TaxTMI 
TaxTMI 
2024 (7) TMI 1728
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....ayable by the Appellant herein from INR 20,000/- (Rupees Twenty Thousand only) per month to INR 10,000/- (Rupees Ten Thousand only) per month. 3. As per the Appellant, the brief facts leading to the instant appeal are that the Appellant herein was the husband of the Respondent No. 02. Both the parties entered the matrimonial consortium on 15.11.2012. However, as their relationship deteriorated, Respondent No. 02 left the matrimonial home on 09.04.2016. Subsequently, Respondent No. 02 initiated criminal proceedings against the Appellant by lodging FIR No. 578 of 2017 for offences punishable under Sections 498A and 406 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC 1860"). In response, the Appellant herein pronounced a triple talaq on 25.09.2017 and moved for divorce before the office of Quzath seeking a declaration of divorce, which was eventually granted ex parte, and the divorce certificate was issued on 28.09.2017. 4. It is further claimed that he attempted to send INR 15,000/- (Rupees Fifteen Thousand only) apropos maintenance for the iddat period, which the Respondent No. 02 is said to have refused. Instead, she moved a petition for interim maintenance un....
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....ed on paragraph numbers 03, 07, 08, and 09 of the judgment in Iqbal Bano v. State of Uttar Pradesh and Another (2007) 6 SCC 785. Another limb of his submission is based upon the transitional provision of Section 7 of the 1986 Act, in an attempt to establish supersedence and clarity as to the intent of the legislature on prevalence of the 1986 Act and the procedure and rights contemplated therein. 8. To assist this Court, Mr Gaurav Agrawal, Senior Advocate, was appointed as amicus curiae vide Order dated 09.02.2024, who eventually went on to submit that the remedy under a secular statutory provision of Section 125 of CrPC 1973 is not foreclosed for a divorced Muslim woman by virtue of enactment of a personal law remedy under Section 3 of the 1986 Act to the limited extent of maintenance, as the latter does not in any manner, expressly or by necessary implication, bar the exercise of former remedy. To buttress this submission, he went on to highlight the distinction between the very object and purpose of the aforesaid provisions. Mr Agrawal, while also extensively referring to the 5-Judge Bench decision in Danial Latifi (supra), goes on to submit that the explicit question as to w....
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....rself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under th....
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....living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent." 12. Numerous decisions of this Court went on to state that Section 125 of CrPC 1973 is a measure for social justice to protect the weaker sections, irrespective of applicable personal laws of the parties, as contemplated through Articles 15(3) and 38 of the Constitution of India. This Court similarly held in the decision of Shri Bhagwan Dutt v. Smt. Kamla Devi and Another (1975) 2 SCC 386 that the nature of power and jurisdiction vested with a Magistrate by virtue of the instate provision is not punitive in nature and neither it is remedial, but it is a preventive measure. It was also observed that while any such right may or may not exist as a consequence of any of the personal laws applicable to the concerned parties, they shall continue to exist distinctively, and independently as against the secular provision. 13. The purpose of Section 125 of CrPC 1973 has been spelt out to prevent vagrancy and ....
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....ive with her husband who has contracted another marriage, let alone three or four other marriages. 16. After the pronouncement of the aforesaid verdict, a controversy is said to have emerged anent the true obligations of a Muslim husband to pay maintenance to his divorced wife, particularly beyond the iddat period. The Parliament, as an attempt to clarify the position, brought about the 1986 Act. Herein, it was sought to specify the entitlements of such a woman at the time of divorce. Section 3 of the 1986 Act deals with this aspect and reads as follows: "3. Mahr or other properties of Muslim woman to be given to her at the time of divorce.- (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to- (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair 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; ....
