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Muslim Law : Muslim Women (Protection of Rights on Divorce) Act, 1986: Constitution validity-Act excluded Muslim divorced woman from the provisions of Section 125 Cr.P.C.-Further, under S.3 Muslim divorced woman was entitled to reasonable and fair provision and maintenance within the period of iddat by her former husband-Held: The Act is constitutionally valid-Reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period-Liability of Muslim husband to pay maintenance to his divorced wife is not confined to iddat period-A divorced Muslim woman, who has not remarried, may proceed against her relatives for her maintenance-If relatives unable to pay maintenance State Wakf Board to pay such maintenance-The Act does not offend Arts. 14, 15 and 21-Constitution of India, 1950 Arts. 14, 15 and 21-Code of Criminal Procedure, 1973, S.I25. Interpretation of Statutes: Rule of construction-Provisions of a Statute-Possibility of two constructions-Preference of-Held: That construction, if permissible, which makes the Statute effective and operative has to be preferred-Whereas that construction which renders the Statute ultra vires or unconstitutional has to be rejected. Words & Phrases : “Divorce woman”: and “iddat period”-Meaning of-In the context of S.2(a) of the Muslim Woman (Protection of Rights on Divorce) Act, 1986. “Maintenance:, “provision” and “mahr”-Meaning of-In the context of S.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Petitioners filed a writ petition before this Court challenging the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986. On behalf of the petitioners it was contended that the Act was un-Islamic, unconstitutional and it undermined the secular character which was the basic feature of the Constitution; that there was no rhyme or reason to deprive the Muslim women from the applicability of Section 125 of the Code of Criminal Procedure, 1973 and consequently the Act must be held to be discriminatory and violative of Articles 14 and 21 of the Constitution. On behalf of the respondents it was contended that a reasonable and fair provision and maintenance for the divorced Muslim woman had been provided under Section 3 of the Act; that personal law was a legitimate basis for discrimination; that the Act was good enough to take care of the vagrancy of Muslim divorced woman; that the interpretation of the Act should be in consonance with the Muslim Personal Law; that the social ethos of the Muslims should be borne in mind while interpreting the Act; that the Act resolved all issues and, therefore, the Act was not invalid or unconstitutional. =Dismissing the petition, the Court HELD : 1. In interpreting the provisions where matrimonial relationship is involved, one has to consider the social conditions prevalent in the Indian society. In Indian society, whether one belongs to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Indian society is male dominated both economically and socially and women are assigned, invariably, a dependent role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body , and her investment in the marriage is her entire life – a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner one 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 livehood and such a relief which partakes basic human rights to secure gender and social justice is universally recognised by persons belonging to all religions and it is difficult to perceive that Muslim law intends to provide a different kind of responsibility by passing on the same to those unconnected with the matrimonial life such as the heirs who were likely to inherit the property from her or the Wakf Boards. Such an approach appears to be a kind of distortion of the social facts. Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints. Bearing this aspect in mind, one has to interpret the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 in question. [435-B-G] 2. The provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provisions for maintenance. 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 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 do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3); but nowhere the Parliament has provided that reasonable and fair 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. [439- A-D] 3.1. The provisions of the Act depriving the divorced Muslim woman of a right to maintenance from her husband 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 of the Code of Criminal Procedure, 1973. Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code 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, a divorced Muslim woman has obviously been unreasonably discriminated against and has got out of the protection of the provisions of the general law as indicated under the Code which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any other community. The provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and discrimination on the ground of religion as the act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. [442-E- H] 3.2. It is well settled that on a rule of construction a given statute will become `ultra vires or `unconstitutional’ and, therefore, void, whereas on another rule of 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. The latter interpretation should be accepted and, therefore, this interpretation 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. [443-A-B] 4. While upholding the validity of the Act, the conclusions are summed up as follows : (a) 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. (b) Liability of Muslim husband to his divorced wife arising under Section 3(l)(a) of the Act to pay maintenance is not confined to iddat period. [444-G-H] (c) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. (d) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India. [445-A-B] Mohd Ahmed Khan v. Shah Bano Begum, [1985] 2 SCC 556; Bai Tahira v. ALi Hussain Fidaalli Chothia, [1979] 2 SCC 316; Fuzlunbi v. K. Khader Vali, [1980] 4 SCC 125; Aga Mahomed Jaffer Bindaneem v. Koulsom Bee Bee, 241A 196; Olga Tellis v. Bombay Municipal Corporation, [1985] 3 SCC 545 and Maneka Gandhi v. Union of India, [1978] 1 SCC 248, referred to. Arab Ahmadhia Abdulla v. Arab Bail Mohmuna Saiyadhbhai, AIR (1988) (Guj) 141; Ali v. Sufaira, [1988] 3 Crimes 147, K. Kunhashed Hazi v. Amma, (1995) Crl. L.J. 337; K. Zunaideen v. Ameena Begum, (1998) II DMC 468, Karim Abdul Shaik v. Shenaz, Karim Shaik, (2000) Crl. L.J. 3560, Jaitunbi Mubarak Shaikh v. Mubarak Fakruddhi Shaikh, (1999) M.L.J. 694 and Kaka v. Hassan Bano, II (1998) DMC 85 (Pun) (FB), approved. Umar Khan Bahamami v. Fathimnurisa, (1990) Cr. L.J. 1364; Abdul Rashid v. Sultana Begum, [1992] Cr.L.J. 76; Abdul Haq v. Yasima Talat, (1998) Cr. L.J. 3433 and Md. Marahim v. Raiza Begum, (1993) 1 DMC 60, overruled. CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 868 of 1986. Under Article 32 of the Constitution of India. WITH W.P.(C) Nos. 996, 1001,1055, 1062, 1236, 1259, 1281/86, TC. (C) No. 22/87, 86, 68/88, T.P. (C) No. 276-77/87, Crl. A. No. 702/90, SLP (Crl.) Nos. 655/88, 596-97/92, W.P. (C) No. 12273/84 SLP (Crl.) No. 2513/94, Crl. A. Nos. 508, 843/95, 102-103/89, 292/90, SLP(Crl.) Nos. 2165/96, 3786, 2462/99. =2001 AIR 3958, 2001( 3 )Suppl.SCR 419, 2001( 7 )SCC 740, 2001( 6 )SCALE537 , 2001( 8 )JT 218

