Daniel Latifi v. Union of India

Introduction

Under Islamic law maintenance or Nafaqa (Nafqa) arise out of three reasons - i) marriage ii) relations and iii) property. Maintenance in this context means food, raiment and lodging , though it generally refers to only food. A Muslim is required to maintain his other relations only if he has the means. But a Muslim husband is duty bound to provide maintenance to his wife, even if he is poor, if the marriage is sahih or lawful. But the wife never need to maintain the husband. The quantam of maintenance is decided as per the classical law, so under the Hanafi law position of both the spouses is taken into consideration, the Shafei law considers only the husband's position and the Isna Ashari and Ismaili laws takes into account the wife's needs and the local custom prevalent. The Hanafi school does not permit past maintenance(including divorced wives) but the other school of the Shia sect, the Shafei school allows past maintenance and in the words of the renowned Muslim law scholar Tahir Mahmood opines that this rational provision deserve to be applied to the Muslim women of all schools.

In India the Shariat Act, 1937 also recognizes the Muslim wife's right to maintenance. The section 488 of the old Code of Criminal Procedure1898 provides for criminal action by virtue of magistrate's orders for maintenance of wives which included Muslim wives too, as held in the case of Shahulmeedu v. Subaida Beevi. The Kerala High Court held that s. 488(3) of the Cr.P.C, applied to all Indian wives including Muslim wives.

The sections 125-128 of the new Code of Criminal Procedure 1973 retained the old provisions and now included the divorced wives too. A divorced wife now could ask for maintenance from the former husband if she was unable to maintain herself and the former husband even after having sufficient means neglects or refuses to maintain her.

In various Supreme Court judgments in between 1979 and 1985 like Bai Tahira v. Ali Hussain Fidaalli Chothia[1] and Fuzlunbi v. K. Khader Vali[2] held that Muslim women is entitled to maintenance under Section 125 and dealt with question of payment of mahr under Muslim personal law. The order of the magistrate stood cancelled under Section 127(3) only if the women's entitlement was paid fully under Personal law and this post divorce entitlement did not include the Maher which is considered as an attribute of marriage and not divorce or she remarries or had voluntarily given up her right of maintenance. The main controversy arising in this situation is regarding Muslim women's right to maintenance after the divorce. Prior to the Supreme Court judgement in Mohd Ahmed Khan v. Shah Bano Begum[3], it was generally held that the Muslim women did not have any right of maintenance once the period of iddat (period of separation) is over. But in this case the Supreme Court held that divorced Muslim women had the right to maintenance even after the period of iddat was over.

This judgment was followed by various repercussions in the Muslim community who felt their faith was under threat. The Muslim Personal Law Board opined that the Supreme Court was wrong in interpreting the holy Quran as per a judicial stand taken whereby it was held that the court would not interpret religious scriptures or holy books. The parliament to undo the effect of this judgement passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which provided that under section 3(1)(a) a divorced women is entitled to reasonable and fair provision and maintenance within the iddat period. The Act while nullifying the Shah Bano ratio, tried to restrict the divorced Muslim woman's right to maintenance up to the iddat period only. A classic example of how political considerations ate into the rights of a section of the people, the Constitutional validity of the Act was challenged on the ground of being violative of Article 14, 15 and 21. The basic question raised by right activists was the necessity of enacting an Act, completely segregating a section of the population, while a secular remedy was already available under Section 125 of the Code of Criminal Procedure. In the face of this burning controversy, the Supreme Court in the case of Daniel Latifi v. Union of India[4] approached a middle path and held that reasonable and fair provisions include provision for the future of the divorced wife (including maintenance) and it does not confine itself to the iddat period only. The Constitutional validity of the Act was also upheld.

IN THE SUPREME COURT OF INDIA

Decided On: 28.09.2001

Appellants: Danial Latifi and anr. vs. Respondent: Union of India

Hon'ble Judges:

Mr. G.B. Pattanaik, Mr. S. Rajendra Babu, Mr. D.P. Mohapatra, Mr. Doraiswamy Raju and Mr. Shivaraj V. Patil, JJ.