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.... 1974), and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code." 17. After the 1986 Act came into force, a series of writ petitions were moved before this Court challenging its constitutional validity on ground of being violative of Articles 14, 15 and 21 of the Constitution of India. Sections 3 and 4 of the 1986 Act were the principal sections under attack as part of the said writ petitions. Section 3, which opens up with a non-obstante clause seeking to override the application of all other existing laws, was carefully perused by this Court in the common verdict rendered on the constitutional validity in the decision in Danial Latifi (supra). Elaborating on the prevalence of Section 125 of CrPC 1973 as a secular protection available to women across communities, it was observed in paragraph number 33 as follows: "33. In Shah Bano case [(1985) 2 SCC 556: 1985 SCC (Cri) 245] this Court has clearl....
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.... 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 on another construction which is permissible, the statute remains effective and operative the court will prefer the latter on the ground that the 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 appropr....
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....ection 125 CrPC could be invoked as contained in Section 5 of the Act and even otherwise, the Magistrate under the Act has the power to grant maintenance in favour of a divorced woman, and the parameters and considerations are the same as those in Section 125 CrPC. It is undoubtedly true that in the case in hand, Section 5 of the Act has not been invoked. Necessarily, therefore, the Magistrate has exercised his jurisdiction under Section 125 CrPC. But, since the Magistrate retains the power of granting maintenance in view of the Constitution Bench decision in Danial Latifi case [(2001) 7 SCC 740] under the Act and since the parameters for exercise of that power are the same as those contained in Section 125 CrPC, we see no ground to interfere with the orders of the Magistrate granting maintenance in favour of a divorced Muslim woman. In fact, Mr Qamaruddin, learned counsel appearing for the appellants, never objected to pay maintenance as ordered by the Magistrate. But, he seriously disputes the findings of the Magistrate on the status of the parties and contends that the Magistrate was wholly in error in coming to the conclusion that there has been no divorce between the parties i....
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....woman and the parameters and the considerations are the same as stipulated in Section 125 of the Code. We may note that while taking note of the factual score to the effect that the plea of divorce was not accepted by the Magistrate which was upheld by the High Court, the Constitution Bench [(2001) 7 SCC 740 : (2007) 3 SCC (Cri) 266] opined that as the Magistrate could exercise power under Section 125 of the Code for grant of maintenance in favour of a divorced Muslim woman under the Act, the order did not warrant any interference. Thus, the emphasis was laid on the retention of the power by the Magistrate under Section 125 of the Code and the effect of ultimate consequence. 14. Slightly recently, in Shabana Bano v. Imran Khan [(2010) 1 SCC 666 : (2010) 1 SCC (Civ) 216 : (2010) 1 SCC (Cri) 873], a two-Judge Bench, placing reliance on Danial Latifi [(2001) 7 SCC 740 : (2007) 3 SCC (Cri) 266], has ruled that : (Shabana Bano case [(2010) 1 SCC 666 : (2010) 1 SCC (Civ) 216 : (2010) 1 SCC (Cri) 873], SCC p. 672, para 21) '21. The appellant's petition under Section 125 CrPC would be maintainable before the Family Court as long as the appellant does not remarry. The ....
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....the decision in Danial Latifi (supra), numerous High Courts also went on to contemplate and analyse the instant question of law. A quick examination of the said judgment by various High Courts allows us to categorise the decisions rendered therein into two sets of views. The first view in certain judgments so rendered held that the remedy is to be exclusively exercised under Section 3 of the 1986 Act, impliedly holding that the rights under the secular provisions stood extinguished. Another view in certain other judgments allowed a divorced Muslim woman to seek the remedy of maintenance under Section 125 of CrPC 1973 while explicit existence of Section 3 of the 1986 Act was recognised. 25. The set of judgments, that went on to hold that the rights of a divorced Muslim woman are to be exercised through the provisions of the 1986 Act and specifically under Section 3 therein, and, not through the secular provision of Section 125 of CrPC 1973. One decision by a Single Judge of the High Court of Allahabad in Shahid Jamal Ansari v. State of Uttar Pradesh 2008 SCC OnLine All 1077 is brought to our attention by the learned amicus curiae whereby the Court opined that a divorced Muslim wo....