CASE NO.:
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Writ Petition (civil) 868 of 1986

PETITIONER:
DANIAL LATIFI & ANR.

RESPONDENT:
UNION OF INDIA

DATE OF JUDGMENT: 28/09/2001

BENCH:
G.B.PATTANAIK & S.RAJENDRA BABU & D.P.MOHAPATRA & DORAISWAMY RAJU & S.V.PATIL

JUDGMENT:
JUDGMENT

With
 [WP(C) Nos. 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86,
 1281/86, T.C. (C) 22/87, 86/88, 68/88, T.P. (C) No. 276-77/87, Crl.
 A. No. 702/90, SLP (Crl.) Nos. 655/88, 596-97/92, WP(C)No.
 12273/84,
 SLP(Crl.) No. 2513/94, Crl. A. Nos. 508/95, 843/95,
 102-103/89, 292/90, SLP (Crl.) Nos. 2165/96, 3786/99, 2462/99]

DELIVERED BY:
S.RAJENDRA BABU,J.

RAJENDRA BABU, J.:

 The constitutional validity of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 [hereinafter referred to as the Act] is in
challenge before us in these cases.

 The facts in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors.
(1985) 2 SCC 556, are as follows.

The husband appealed against the judgment of the Madhya
Pradesh High Court directing him to pay to his divorced wife Rs.179/-
per month, enhancing the paltry sum of Rs.25 per month originally
granted by the Magistrate. The parties had been married for 43 years
before the ill and elderly wife had been thrown out of her husbands
residence. For about two years the husband paid maintenance to his
wife at the rate of Rs.200/- per month. When these payments ceased
she petitioned under Section 125 CrPC. The husband immediately
dissolved the marriage by pronouncing a triple talaq. He paid Rs.3000/-
as deferred mahr and a further sum to cover arrears of maintenance and
maintenance for the iddat period and he sought thereafter to have the
petition dismissed on the ground that she had received the amount due
to her on divorce under the Muslim law applicable to the parties. The
important feature of the case was that the wife had managed the
matrimonial home for more than 40 years and had borne and reared five
children and was incapable of taking up any career or independently
supporting herself at that late stage of her life - remarriage was 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.

Thus, the principle question for consideration before this Court
was the interpretation of Section 127(3)(b) CrPC that where a Muslim
woman had been divorced by her husband and paid her mahr, would it
indemnify the husband from his obligation under the provisions of
Section 125 CrPC. A Five-Judge Bench of this Court reiterated that the
Code of Criminal Procedure controls the proceedings in such matters and
overrides the personal law of the parties. If there was a conflict between
the terms of the Code and the rights and obligations of the individuals,
the former would prevail. This Court pointed out that mahr is more
closely connected with marriage than with divorce though mahr or a
significant portion of it, is usually payable at the time the marriage is
dissolved, whether by death or divorce. This fact is relevant in the
context of Section 125 CrPC even if it is not relevant in the context of
Section 127(3)(b) CrPC. Therefore, this Court held that it is a sum
payable on divorce within the meaning of Section 127(3)(b) CrPC and
held that mahr is such a sum which cannot ipso facto absolve the
husbands liability under the Act.

