there. Climbing down, if the

divorced woman has no relatives

as mentioned in sub-section (1) or rela­

tives

who have not enough means to pay her maintenance, the

State Wakf

D Board functioning

in the area, in which the divorced woman is resident,

has been foisted with the liability to pay suitable maintenance to her, on

the Magistrate's order and/or direction.

We have taken care to underline and emphasise certain words

in the

text of

Section 4 (supra). As is evident, there are more than one orders

E which are contemplated or conceived

of, to be passed by the Magistrate in

the morass of fluctuations, depending upon the existence of children,

parents and the heirs and their capability or inability of making payment

of maintenance and

as to its proportions. The

State Wakf Board comes at

the bottom of the list to shoulder the onus of payment of maintenance. The

F scheme of the provision

is, in a manner, unique in character, in grading

down the responsibility of payment of maintenance from one to the other

and finally coming

to rest on the

State Wakf Board, which is the last in line

to bear the burden.

The appellants would have us hold that sub-sections (1) and (2) of

G the Section 4 are mutually exclusive and the separate language employed

therein, to cover different situations, breeds further exclusivity, as it is

contemplated, that orders after orders might have to be passed by the

Magistrate

in the pursuit to grant the divorced wife maintenance. It has

been vehemently argued on behalf of the appellants that unless sub-section

H (1) of

Section 4 gets oxhausted by proper orders, sub-section (2) of Section

TIIESECY. T.N. WAKFBOARDv. SYED FATIMANACHJ [PUNCHHJ,J.] 277

4 (in which the liability of the State Wakf Board is lo be found) cannot be A

invoked. In other words, it is contended that in the present set of proceed­

ings, the appellants cannot be made to face or litigate about before the

Magistrate trying the matter. We regretfully do not agree to such line of

thinking. The appellants would have

us hold that the provision concedes

multiplicity of proceedings, broadly

in the following manner : (1) the

proceedings shall

in the first instance be initiated against the children of

B

the divorced woman; (2) if the children are unable to pay maintenance then

the second proceedings shall be initiated against the parents of the

divorced woman; (3) if the parents or any one of them

is unable to pay the

respective share of maintenance then fresh proceedings be started against

the relatives; ( 4)

in

case the relatives are unable to meet the claim of

maintenance, fresh proceedings be initiated against

11

othcr relatives!!; an<l.

(5) finally? when no relative exists as mentioned in sub-section (1) or such

relatives or any one of them unable to pay maintenance then another set

c

of proceedings be initiated against the State Wakf Board; all backed by the

orders of

t)le Magistrate. And since the State Wakf Board comes last, it is D

maintained that its turn instantly has not yet arrived because no proceed-

ings have been initiated against the relatives.

Going by the arguments and the reasoning adopted by the appellants,

it would,

in our way of thinking, have a devastating effect on the purpose

for which the provision

was enacted. The Drafter's pattern in sub-dividing

the provision into sub-sections (1) and (2) evidently

was not to cause any

split

in the legislative theme because the provision, as it appears to us, is

E

an integrated whole.

One step is dependent on another. It is futile for a

divorced woman seeking succour to run after relatives, be it her children,

parents, or other relatives, \Vho are not possessed of n1eans to offer her F

maintenance and in fighting litigations in succession against them, dragging

them to courts of law in order to obtain negative orders justificatory to the

last resort of moving against the state Wakf Board.

In our considered view,

she would instead be entitled to plead and prove such relevant facts in one

proceeding, as to the inability of her relations aforementioned, maintaining

G

her and directing her claim against the State Wakf Board in the first

instance.

It is, however, open for the

State Wakf Board to controvert that

the relations mentioned in the provision, or some of them, have the means

to pay maintenance to her. In that event the Magistrate would perfectly be

justified

in adding those relatives as parties to the litigation in order to

determine as

_towards whom shall he direct bis orders for payment of H

278 SUPREME COURT REPORTS (1996] SUPP. 3 S.C.R.

A maintenance. In one an<l the same proceeding, one or more orders con­

ceivably can be passed in favour of the divorced woman, subject of course

to her not re-marrying and remaining un,1ble to maintain herself. We hold

accordingly.

B

c

We are thus satisfied that the High Court committed no wrong in

declining to interfere al the initial stage of the proceedings at the behest

of the appellants. They are at liberty to take before the Magistrate hearing

the matter, such defences

as are open to them on the merit of the matter

and within the framework of the

le1,islative scheme embodied in Section 4 . ,,

of the Act.

Before parting with the judgment, it need be taken into account that

notice lo the respondent

was issued, subject lo the appellant depositing a

sum of Rs.

10,000 in this Court, irrespective of the result of this case, for

the benefit of the respondent, lo obtain it and defray the litigation expen­

ses. The respondent,

in turn, did not engage a counsel but despatched a

D letter lo this Court, praying that some counsel be arranged

by the Court

to represent her and that she be remitted the said sum of Rs.

10,000. ln

such a situation,

we had appointed Mr.

Uday Umcsh Lalit, learned counsel

as an anzicus Cluiae to assist us in the matter on her behalf. We had the

advantage of his able assistance in appreciating this matter. In our view, he

E deserves a remuneration of Rs. 3,000. The Registry is directed accordingly,

to make payment to Mr. Lalit out

of the sum deposited. The balance sum

of

Rs.

7,000 be remitted to the respondent as succour, to tide over her

. financial difficulties, which

is ordered not to be taken into account or

reckoned in determining any claim_ for maintenance.

F For the afore reasons, this appeal is dismissed.

V.S.S. Appeal dismissed.