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CASE NO.: Appeal (crl.)  795 of 2001

PETITIONER: Iqbal Bano

RESPONDENT: State of U.P. and Anr

DATE OF JUDGMENT: 05/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      In the present appeal the appellant questions correctness  of the order passed by a learned Single Judge of the Allahabad  High Court dismissing her revision petition (Criminal Revision  No.1161 of 1995). The appellant had questioned correctness of  the order passed by learned Additional Sessions Judge,  Aligarh, setting aside the order dated 7.7.1994 passed by the  learned Judicial Magistrate, Aligarh.  By the said order dated  7.7.1994 learned Judicial Magistrate had accepted the prayer  for grant of maintenance filed by the appellant in terms of  Section 125 of the Code of Criminal Procedure, 1973 (in short  ’Cr.P.C.’).  She directed respondent no.2 to pay a monthly  maintenance of Rs.450/- to the appellant.         2.      Background facts in a nutshell are as follows:            The appellant had married respondent no.2 in the year  1959 and a child was born to them in 1966. Unfortunately the  son died in the year 1991. Respondent no.2 who was living  separately from the appellant stopped coming to the house of  the appellant where she was staying and also did not pay  anything for her subsistence. Therefore, an application under  Section 125 Cr.P.C. was filed on 21.2.1992.  Before that she  had sent notice demanding payment of maintenance.  Respondent no.2 replied to the notice and denied his liability  to pay maintenance. As noted above, on 21.2.1992 application  was filed claiming maintenance of Rs.500/- p.m.  It was stated  that that the income of the respondent no.2 was Rs.4,000/-  per month. On 28.5.1992 written statement was filed wherein  it was stated that long back he had divorced his wife by  utterance the word "Talaq"  "Talaq" "Talaq".  It was further  stated that there was severance of marital ties between them  for years as the divorce was over by the utterance of the word  "Talaq" thrice and he had also paid Mehr and the Iddat period  was over the claim was not acceptable. He also stated he had  contacted the second marriage.               3.      The learned Magistrate held that there was no material to  substantiate the plea of divorce and accordingly maintenance  was granted. Order was challenged by filing a revision before  the learned Additional Sessions Judge. Stand of the  respondent was that after enactment of the Muslim Woman  (Protection of Rights on Divorce) Act, 1986 (in short the ’Act’),  petition under Section 125 Cr.P.C. was not maintainable. It  was also stated that not only in the reply to the notice, there  was mention about the utterance of the word "Talaq"  "Talaq"  

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"Talaq", there was mention in the written statement also,  amounting to divorce. Learned Additional District and  Sessions Judge accepted the plea.  He held that after the  enactment of the Act, petition by any married muslim woman  under Section 125 Cr.P.C. is not maintainable. Such woman  can claim maintenance under the Act and not under the  Cr.P.C.  It was further held that mention was made in the  written statement about the divorce purportedly 30 years back  and the mentioning about this fact in law amounted to  divorce.  Accordingly, order of the learned Magistrate was set  aside. High Court dismissed the writ petition summarily  observed as follows:

"Heard learned counsel for the  revisionist. The learned Additional District and  Sessions Judge has committed no illegality in  modifying the order passed by the Magistrate  in declining the maintenance after the date of  divorce. The revision has got no force.  It is  dismissed accordingly."                         4.        Learned counsel for the appellant submitted that the  approach of the First Revisional Court was clearly erroneous.  There is no bar on Muslim woman filing petition in terms of  Section 125 Cr.P.C.  The Act only applies to divorced woman  and not the Muslim married women who are not divorced.  Further, mere statement in the written statement about some  divorce long back does not meet the requirement of law. The  finding of the First Revisional Court about payment of Mehr  has no relevance.          

5.       Mr. S.W.A. Qadri, learned counsel for the State of Uttar  Pradesh brought to our notice several decision of this Court to  support the stand of the appellant. Learned counsel for the  respondent no.2 on the other hand supported the order of the  High Court.  It was submitted that no interference is called for.  The dismissal of the revision petition by the High Court in the  manner done is clearly unsustainable. The absence of these  reasons has rendered the High Court’s order unsustainable.         