It was next considered whether the amount of mahr constitutes a
reasonable alternative to the maintenance order. If mahr is not such a
sum, it cannot absolve the husband from the rigour of Section 127(3)(b)
CrPC but even in that case, mahr is part of the resources available to the
woman and will be taken into account in considering her eligibility for a
maintenance order and the quantum of maintenance. Thus this Court
concluded that the divorced women were entitled to apply for
maintenance orders against their former husbands under Section 125
CrPC and such applications were not barred under Section 127(3)(b)
CrPC. The husband had based his entire case on the claim to be
excluded from the operation of Section 125 CrPC on the ground that
Muslim law exempted from any responsibility for his divorced wife
beyond payment of any mahr due to her and an amount to cover
maintenance during the iddat period and Section 127(3)(b) CrPC
conferred statutory recognition on this principle. Several Muslim
organisations, which intervened in the matter, also addressed
arguments. Some of the Muslim social workers who appeared as
interveners in the case supported the wife brought in question the issue
of mata contending that Muslim law entitled a Muslim divorced woman
to claim provision for maintenance from her husband after the iddat
period. Thus, the issue before this Court was: the husband was claiming
exemption on the basis of Section 127(3)(b) CrPC on the ground that he
had given to his wife the whole of the sum which, under the Muslim law
applicable to the parties, was payable on such divorce while the woman
contended that he had not paid the whole of the sum, he had paid only
the mahr and iddat maintenance and had not provided the mata i.e.
provision or maintenance referred to in the Holy Quran, Chapter II, Sura
241. This Court, after referring to the various text books on Muslim law,
held that the divorced wifes right to maintenance ceased on expiration of
iddat period but this Court proceeded to observe that the general
propositions reflected in those statements did not deal with the special
situation where the divorced wife was unable to maintain herself. In
such cases, it was stated that it would be not only incorrect but unjust to
extend the scope of the statements referred to in those text books in
which a divorced wife is unable to maintain herself and opined that the
application of those statements of law must be restricted to that class of
cases in which there is no possibility of vagrancy or destitution arising
out of the indigence of the divorced wife. This Court concluded that
these Aiyats [the Holy Quran, Chapter II, Suras 241-242] leave no doubt
that the Holy Quran imposes an obligation on the Muslim husband to
make provision for or to provide maintenance to the divorced wife. The
contrary argument does less than justice to the teaching of the Holy
Quran. On this note, this Court concluded its judgment.

 There was a big uproar thereafter and Parliament enacted the Act
perhaps, with the intention of making the decision in Shah Banos case
ineffective.

The Statement of Objects & Reasons to the bill, which resulted in
the Act, reads as follows :

The Supreme Court, in Mohd. Ahmed Khan vs. Shah Bano
Begum & Ors. [AIR 1985 SC 945), has held that although the
Muslim Law limits the husbands liability to provide for
maintenance of the divorced wife to the period of iddat, it does not
contemplate or countenance the situation envisaged by Section
125 of the Code of Criminal Procedure, 1973. The Court held that
it would be incorrect and unjust to extend the above principle of
Muslim Law to cases in which the divorced wife is unable to
maintain herself. The Court, therefore, came to the conclusion
that if the divorced wife is able to maintain herself, the husbands
liability ceases with the expiration of the period of iddat but if she
is unable to maintain herself after the period of iddat, she is
entitled to have recourse to Section 125 of the Code of Criminal
Procedure.

 2. This decision has led to some controversy as to the
obligation of the Muslim husband to pay maintenance to the
divorced wife. Opportunity has, therefore, been taken to specify
the rights which a Muslim divorced woman is entitled to at the
time of divorce and to protect her interests. The Bill accordingly
provides for the following among other things, namely:-

(a) a Muslim divorced woman shall be entitled to a reasonable and
fair provision and maintenance within the period of iddat by her
former husband and in case she maintains the children born to
her before or after her divorce, such reasonable provision and
maintenance would be extended to a period of two years from the
dates of birth of the children. She will also be entitled to mahr or
dower and all the properties given to her by her relatives, friends,
husband and the husbands relatives. If the above benefits are
not given to her at the time of divorce, she is entitled to apply to
the Magistrate for an order directing her former husband to
provide for such maintenance, the payment of mahr or dower or
the deliver of the properties;