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....ntention in regard to the existence of non-obstante clause in Sections 3 and 4 of the 1986 Act, it is undoubtedly clarified by the Constitution Benches of this Court that the same cannot promptly be deemed to override any other rights so provided by the enactments of the legislature. We are, accordingly, also bound by the Doctrine of stare decisis contemplated through Article 141 of the Constitution of India to accept the said observations. Furthermore, a bare perusal of Section 7 of the 1986 Act, reflects the same to be transitionary in nature and the interpretations in respect of Section 5 of the 1986 Act, as highlighted above through numerous decisions, reflect our inability to accept the passionate contentions of the learned Senior Advocate on behalf of the Appellant. 29. Thus, the High Court of Telangana, while modifying the Order(s) of the Family Court, was correct in upholding the maintainability of the petition filed under Section 125 of CrPC 1973 by Respondent No. 02 herein. Therefore, there is no infirmity in its Impugned Order dated 13.12.2023. 30. In addition, Mr Agrawal proceeded to put forth a question before us that whether fulfilment of a divorced Muslim woman....
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....rce 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 clothes, and other articles. The expression "within" should be read as "during" or "for" and this cannot be done because words cannot be construed contrary to their meaning as the word "within" would mean "on or before", "not beyond" and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time 29. The important section in the Act is ....
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....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 case [(1985) 2 SCC 556 : 1985 SCC (Cri) 245] 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 case [(1985) 2 SCC 556 : 1985 SCC (Cri) 245] 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 onetime 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....
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....declare the law foolproof fashion: (1) Section 127(3)(b) has a setting, scheme and a purpose and no talaq of the purpose different from the sense is permissible in statutory construction. (2) The payment of an amount, customary or other, contemplated by the measure must inset the intent of preventing destitution and providing a sum which is more or less the present worth of the monthly maintenance allowances the divorcee may need until death or remarriage overtake her. The policy of the law abhors neglected wives and destitute divorcees and Section 127(3)(b) takes care to avoid double payment one under custom at the time of divorce and another under Section 125. (3) Whatever the facts of a particular case, the Code, by enacting Sections 125 to 127, charges the court with the humane obligation of enforcing maintenance or its just equivalent to ill-used wives and castaway ex-wives, only if the woman has received voluntarily a sum, at the time of divorce, sufficient to keep her going according to the circumstances of the parties. (4) Neither personal law nor other salvationary plea will hold against the policy of public law pervading Section 127(3)(....
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....reasonable substitute" has been provided for by the husband as per their personal or customary laws at the time of their divorce, the maintenance provided for by a Magistrate or a Family Court, as the case may be, under Section 125 of CrPC 1973, can be reduced to the extent of deemed double benefit being given to a divorced wife. 37. From the aforementioned, we are inclined to conclude that equivalent rights of maintenance ascertained under both, the secular provision of Section 125 of CrPC 1973, and the personal law provision of Section 3 of the 1986 Act, parallelly exist in their distinct domains and jurisprudence. Thereby, leading to their harmonious construction and continued existence of the right to seek maintenance for a divorced Muslim woman under the provisions of CrPC 1973 despite the enactment of the 1986 Act. 38. Accordingly, the decisions, as rendered by various High Courts, one of which has been referred as aforesaid, or even otherwise, and stand in contradistinction to the observations made hereinabove, do not lay down the correct position of law, are, therefore, bad in law. 39. We note and acknowledge the able assistance rendered by the learned amicus curia....
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....uch child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct; Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Explanation. - For the purposes of this Chapter,- a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (3) If any person so ordered fails without sufficient cause to comply with the order, any s....
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....it, and the person has to pay the same as directed. 3. Since the present case revolves around the expression "a wife who is unable to maintain herself", it is relevant to dwell further on the definition of a wife under Section 125 of the CrPC. Explanation (b) thereto defines a wife to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The definition being inclusive is therefore expansive in nature. A divorced woman who has not remarried as well as a wife are placed on par for the purpose of seeking maintenance. 4. The States of Madhya Pradesh, Maharashtra, Rajasthan, Tripura, Uttar Pradesh and West Bengal have made State Amendments to Section 125 of the CrPC. Right to maintenance in a constitutional context: 5. Section 125 of the CrPC is a measure of social justice with a view to protect women and children and is aligned to the salutary object enshrined in Article 15(1) and (3) of the Constitution read with Article 39(e) of the Constitution. For immediate reference, Article 15(1) and (3) and Article 39(e) are reproduced as under: "15. Prohibition of discrimination on grounds of religion, race, caste, sex....