6.      The view expressed by the First Revisional Court that no  Muslim woman can maintain petition under Section 125  Cr.P.C. is clearly unsustainable. The Act only applies to  divorced women and not to a woman who is not divorced.  The  conclusions that in view of the statement in the written  statement about alleged divorce 30 years by utterance of the  words  "Talaq"  "Talaq"  "Talaq" three times is sufficient in law  is not sustainable. This Court in Shamim Ara v. State of U.P.  and Anr. (2002 (7) SCC 518) observed:

"16. We are also of the opinion that the talaq  to be effective has to be pronounced. The term  "pronounce" means to proclaim, to utter  formally, to utter rhetorically, to declare to  utter to articulate (see Chambers 20th Century  Dictionary, New Edition, p. 1030) There is no  proof of talaq having taken place on 11.7.1987.  What the High Court has upheld as talaq is  the plea taken in the written statement and its  communication to the wife by delivering a copy  of the written statement on 5.12.1990. We are  very clear in our mind that a mere plea taken  in the written statement of a divorce having

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been pronounced sometime in the past cannot  by itself be treated as effectuating talaq on the  date of delivery of the copy of the written  statement to the wife. Respondent 2 ought to  have adduced evidence and proved the  pronouncement of talaq on 11.7.1987 and if he  failed in proving the plea raised in the written  statement, the plea ought to have been treated  as failed. We do not agree with the view  propounded in the decided cases referred to by  Mulla and Dr Tahir Mahmood in their  respective commentaries, wherein a mere plea  of previous talaq taken in the written  statement, though unsubstantiated, has been  accepted as proof of talaq bringing to an end  the marital relationship with effect from the  date of filing of the written statement. A plea of  previous divorce taken in the written  statement cannot at all be treated as  pronouncement of talaq by the husband on the  wife on the date of filing of the written  statement in the Court followed by delivery of a  copy thereof to the wife. So also the affidavit  dated 31.8.1988, filed in some previous  judicial proceedings not inter partes,  containing a self-serving statement of  Respondent 2, could not have been read in  evidence as relevant and of any value."

7.      The conclusions about the Mehr having been paid and  the Iddat period is over has no relevance.  A Constitution  Bench of this Court in Danial Latifi and Anr. V. Union of India  (2001 (7) SCC 746) observed as follows:

"28. 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 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

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unless she gets married for a second time.

29. The important section in the Act is Section  3 which provides that a divorced woman is  entitled to obtain from her former husband  "maintenance", "provision" and "mahr", and to  recover from his possession her wedding  presents and dowry and authorizes the  Magistrate to order payment or restoration of  these sums or properties. The crux of the  matter is that the divorced woman shall be  entitled to a reasonable and fair provision and  maintenance to be made and paid to her  within the iddat period by her former husband.  The wordings of Section 3 of the Act appear to  indicate that the husband has two separate  and distinct obligations: (1) to make a  "reasonable and fair provision" for his divorced  wife; and (2) to provide "maintenance" for her.  The emphasis of this section is not on the  nature or duration of any such "provision" or  "maintenance", but on the time by which an  arrangement for payment of provision and  maintenance should be concluded, namely.  "within the iddat period". If the provisions are  so read, the Act would exclude from liability for  post-iddat period maintenance to a man who  has already discharged his obligations of both  "reasonable and fair provision" and  "maintenance" by paying these amounts in a  lump sum to his wife, in addition to having  paid his wife’s mahr and restored her dowry as  per Sections 3(1)(c) and 3(l)(d) of the Act.  Precisely, the point that arose for  consideration in Shah Bano case1 was that the  husband had not made a "reasonable and fair  provision" for his divorced wife even if he had  paid the amount agreed as mahr half a  century earlier and provided iddat  maintenance and he was, therefore, ordered to  pay a specified sum monthly to her under  Section 125 CrPC. This position was available  to Parliament on the date it enacted the law  but even so, the provisions enacted under the  Act are "a reasonable and fair provision and  maintenance to be made and paid" as provided  under Section 3(l)(a) of the Act and these  expressions cover different things, firstly, by  the use of two different verbs - "to be made  and paid to her within the iddat period" it is  clear that a fair and reasonable provision is to  be made while maintenance is to be paid;  secondly, Section 4 of the Act, which  empowers the Magistrate to issue an order for  payment of maintenance to the divorced  woman against various of her relatives,  contains no reference to "provision".  Obviously, the right to have "a fair and  reasonable provision" in her favour is a right  enforceable only against the woman’s former  husband, and in addition to what he is obliged  to pay as "maintenance"; thirdly, the words of  The Holy Quran, as translated by Yusuf Ali of  "mata" as "maintenance" though may be  incorrect and that other translations employed