(b) where a Muslim divorced woman is unable to maintain herself
after the period of iddat, the Magistrate is empowered to make an
order for the payment of maintenance by her relatives who would
be entitled to inherit her property on her death according to
Muslim Law in the proportions in which they would inherit her
property. If any one of such relatives is unable to pay his or her
share on the ground of his or her not having the means to pay, the
Magistrate would direct the other relatives who have sufficient
means to pay the shares of these relatives also. But where, a
divorced woman has no relatives or such relatives or any one of
them has not enough means to pay the maintenance or the other
relatives who have been asked to pay the shares of the defaulting
relatives also do not have the means to pay the shares of the
defaulting relatives the Magistrate would order the State Wakf
Board to pay the maintenance ordered by him or the shares of the
relatives who are unable to pay.

The object of enacting the Act, as stated in the Statement of
Objects & Reasons to the Act, is that this Court, in Shah Banos case
held that Muslim Law limits the husbands liability to provide for
maintenance of the divorced wife to the period of iddat, but it does not
contemplate or countenance the situation envisaged by Section 125 of
the Code of Criminal Procedure, 1973 and, therefore, it cannot be said
that the Muslim husband, according to his personal law, is not under an
obligation to provide maintenance beyond the period of iddat to his
divorced wife, who is unable to maintain herself.

As held in Shah Banos case, the true position is that if the
divorced wife is able to maintain herself, the husbands 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
husbands 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, (1979) 2 SCC 316, and Fuzlunbi vs.
K.Khader Vali & Anr., (1980) 4 SCC 125.

Smt. Kapila Hingorani and Smt. Indira Jaisingh raised the
following contentions in support of the petitioners and they are
summarised as follows :

1. Muslim marriage is a contract and an element of consideration
is necessary by way of mahr or dower and absence of
consideration will discharge the marriage. On the other hand,
Section 125 CrPC has been enacted as a matter of public policy.

2. To enable a divorced wife, who is unable to maintain herself, to
seek from her husband, who is having sufficient means and
neglects or refuses to maintain her, payment of maintenance at
a monthly rate not exceeding Rs.500/-. The expression wife
includes a woman who has been divorced by, or has obtained a
divorce from her husband and has not remarried. The religion
professed by a spouse or the spouses has no relevance in the
scheme of these provisions whether they are Hindus, Muslims,
Christians or the Parsis, pagans or heathens. It is submitted
that Section 125 CrPC is part of the Code of Criminal Procedure
and not a civil law, which defines and governs rights and
obligations of the parties belonging to a particular religion like
the Hindu Adoptions and Maintenance Act, the Shariat, or the
Parsi Matrimonial Act. Section 125 CrPC, it is submitted, was
enacted in order to provide a quick and summary remedy. The
basis there being, neglect by a person of sufficient means to
maintain these and the inability of these persons to maintain
themselves, these provisions have been made and the moral
edict of the law and morality cannot be clubbed with religion.

3. The argument is that the rationale of Section 125 CrPC is to off-
set or to meet a situation where a divorced wife is likely to be
led into destitution or vagrancy. Section 125 CrPC is enacted to
prevent the same in furtherance of the concept of social justice
embodied in Article 21 of the Constitution.

4. It is, therefore, submitted that this Court will have to examine
the questions raised before us not on the basis of Personal Law
but on the basis that Section 125 CrPC is a provision made in
respect of women belonging to all religions and exclusion of
Muslim women from the same results in discrimination between
women and women. Apart from the gender injustice caused in
the country, this discrimination further leads to a monstrous
proposition of nullifying a law declared by this Court in Shah
Banos case. Thus there is a violation of not only equality
before law but also equal protection of laws and inherent
infringement of Article 21 as well as basic human values. If the
object of Section 125 CrPC is to avoid vagrancy, the remedy
thereunder cannot be denied to Muslim women.

5. The Act is an un-islamic, unconstitutional and it has the
potential of suffocating the muslim women and it undermines
the secular character, which is the basic feature of the
Constitution; that there is no rhyme or reason to deprive the
muslim women from the applicability of the provisions of
Section 125 CrPC and consequently, the present Act must be
held to be discriminatory and violative of Article 14 of the
Constitution; that excluding the application of Section 125
CrPC is violative of Articles 14 and 21 of the Constitution; that
the conferment of power on the Magistrate under sub-section
(2) of Section 3 and Section 4 of the Act is different from the
right of a muslim woman like any other woman in the country
to avail of the remedies under Section 125 CrPC and such
deprivement would make the Act unconstitutional, as there is
no nexus to deprive a muslim woman from availing of the
remedies available under Section 125 CrPC, notwithstanding
the fact that the conditions precedent for availing of the said
remedies are satisfied.