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....ticularly, if she is unable to maintain herself. If he neglects or refuses to do so, the wife is legally entitled to enforce the said right by filing a petition under Section 125 of the CrPC irrespective of any other right created in favour of the wife under any other law. Therefore, the passing of the 1986 Act, in my view, cannot militate against or dilute the salutary nature of Section 125 of the CrPC. The object of this provision is to save a wife including a divorced woman from deprivation and destitution. 9. The salutary parliamentary intent behind Section 488 of the erstwhile CrPC was exposited by Subba Rao, J., (as the learned Chief Justice of India then was) in Jagir Kaur vs. Jaswant Singh, (1964) 2 SCR 73. It was held that "Chapter 36 of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose." After the enactment of the CrPC, 1973, this Court in Bhagwan Dutt vs. Kamla Devi, (1975) 2 SCC 386, held that in order to subserve the object of Section 125(1) of the CrPC the Magistrate must determine the wife's requirements in such a manner that prevents vagrancy and destitution. While assuring the aggrieved woman a stand....
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....s Lordship then was). While dismissing a Muslim husband's constitutional challenge to Section 125 of the CrPC, the High Court held that the salutary provision was enacted to achieve the ends of social welfare and reform. Therefore, no claim of violation of the fundamental right to practice religion under Article 25 could be sustained. Of particular relevance was the interpretation of Section 127(3)(b) of the CrPC. The High Court found that an attempt may be made to rely upon Section 127(3)(b) to 'destroy the effectiveness of Section 125' and deny its benefit to rightful claimants. For the sake of clarity, the said provision is extracted as under: "127. Alteration in allowance.- (1) On proof of a change in the circumstances of any person, receiving under section 125 a monthly allowance, for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be. (2) Where it appears to the Magis....
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....li Chothia, (1979) 2 SCC 316 is also instructive in this respect. This Court was confronted with the application of Section 125 of the CrPC by a Muslim woman who had been divorced through a consent decree. The husband had challenged the award of maintenance before the Sessions Judge on the ground that the Magistrate lacked jurisdiction to ascertain whether the petitioner-wife was a 'wife' within the meaning of Section 125. Since the High Court had not interfered with the view of the Sessions Judge, the Supreme Court granted leave and held that a destitute divorcee would be covered within the protection of Section 125 since she was suffering neglect. Krishna Iyer, J. emphasised the constitutional import of Section 125 in the following words: "7. The meaning of meanings is derived from values in a given society and its legal system. Article 15(3) has compelling, compassionate relevance in the context of Section 125 and the benefit of doubt, if any, in statutory interpretation belongs to the ill-used wife and the derelict divorcee. This social perspective granted, the resolution of all the disputes projected is easy. Surely, Parliament, in keeping with Article 15(3) and delib....
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....f of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance." 16. This carefully balanced and gender-just interpretation further guided our jurisprudence in Fuzlunbi vs. K. Khader Vali, (1980) 4 SCC 125 and Mohd. Ahmed Khan vs. Shah Bano Begum, (1985) 2 SCC 556 ("Shah Bano") insofar as the application of Section 125 to persons governed by Muslim Personal Law was concerned. In Shah Bano, this Court held that Section 125 overrides personal law of Muslims and hence a divorced Muslim woman is a "wife" within the meaning of this provision. The crux of these judgments is that an order under Section 127 ought to be a reasoned order and shall only allow an order for maintenance to be cancelled if a judge was satisfied that the divorced woman had received a sufficient amount of maintenance under any customary or personal law. In Danial Latifi vs. Union of India, (2001) 7 SCC 740 ("Danial Latifi"), this Court has recorded that there was a big uproar after the judgment in Shah Bano was pronounced and Parliament enacted the 1986 Act "perhaps, with an intention of making the decision in Shah Bano ineffective."....