The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is in challenge before us in the following cases. The first case in this regard is the case of Mohd. Ahmed Khan v. Shah Bano Begum & Ors. The facts of this case 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 payment 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 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 state of her life - remarriage was an impossibility in that case. The husband, a successful Advocate with an approximate income of Rs. 5,000/- per month provided Rs. 200/- per month to the divorced wife, who had shared his life for half a century and mothered his five children and was in desperate need of money to survive.

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 the Supreme 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 so amount to cover maintenance during the iddat period and Section 127(3)(b) CrPC conferred statutory recognition on this principle. Several Muslim Organisation, 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 classes of arising 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 the Act, reads as follows:

"The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum & Ors. has held that although the Muslim Law limits the husband's 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 husband's liability ceases with the expiration of the period of iddat but if she is unable to maintain herself aft er the period of iddat, she is entitled to have recourse to Section 125 of the Code of Criminal Procedure.

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 husband's 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 husband's 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 vs Ali Hussain Fidaalli Chothia, and Fuzlunbi v. K.Khader Vali & Anr.

The petitioners raised the following contentions:

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 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 of 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 dispragement 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 to 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 Muslim, 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.

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 the Court had 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.[5], 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 religions 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 t he 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 not 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 referred various texts associated with the issue. On the basis of the information gathered from the various texts, it was contended that the view taken in Shah Bano's case on the expression 'mata' was not correct and the whole object of the enactment had 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 Section 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.

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 the Supreme Court in this case. As regard 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 (SIC) the fact that it operates appraisively, unequally and unreasonably one 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.

The Supreme Court in Shah Bano's case held that although Muslim personal law limits the husband's ability 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 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 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?

In interpreting the provisions where matrimonial relationship is involved, one has 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 woman. Our society is male dominated both economically and socially women are assigned, invariably, a dependant role, irrespective of the class of society to which she belongs. A woman on her marriage often, though highly educated, gives up her all other avocations entirely devotes herself to the welfare of the family, in particularly she shares with her husband, her emotions, sentiments, mind and body, 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 term 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 Muslim law intends to provide a different kind of responsibility by passing on the same to those unconnected with the matrimonial life (SIC) as the heirs who were likely to inherent 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 religions 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.

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 as 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 are 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 Section 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 to 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 (SIC) 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 woman's 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 of 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 filling an application before the Magistrate as provided in Section 3(3) but no where the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.

As on the date of 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 ration. 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[6], and Maneka Gandhi v. Union of India[7], 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 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 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 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 wold 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 statue 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 provision to be made and the maintenance to be paid. It was noticed that the maintenance is payable only upto the stage of iddat and this provision is applicable in case of a normal circumstances, while in case of a divorced Muslim woman who is unable to maintain herself, she is 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.[8]; Ali v. Safaira[9]; K. Kunhashed Hazi v. Amena[10]; K. Zunaideen v. Ameena Begum[11]; Karim Abdul Shaik v. Shenaz Karim Shaik[12] and Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh & Anr.[13], 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 made 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.[14], 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[15] and Abdul Rashid v. Sultana Begum[16]; Abdul Haq v. Yasima Talat[17]; Md. Marahim v. Raiza Begum[18]. 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 petitions challenging the validity of the provisions of the Act are dismissed.

The Daniel Latifi judgment remains the final case law in this regard. However the debate has still not been put to rest. In the light of the contentions and arguments raised, we must thus critically examine the judgment.

Critical Analysis

The most controversial question which has been politically significant in the recent past in the background of a secular constitution and the concept of welfare state is that whether or not a divorced Muslim woman after divorce post iddat period is entitled to maintenance by her husband or not. The iddat period is generally considered to be three menstrual courses if she is subject to menstruation, three lunar months if she is not subject to menstruation or if she is pregnant at the time of her divorce the period between her divorce and the delivery of child or the termination of pregnancy, whichever is earlier. Generally it is taken to be three months. A divorced Muslim woman is entitled to maintenance from her husband during the period of iddat, after that Muslim personal law though nowhere expressedly permits maintenance after divorce but it also does not prohibits, specifically or impliedly, it anywhere. In fact interpretation of the Holy Quran shows that the Islam as a religion calls for providing maintenance to a divorced woman on a reasonable scale, and this is a duty of every righteous god fearing person . But this interpretation was highly debated upon and was considered as out of purview of the court as the court itself had decided that they would not be interpreting the religious texts, when it was so discussed in the case of Mohd. Ahmed Khan v. Shah Bano Begum.