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the word "provision", this Court in Shah Bano  case dismissed this aspect by holding that it is  a distinction without a difference. Indeed,  whether "mata" was rendered "maintenance"  or "provision", there could be no pretence that  the husband in Shah Bano case had provided  anything at all by way of "mata" to his divorced  wife. The contention put forth on behalf of the  other side is that a divorced Muslim woman  who is entitled to "mata" is only a single or  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 maintenance for  the iddat period, also enables "a reasonable  and fair provision" and "a reasonable and fair  provision" as provided under Section 3(3) of  the Act would be with reference to the needs of  the divorced woman, the means of the  husband, and the standard of life the woman  enjoyed during the marriage and there is no  reason why such provision could not take the  form of the regular payment of alimony to the  divorced woman, though it may look ironical  that the enactment intended to reverse the  decision in Shah Bano case actually codifies  the very rationale contained therein.  

36 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 (i) (a) of  the Act. (2) Liability of the Muslim husband to his  divorced wife arising under Section 3 (i) (a) of  the Act to pay maintenance is not confined to  the iddat period. (3) A divorced Muslim woman who is 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  relative who are liable to maintain her in  proportion to the properties which they inherit  on her death according to Muslim law for such  divorced woman including her children and  parents. If any of her relative being unable to  pay maintenance, the Magistrate may direct  the State Waqf Board established under the  Act to pay maintenance. (4) The provisions of the Act do not offend  Article 14, 15 and 21 of the Indian  Constitution."

8.      The position was followed in Sabra Shamim v. Maqsood  Ansari (2004 (9) SCC 616).                                                                                               

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9.      Proceedings under Section 125 Cr.P.C. are civil in nature.  Even if the Court notices that there was a divorced woman in  the case in question, it was open to him to treat it as a petition  under the Act considering the beneficial nature of the  legislation. Proceedings under Section 125 Cr.P.C. and claims  made under the Act are tried by the same Court. In Vijay  Kumar Prasad v. State of Bihar and Ors. (2004 (5) SCC 196), it  was held that proceedings under Section 125 Cr.P.C. are civil  in nature.  It was noted as follows:

"14.    The basic distinction between Section  488 of the old Code and Section 126 of the  Code is that Section 126 has essentially  enlarged the venue of proceedings for  maintenance so as to move the place where the  wife may be residing on the date of application.   The change was thought necessary because of  certain observations by the Law Commission,  taking note of the fact that often deserted  wives are compelled to live with their relatives  far away from the place where the husband  and wife last resided together.  As noted by  this Court in several cases, proceedings under  Section 125 of the Code are of civil nature.   Unlike clauses (b) and (c) of Section 126(1) an  application by the father or the mother  claiming maintenance has to be filed where the  person from whom maintenance is claimed  lives."        

10.     Accordingly, we set aside the order impugned of the High  Court and remit the matter for fresh consideration.   

11.     The High Court while deciding the matter shall keep in  view the principles indicated above. Since the matter is  pending since long, the High Court shall dispose of the matter  within six months from the date of receipt of this order to  avoid unnecessary delay.  We direct the parties to appear  before the High Court on 23rd July 2007.  We request the Chief  Justice of the High Court to list the matter before the  appropriate Bench.                                                               The appeal is disposed of accordingly.