Undang-undang ini (The Muslim Women (Protection of Rights on
Divorce) Act 1986)
terpakai kepada seluruh India kecuali bagi negeri Jammu dan Kashmir. Ia
ditadbir oleh mana-mana majistret kelas pertama yang menjalankan bidang kuasa
di bawah Kanun Prosedur Jenayah 1973.
Seksyen 3(3)(b) Akta ini adalah
merujuk kepada peruntukan dan tuntuan bayaran mut’ah dalam ertikata tafsiran.
Akta ini ada di tafsirkan dengan jelas oleh Mahkamah Agung India dalam kes Daniel Latif v Union of India AIR 2001
SC 3958 apabila memutuskan isu persoalan samada Akta ini sah di bawah
Perlembagaan India.
Kes ini juga menyokong keputusan kes Shah Bano sebagai telah
menetapkan Undang-Undang masa depan di India [berkaitan tuntutan mut’ah / mata].
!!!!!!!!!!!!!!!!!!!!!!!!!!
Danial
Latifi & Anor vs Union
Of India AIR 2001 SC 3958
DATE OF JUDGMENT: 28/09/2001
BENCH: G.B. Pattanaik, S. RAjendra Babu, D.P.
Mohapatra,
Doraiswamy Raju & Shivaraj V. Patil
JUDGMENT: 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 v 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 husband’s 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 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.
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 wife’s 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 Bano’s
case ineffective.
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 Bano’s
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 divorced wife, who is unable to
maintain herself.
As held in Shah Bano’s case, the true position is that
if the divorced wife is able to maintain herself, the husband’s 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 husband’s 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 v Ali Hussain
Fidaalli Chothia, (1979) 2 SCC 316, and Fuzlunbi v 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 Bano’s 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 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 Bano’s 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 Bano’s case. He submitted that this Court has hazarded
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 v 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 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 Bano’s 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 Bano’s case on the expression mata
is not correct and the whole object of the enactment has been to nullify the
effect of the Shah Bano’s 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 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 Bano’s case held that although Muslim
personal law limits the husband’s 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 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 counsels 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 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 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 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 nowhere 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 wife’s 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 Bano’s 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 woman’s 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 Bano’s 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 Bano’s 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 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 Bano’s 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 Bano’s
case. In this case to find out the personal law of Muslims with regard to
divorced women’s rights, the starting point should be Shah Bano’s 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 Bano’s 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 Bano’s 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 Bano’s
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 Bano’s 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 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 Bano’s case.
Shah Bano’s 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 up to
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 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 Bano’s 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 Bano’s 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 v. Arab Bail
Mohmuna Saiyadbhai & Ors. etc., AIR 1988 (Guj.) 141; Ali v. 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 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.