Smt. Kapila Hingorani and Smt. Indira Jaisingh, the Counsels standing on behalf of the petitioners contended that the expression 'wife' as included in the purview of the Section 125 of the Code of Criminal Procedure is 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. This provision is not a part of the civil law applicable selectively to parties belonging to a particular religion but a criminal remedy applicable to all on a secular basis, the basis there being, neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves. The very spirit of this provision was the moral edict of law and morality could never be clubbed with religion. It was also further contended that Section 125 of the Code of Criminal Procedure is a provision made in respect of women belonging to all religions to avoid vagrancy after marriage and exclusion of Muslim Women from the same results in discrimination between women and women and so violating Article 15 of the Constitution. There is a violation of not only equality before law but also equal protection of laws and thus violating Article 14 which in turn inherently infringes Article 21 as well as basic human values.

The five judge bench of the Supreme Court consisting of Mr. G.B. Pattanaik, Mr. S. Rajendra Babu, Mr. D.P. Mohapatra, Mr. Doraiswamy Raju and Mr. Shivaraj V. Patil upheld the Constitutional validity of the Act. The forward step taken by the same Court in the Shah Bano in the face of religious fanaticism was undone as the Court in the rationale said that, “Legislature does not intend to enact unconstitutional laws”. While it accepts social reality of a male dominated society, it fails to take recognition of the fact that the Act is inherently discriminatory. This can be very well proved by the fact that it brings within its purview only ‘divorced woman' who has been 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 excludes from its purview a Muslim woman whose marriage is solemnized either under the Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969 or the Special Marriage Act, 1954. The Act does not apply to the deserted and separated Muslim wives. Section 4 of the Act makes the relatives of the Divorced woman or the state wakf board responsible for the maintenance of the Divorced woman. But reality is that it is quite improbable that she will get sustenance from the parties who were not only strangers to the marital relationship which led to divorce. Also, wakf boards would usually not have the means to support such destitute women since they are themselves perennially starved of funds and the potential legatees of a destitute woman would either be too young or too old so as to be able to extend requisite support. Furthermore, the Court fails to answer the necessity of an Act, segregating Muslim women completely when a secular remedy is already available under the Section 125 of the Code of Criminal Procedure. Hindu women have their right to maintenance recognized under the Hindu Adoptions and Maintenance Act, 1956 but that no way bars her from claiming maintenance under Section 125 of the Code of Criminal Procedure.

So why, this discrimination, the Court fails answer that. The justification of the law being non discriminatory based on a reasonable classification and so not violative of Article 14 of the Constitution of India (as given in Danial Latifi judgement) does not hold good because a law for maintenance to divorced women was already in force and available to every women of India, irrespective of their caste, creed, religion. The proposition put forward that the Act in spirit tries to respect the provisions in the Personal Law does not hold good as it being a codified Law, has to pass the acid test of the Constitution, which it miserably fails. Another, fact to be noted is that Section 5 of the Act gave option to the parties to the divorce, the husband and the wife, to decide mutually to be governed either by Sections 125-128 of the Cr. PC or the provisions of the Act. But the main criticism leveled against this section was that which Muslim husband would like to go through the rigours of the Cr.PC provisions when he can be governed by a much easier law. The Section 7 of the Act also provided that the pending applications under the Cr.PC were to be dealt within the purview of this Act. But Gujarat High Court has held in the case of Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai that a divorced Muslim woman can directly move to the Court under the Cr PC provisions.

