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PETITIONER: THE SECRETARY, TAMIL NADU WAKF BOARD AND ANOTHER

       Vs.

RESPONDENT: SYED FATIMA NACHI

DATE OF JUDGMENT:       09/07/1996

BENCH: M.M. PUNCHHI, SUJATA V. MANOHAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Punchhi, J.      Special leave granted.      The Secretary of the Tamil Nadu Wakf Board, Madras, and the Superintendent  of Wakfs.   Tirunelveli,  the Appellants herein, are  aggrieved against an order of the High Court of Madras, dated  16.3.1994 in  Crl. O.P. No. 3557/93 declining to interfere and quash a proceeding in M.C. No.11/92 pending on the  file  of  the  Court  of  the  Judicial  Magistrate, Tiruchendur, in  which the  respondent - Syed Fatima Nachi - is claiming maintenance as the applicant.      The respondent  is a Muslim divorced wife.  She filed a petition against  the appellants  under Section  4(2) of the Muslim Women  (Protection of  Rights on  Divorce) Act,  1986 (for short ’the Act’) seeking maintenance at the rate of Rs. 750/- per  mensem.   The petition  was founded  on the facts that she  was married to one Syed Ahmed Moulana on 10.6.1980 in accordance  with the  tenets of Muslim Law and out of the wedlock, she  had procreated  female twins on 6.4.1981.  Her husband divorced her on 12.6.1986 and since then she has not remarried.   Claiming that  the respondent  had no income or means to  maintain herself,  as well  as  her  minor  female children, none  of them  owning any property, she was, thus, unable to  maintain herself and required intervention of the Court in  providing her a suitable sum for maintenance.  She claimed that  she had  earlier been leading a good life as a married woman  but after divorce, was in dire straits and in suffering.   She claimed  that under  the Mohammedan  Law, a Muslim woman,  in such  circumstances, can  get  maintenance from her  prospective heirs.   According  to her,  a host of relatives  as  given  in  the  Act  as  well  as  under  the Mohammedan Law are responsible to provide maintenance to her and if  those are  unable to do so, the claim of maintenance must be  met by the Wakf Board.  it was also maintained that neither her  prospective heirs  not her  parents were  in  a position to  provide maintenance to her and thus there lay a bounden duty  on the  Wakf Board to that effect; hence claim of Rs. 750/- per mensem.      Instead of  facing the petition on merit to its logical end, the  appellants, who  were the only respondents in that

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petition,  moved  the  High  Court  of  Madras  praying  for quashing of  proceedings in  exercise of  its diverse powers under the  Code of  Criminal Procedure,  but the  High Court declined to  do so.   They  have, in  turn, approached  this Court for  the same  purpose, basing their claim on the same grounds as before the High Court.      The Parliament  enacted the act to undo the effect of a Constitution Bench  decision of  this Court  in Mohd.  Ahmad Khan v.  Shah bano  Begam (1985  2 SCC 556) because the said decision was  strongly opposed  to by  a sizeable section of the Muslim  Community.   The Act  as Preamble suggests, came to protect the rights of Muslim women who have been divorced by, or  obtained divorce from, their husbands and to provide for matters  connected therewith or incidental thereto.  The brief text  of the  Act embodies the all important Section 4 whereunder orders  can be  made for  payment of maintenance. The said provision is reproduced hereunder:      "4.   Order    for    payment    of      maintenance.-      (1)    Notwithstanding     anything      contained    in    the    foregoing      provisions of  this Act  or in  any      other law  for the  time  being  in      force,  where   a   Magistrate   is      satisfied that a divorced woman has      not re-married  and is  not able to      maintain herself  after  the  iddat      period,  he   may  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 relatives as      may appear  to  the  Magistrate  to

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    have the  means of  paying the same      in   such    proportions   as   the      Magistrate may think fit to order.      (2)  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 have 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 proviso to sub-section  (1) the      Magistrate may,  by  order,  direct      the State  Wakf  Board  established      under Section  9 of  the Wakf  Act,      1954 (29  of 1954),  or  under  any      other law  for the  time  being  in      force in  a State,  functioning  in      the  area   in  which   the   woman      resides, to pay such maintenance as      determined by him under sub-section      (1) or,  as the case may be, to pay      the shares of such of the relatives      who are  unable  to  pay,  at  such      periods as  he may  specify in  his      order." (emphasis supplied)      A bare  reading of  the provision shows that a divorced woman is entitled to claim a reasonable and fair maintenance from such  of her  relatives as would be entitled to inherit her property on her death, according to Muslim Law, provided she has  not re-married and is not able to maintain herself. Such  maintenance,   however,  shall   be  pauable  by  such relatives in  proportion  to  the  share  which  they  would inherit  in   her  property  and  at  such  periods  as  the Magistrate may  specify in his order.  If the divorced woman has children,  the  first  proviso  to  sub-section  (1)  of Section 4  mandates  that  the  liability  to  maintain  her firstly lies  on them.   In  the event of her children being unable to  maintain her, the liability shifts to her parents under the  same proviso.   The  liability of  the  relatives other  than   the  children   and  the   parents,   follows, sequentially, subject  to the  conditions as embodied in the proviso.   The liability of the relatives does not depend on the contingency  that the  relatives does  not depend on the contingency that  the divorced woman has property which they would inherit.   It looks incongruous though that a divorced woman having  property  would  yet  be  unable  to  maintain herself.   Seemingly, the  phraseology has  been employed to ascertain firstly  such of  those relatives  who could  have inherited her  property, fictionally  on the  basis that she could be having property, and secondly as if she had died on the date  when the  need  for  identification  arose.    The speculative plea  of any relative that her or she may not be available to  be an heir on the date when the divorced woman would  actually  die,  would  neither  be  here  nor  there. Climbing down,  if the  divorced woman  has no  relatives as mentioned in  sub-section (1)  or  relatives  who  have  not enough means  to pay  her maintenance,  the State Wakf Board functioning in  the area,  in which  the divorced  woman  in resident,  has  been  foisted  with  the  liability  to  pay suitable maintenance  to  her,  on  the  Magistrate’s  order