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.... (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to- (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair 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 before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. (2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of subsection (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 a....
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....ay make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order: Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her: Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other rela....
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.... 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 husband's 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 the 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." 20. This Court aptly summarised the position of a dependent married woman and her desperation on divorce in para 20 the judgment in Danial Latifi in the following words: "20. 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 resourcefu....
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....iod in terms of Section 3(1)(a) of the Act. (2) Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to the iddat period. (3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. 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." 22. This Court, while interpreting the 1986 Act, specifically repelled the contention that the 1986 Act was enacted to undo the effect of Shah Bano in the following words: "26. 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....
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....ed 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. xxx xxx xxx 30. A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners." (underlining by me) Although the provisions of the 1986 Act have been upheld by this Court, the controversy raised....
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....lay between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899), (2023) SCC OnLine SC 1666, in paragraph 84 of the said judgment considered the implication of a non-obstante clause in a provision with reference to Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447, wherein it was observed as under: "84. xxx "67. A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provisions of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment." ....
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....expressions: maintenance and provision. These expressions allow sufficient interpretive amplitude to reconcile the Muslim personal law with the secular law of maintenance bearing in mind the constitutional objective of preserving and promoting the dignity of Muslim women. The expression 'provision' denotes a forward-looking approach. It could not be circumscribed to the period of iddat but any limit on the same had to have a nexus to the vagrancy of the wife and the sufficiency of maintenance. Therefore, Section 3(1)(a) entitles the divorced wife to an amount that would be necessary in view of her essential expenses on residence, food, clothing, medicine etc. 28. I find that the 1986 Act was upheld by this Court in Danial Latifi on the basis of a purposive interpretation that mitigated the possibility of the absurd consequence of denying access to justice to a divorced Muslim woman. The premise of such an interpretation is that the expression "divorced woman" is defined in Section 2(a) of the said Act to mean a Muslim woman who has married according to Muslim law and has been divorced by, or has obtained divorce from, her husband in accordance with Muslim Law. A plain reading of....
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....he fact that the Magistrate can order for maintenance of a divorced Muslim woman being entitled to maintenance as per the provisions of the said Act. Further, sub-section (1) of Section 4 takes into consideration the period after the iddat period while sub-section (1) of Section 3 deals with a period which is within the iddat period. This Section is akin to Section 125 of the CrPC for a reasonable and fair provision of maintenance to be made. 30. In my view, the rights created under the provisions of the 1986 Act are in addition to and not in derogation of the right created under Section 125 of the CrPC, and the same is the basis for this Court's conclusion in Danial Latifi to save the 1986 Act from the vice of unconstitutionality. This is because nowhere in the judgment of this Court in the aforesaid case is there a reference to any bar under the provisions of the 1986 Act and neither has this Court created any such bar in the aforesaid judgment for a divorced Muslim woman to approach the Court under Section 125 of the CrPC for maintenance. Thus, the non-obstante clause in Sub-section (1) of Section 3 cannot result in Sections 3 and 4 of the 1986 Act whittling down the applicat....
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....ursue the remedies under Sections 125 to 128 of the CrPC by way of a written application on the first date of hearing of an application under Section 3 of the 1986 Act. The provision seeks to provide an option that can be mutually exercised by the Muslim woman and her former husband. The deliberate use of the words 'option' and 'former husband' demonstrates that Section 5 does not statutorily confine the circumstances under which the claim of maintenance of a divorced Muslim woman can be governed under the secular law of maintenance. Similarly, Section 7, being a transitional provision, only determines that every pending application under Section 125 of the CrPC for maintenance at the time of commencement of the 1986 Act would be disposed of in accordance with the provisions of 1986 Act. The purpose of a transitional provision is to mitigate uncertainty from the minds of the litigants who were faced with the peculiar situation with respect to pending maintenance applications and the possibility of fresh applications being filed under the 1986 Act as per the option of the parties. The use of the expression in Section 7 of the 1986 Act 'notwithstanding anything contained in that Code....