However, in the middle path approach undertaken by the Supreme Court becomes evident as it reiterates the stand of the Gujarat, Kerala and Bombay High Courts earlier in this regard. The poorly drafted provisions of the Act, especially section 3, provided the Court with ample scope of interpretation. The bench laid special emphasis on the two words- ‘maintenance' and ‘provision' and distinguished between the precision of use of the two words as provision to be ‘made' and maintenance to be ‘paid'. The time frame or the iddat period mentioned was held to be the time limit within which both maintenance for the iddat period and a ‘reasonable and fair provision' for the future in the form of a lump sum was to be paid to the divorced wife to avoid future vagrancy. The interpretation given to the Act by the Courts thus codified the Shah Bano ratio, while it tried to nullify it. The Supreme Court through this judgement put to rest the controversy relating to the interpretation of Holy Quran raised during the Shah Bano case and did not delve into that, but concluded that the word “mata” as interpreted in Muslim personal laws would support the Court's view of the term ‘provision' as one time lump sum payment.

Conclusion and Present Scenario

Before the Danial Latifi judgement, the expression “provision and maintenance” created confusion as the High Court of Kerala in Ali v. Sufaira the Bombay High Court in the case of Abdul Rahman Shaikh v. Shehnaz Karim Shaikh[19] and the Gujarat High Court in the case of Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai that the expression reasonable and fair provision meant arrangement for a lump sum amount for the future provision of the wife within the iddat period other than the iddat period maintenance. But contrary opinions were given by the judgements of the Andhra Pradesh High Court in the case of Usman Bahmani v. Fathimunnisa[20] and the Calcutta High Court in the case of Abdul Rashid v. Sultana Begum and it was held that both expressions provision and maintenance meant the same, and it covered only maintenance for the iddat period only. After this judgement the judiciary has held in the cases like in the cases of Bilkis Begum v. Majid Ali Gazi[21] it was held that claim of maintenance of the divorced wife cannot be proceeded under Section 125 of the Cr PC after the enactment of the 1986 Act.

The controversy still remains. The interpretation provided by the judiciary in the Danial Latifi case fails to satisfy the minds of the reasonable people, as there are glaring defectes on the face of it. But we should also keep in mind the social perspective. On one hand where it upholds the Constitutional validity of the Act, it also interprets the provisions of the Act in favour of the divorced Muslim women. The Court could envisage that the country at such a juncture of Economic and Social growth, could not bear the burden of aftermath of another Shah Bano. But keeping in mind the changing times and the constantly evolving meaning of Article 21of the Constitution, which has been held to include the ‘right to live with dignity' under the case of Olga Tellis v. Bombay Municipal Corporation and Maneka Gandhi v. Union of India, it is a duty of the society to make sure that the divorced Muslim wife have the provision to maintain herself with dignity and is not led to destitution and vagrancy. The Personal law may connote a different thing but keeping the changing society in mind, it should be open to interpretation only for positive changes. That only can help us achieve the objectives of Social Justice laid down both expressedly and implicitly in our Constitution.

References

1. Prof. G.C.V. Subba Rao - Family Law in India, 9th Edn. (2007)

2. M. Krishnan Nair - Family Law I

3. Mulla on Muslim Law, 8th Edn.

4. www.wikipedia.com

5. www.google.com

6. www.manupatra.com

7. www.judis.nic.in

[1] (1979) 2 SCC 316

[2] 1979 Cri. LJ 151

[3] 1985 Cri. LJ 875

[4] AIR 2001 SC 3958

[5] 24 IA 196

[6] AIR 1986 SC 180

[7] [1978] 2 SCR 621

[8] AIR 1988 Guj. 141

[9] (1988) 3 Crimes 147

[10] (1997) IIMLJ 464

[11] (1997) IIMLJ 464

[12] 2000(5) BomCR 758

[13] 2000(1) BomCR 696

[14] II (1998) DMC 85 (FB)

[15] AIR 1990 AP 225

[16] 1992 Cr.L.J. 76

[17] 1998 Cr.L.J. 3433

[18] 1 1993 DMC 60

[19] 2000 (4) All MR 258

[20] AIR 1990 AP 225 (FB)

[21] 2002(2) WLC(SC) 104