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and/or direction.      We have  taken care  to underline and emphasise certain words in  the text  of Section  4 (supra).   As  is evident, there are  more than  one orders  which are  contemplated or conceived of,  to be  passed by the Magistrate in the morass of fluctuations,  depending upon  the existence of children, parents and  the heirs  and their capability or inability of making payment  of maintenance  and as  to its  proportions. The State  Wakf Board  comes at  the bottom  of the  list to shoulder the  onus of payment of maintenance.  The scheme of the provision  is, in  a manner,  unique  in  character,  in grading down  the responsibility  of payment  of maintenance from one  to the  other and  finally coming  to rest  on the State Wakf  Board, which  is the  last in  line to  bear the burden.      The appellants would have us hold that sub-sections (1) and (2) of Section 4 are mutually exclusive and the separate language employed  therein, to  cover  different  situation, breeds further  exclusivity, as  it  is  contemplated,  that orders  after   orders  might  have  to  be  passed  by  the Magistrate  in   pursuit  to   grant   the   divorced   wife maintenance. It  has been vehemently argued on behalf of the appellants that  unless sub-section  (1) of  Section 4  gets exhausted by proper orders, sub-section (2) of Section 4 (in which the  liability of the State Wakf Board is to be found) cannot be  invoked. In  other words, it is contended that in the present  set of  proceedings, the  appellants cannot  be made to  face or litigate about before the Magistrate trying the matter.   We  regretfully do  not agree  to such line of thinking.   The appellants  would  have  us  hold  that  the provision concedes  multiplicity of  proceedings, broadly in the following  manner :  (1) the  proceedings shall  in  the first instance  be initiated  against the  children  of  the divorced woman;  (2) if  the  children  are  unable  to  pay maintenance then  the second  proceedings shall be initiated against the  parents of  the  divorced  woman;  (3)  if  the parents or  any one  of them is unable to pay the respective share of  maintenance  then  fresh  proceedings  be  started against the  relatives; (4) in case the relatives are unable to meet  the claim  of  maintenance,  fresh  proceedings  be initiated against  "other relatives" ; and (5) finally, when no relatives  or any  one of  them unable to pay maintenance then another  set of  proceedings be  initiated against  the State  Wakf   Board;  all   backed  by  the  orders  of  the Magistrate.   And since  the State Wakf Board comes last, it is maintained  that its  turn instantly  has not yet arrived because no  proceedings  have  been  initiated  against  the relatives.      Going by the arguments and the reasoning adopted by the appellants, it  would,  in  our  way  of  thinking,  have  a devastating effect  on the  purpose for  which the provision was enacted.   The  Drafter’s pattern  in  sub-dividing  the provision into  sub-section (1) and (2) evidently was not to cause  any  split  in  the  legislative  theme  because  the provision, as it appears to us, is an integrated whole.  One step is  dependent on  another. It is futile for to divorced woman seeking  succour to  run after  relatives, be  it  her children, parents, relatives or other relatives, who are not possessed of  means to offer her maintenance and in fighting litigations in  succession against  them, dragging  them  to courts  of   law  in   order  to   obtain  negative   orders justificatory of the last resort of moving against the State Wakf Board.   In  our considered  view, she would instead be entitled to  plead and  prove such  relevant  facts  in  one proceeding,  as   to  the   inability   of   her   relations

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aforementioned, maintaining  her  and  directing  her  claim against the  State Wakf Board in the first instance.  It is, however, open  for the  State Wakf  Board to controvert that the relations mentioned in the provisions, or some, of them, have the  means to pay maintenance to her. In that event the Magistrate would  perfectly be  justified  in  adding  those relatives as parties to the litigation in order to determine as towards  whom shall  he direct  his orders for payment of maintenance.   In one  and the  same proceeding, one or more orders conceivably  can be  passed in favour of the divorced woman subject of course to her not re-marrying and remaining unable to maintain herself.  We hold accordingly.      We are  thus satisfied that the High Court committed no wrong in  declining to interfere at the initial stage of the proceedings at  the behest  of the  appellants.  They are at liberty to  take before  the Magistrate  hearing the matter, such defence  as are open to them on the merit of the matter and within  the framework of the legislative scheme embodied in Section 4 of the Act.      Before parting with the judgment, it need be taken into account that notice to the respondent was issued, subject to the appellant  depositing a  sum of  Rs.  10,000/-  in  this Court, irrespective  of the  result of  this case,  for  the benefit of  the respondent,  to obtain  it  and  defray  the litigation expenses.   The  respondent,  in  turn,  did  not engage a  counsel but  despatched a  letter to  this  Court, praying that  some counsel  be  arranged  by  the  Court  to represent her  and that  she be remitted the said sum of Rs. 10,000/-.   In such  a situation,  we had appointed Mr. Uday Umesh Lalit,  learned counsel  as an amicus curiae to assist us in the matter on her behalf.  We had the advantage of his able assistance  in appreciating  this matter.  In our view, he deserves  a remuneration of Rs. 3,000/-.  The Registry is directed accordingly,  to make  payment to  Mr. Lalit out of the sum  deposited.   The balance  sum  of  Rs.  7,000/-  be remitted to  the respondent  as succour,  to tide  over  her financial difficulties,  which is  ordered not  to be  taken into account  or  reckoned  in  determining  any  claim  for maintenance.      For the afore reasons, this appeal is dismissed