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....nclude 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 remarry and such a right, if deprived, would not be reasonable, just and fair. Thus the provisions of the Act depriving the divorced 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 obvi....
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....sonal law. This is consistent with the settled norms of judicial review of legislative enactments whereby this Court reads a provision that is found to offend a constitutional guarantee to save its constitutionality, vide Binoy Viswam vs. Union of India, (2017) 7 SCC 59, Pr. 83. Therefore, while extending the scope of 'reasonable and fair provision' in the 1986 Act to the entire lifetime of Muslim women, it was noted in paragraph 28 of Danial Latifi that 'nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period.' Thus, it was held that an interpretative approach de hors the social facts and questions touching upon basic human rights should invariably be decided on constitutional considerations. Therefore, the Parliament's enactment cannot be construed to intend unjust consequences according to this Court. This is because under the provision of 1986 Act if during iddat period, no provision is made for the entire life of the divorced wife or if the same is inadequate particularly with the passage of time then Section 125 of the CrPC can be resorted to. From the above, it can also be noted that if Section 3 read with....
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....tice. Therefore, a technical or pedantic interpretation of the 1986 Act would stultify not merely gender justice but also the constitutional right of access to justice for the aggrieved Muslim divorced women who are in dire need of maintenance. This Court would not countenance unjust or Faustian bargains being imposed on women. The emphasis is on sufficient maintenance, not minimal amount. After all, maintenance is a facet of gender parity and enabler of equality, not charity. It follows that a destitute Muslim woman has the right to seek maintenance under Section 125 of the CrPC despite the enactment of the 1986 Act. Thus, an application for maintenance under Section 125 of the CrPC would not prejudice another application under Section 3 of the 1986 Act insofar as the latter is additional in nature and does not pertain to the same requirements sought to be provided for by Section 125 of the CrPC. One cannot be a substitute for or supplant another; rather it is in addition to and not in derogation of the other. 39. In this context, it would be apposite to take note of this Court's pertinent observations in Rana Nahid @ Reshma @ Sana vs. Sahidul Haq Chisti, (2020) 7 SCC 657. The ....
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....effect of supersession of Section 125 of the CrPC and cannot be allowed 'to demolish or extinguish the existing right unless the legislative intention is clear, manifest and unambiguous'. I also find force in Indira Banerjee J's reasoning that the 1986 Act manifests the Parliament's intent to protect and further the rights of Muslim women. Placing reliance upon the right to be treated equally irrespective of religion, as it is enshrined in Article 2 of the Universal Declaration of Human Rights and Articles 14 and 26 of the International Covenant on Civil and Political Rights, the learned judge held that Muslim women cannot be afforded a lesser degree of protection than other classes of women. It was also held that: "57. The Convention on the Elimination of All Forms of Discrimination against Women, 1979, commonly referred to as CEDAW, recognises amongst others, the right of women to equality irrespective of religion, as a basic human right. Article 2 of CEDAW exhorts State parties to ensure adoption of a woman-friendly legal system and woman-friendly policies and practices. 58. As a signatory to CEDAW, India is committed to adopt a woman-friendly legal system and ....
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....ere a divorced woman maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance has to be made and paid by her former husband only for a period of two years from the respective dates of birth of such children and not beyond the said period. However, under Section 125 of the CrPC, there is no such restriction of maintenance to be provided only for a period of two years from the respective dates of birth of such children in the case of a divorced wife. The obligation is until the children attain the age of majority and in terms of the said Section. iv. What is of further significance is the fact that by Act 50 of 2001 [by Section 2(i)(a)] w.e.f. 24.09.2001, sub-section (1) of Section 125 of the CrPC has been amended to delete the words "not exceeding 500 rupees in the whole". By way of this omission, there is no upper limit fixed for payment of maintenance under the said provision. Therefore, Section 125 of the CrPC is a more beneficial provision as compared to the provisions of the 1986 Act vis-à-vis a Muslim divorced woman in the context of the obligations of a former husband and the rights of a divorced Muslim wo....
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....ns 125 to 128 of the CrPC to such a divorced woman inasmuch it is necessary for her former husband to concur to be governed by the provisions of Sections 125 to 128 of the CrPC. This means that an option is given to the former husband of a divorced Muslim woman to concur or not to do so. In other words, if there is no such concurrence by the former husband then the aforesaid provisions of the CrPC would not be made applicable to a proceeding initiated under subsection (2) of Section 3. Such a fetter, in my view, is of no consequence if a Muslim divorced woman can unilaterally maintain an application under Section 125 of the CrPC before the Magistrate or the Family Court, in which event when she unilaterally files such an application, there is no necessity of seeking a declaration from the former husband as required under Section 5 of the 1986 Act. vii. On the other hand, if a divorced Muslim woman files an application for maintenance under Section 125 of the CrPC, there is no provision for considering the same under Section 3 of the 1986 Act. The reasons for the same are not far to see: firstly, because Section 125 of the CrPC and Section 3(1) of the 1986 Act operate in tw....
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....er also files an application under Section 3 or Section 4 of the 1986 Act and an order is made under the said Act also, in such an event, there could be an alteration in the order of payment for maintenance or interim maintenance, as the case may be, under Section 127 of the CrPC. This is in order to ensure that there is no double benefit which would be availed by a divorced Muslim woman under Section 125 of the CrPC as well as under the 1986 Act. x. Hence, what emerges is that the 1986 Act is not a substitute for Section 125 of the CrPC and nor has it supplanted it and both can operate simultaneously at the option of a divorced Muslim woman as they operate in different fields. As I find no conflict between the provisions of the 1986 Act, which is a piece of legislation in the nature of quasipersonal law insofar as the divorced Muslim wife is concerned and Section 125 of the CrPC which is a statutory provision applicable to women belonging to all faiths therefore the latter cannot be restricted in its operation to divorced Muslim women. I find that if Section 125 of the CrPC is excluded from its application to a divorced Muslim woman, it would be in violation of Article 15....
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....e charity to a matter of parity and rights, essential for women. It is necessary to extract the pertinent observations as under: "14. ... the outmoded and antiquated view that the object of s. 488 was to provide an effective and summary remedy to provide for appropriate food, clothing and lodging for a wife. This concept has now become completely out dated and absolutely archaic. After the International Year of Women when all the important countries of the world are trying to give the fair sex their rightful place in society and are working for the complete emancipation of women by breaking the old shackles and bondage in which they were involved, it is difficult to accept a contention that the salutary provisions of the Code are merely meant to provide a wife merely with food, clothing and lodging as if she is only a chattel and has to depend on the sweet will and mercy of the husband. ..." 43. In this context, I would like to advert to the vulnerability of married women in India who do not have an independent source of income or who do not have access to monetary resources in their households particularly for their personal expenses. In Indian society, it is an establ....
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....s. Such financial empowerment would place such a vulnerable wife in a more secure position in the family. Those Indian married men who are conscious of this aspect and who make available their financial resources for their spouse towards their personal expenses, apart from household expenditure, possibly by having a joint bank account or via an ATM card, must be acknowledged. 46. Another aspect of vulnerability of a married Indian woman is regarding her security of residence in her matrimonial home. In this context in the case of Prabha Tyagi vs. Kamlesh Devi, (2022) 8 SCC 90, this Court while considering Section 17 along with other provisions of the Domestic Violence Act, 2005 opined as under: "60. In our view, the question raised about a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed must be interpreted in a broad and expansive way, so as to encompass not only a subsisting domestic relationship in praesenti but also a past domestic relationship. Therefore, Parliament has intentionally used the expression "domestic relationship" to mean a relationship between two persons who not only live together in the ....