 The learned Solicitor General, who appeared for the Union of India,
submitted that when a question of maintenance arises which forms part
of the personal law of a community, what is fair and reasonable is a
question of fact in that context. Under Section 3 of the Act, it is
provided
that a reasonable and fair provision and maintenance to be made and
paid by her former husband within the iddat period would make it clear
that it cannot be for life but would only be for a period of iddat and when
that fact has clearly been stated in the provision, the question of
interpretation as to whether it is for life or for the period of iddat
would
not arise. Challenge raised in this petition is dehors the personal law.
Personal law is a legitimate basis for discrimination, if at all, and,
therefore, does not offend Article 14 of the Constitution. If the
legislature, as a matter of policy, wants to apply Section 125 CrPC to
Muslims, it could also be stated that the same legislature can, by
implication, withdraw such application and make some other provision
in that regard. Parliament can amend Section 125 CrPC so as to exclude
them and apply personal law and the policy of Section 125 CrPC is not to
create a right of maintenance dehors the personal law. He further
submitted that in Shah Banos case, it has been held that a divorced
woman is entitled to maintenance even after the iddat period from the
husband and that is how Parliament also understood the ratio of that
decision. To overcome the ratio of the said decision, the present Act has
been enacted and Section 3(1)(a) is not in discord with the personal law.

 Shri Y.H.Muchhala, learned Senior Advocate appearing for the All
India Muslim Personal Law Board, submitted that the main object of the
Act is to undo the Shah Banos case. He submitted that this Court has
harzarded 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 vs. Koolsom Bee Bee & Ors., 24 IA 196,
particularly in relation to Suras 241 and 242 Chapter II, the Holy Quran..
He submitted that in interpreting Section 3(1)(a) of the Act, the
expressions provision and maintenance are clearly the same and not
different as has been held by some of the High Courts. He contended
that the aim of the Act is not to penalise the husband but to avoid
vagrancy and in this context Section 4 of the Act is good enough to take
care of such a situation and he, after making reference to several works
on interpretation and religious thoughts as applicable to Muslims,
submitted that social ethos of Muslim society spreads a wider net to take
care of a Muslim divorced wife and not at all dependent on the husband.
He adverted to the works of religious thoughts by Sir Syed Ahmad Khan
and Bashir Ahmad, published from Lahore in 1957 at p. 735. He also
referred to the English translation of the Holy Quran to explain the
meaning of gift in Sura 241. In conclusion, he submitted that the
interpretation to be placed on the enactment should be in consonance
with the Muslim personal law and also meet a situation of vagrancy of a
Muslim divorced wife even when there is a denial of the remedy provided
under Section 125 CrPC and such a course would not lead to vagrancy
since provisions have been made in the Act. This Court will have to bear
in mind the social ethos of Muslims, which are different and the
enactment is consistent with law and justice.

It was further contended on behalf of the respondents that the
Parliament enacted the impugned Act, respecting the personal law of
muslims and that itself is a legitimate basis for making a differentiation;
that a separate law for a community on the basis of personal law
applicable to such community, cannot be held to be discriminatory; that
the personal law is now being continued by a legislative enactment and
the entire policy behind the Act is not to confer a right of maintenance,
unrelated to the personal law; that the object of the Act itself was to
preserve the personal law and prevent inroad into the same; that the Act
aims to prevent the vagaries and not to make a muslim woman, destitute
and at the same time, not to penalise the husband; that the impugned
Act resolves all issues, bearing in mind the personal law of muslim
community and the fact that the benefits of Section 125 CrPC have not
been extended to muslim women, would not necessarily lead to a
conclusion that there is no provision to protect the muslim women from
vagaries and from being a destitute; that therefore, the Act is not invalid
or unconstitutional.

 On behalf of the All India Muslim Personal Law Board, certain
other contentions have also been advanced identical to those advanced
by the other authorities and their submission is that the interpretation
placed on the Arabic word mata by this Court in Shah Banos case is
incorrect and submitted that the maintenance which includes the
provision for residence during the iddat period is the obligation of the
husband but such provision should be construed synonymously with the
religious tenets and, so construed, the expression would only include the
right of residence of a Muslim divorced wife during iddat period and also
during the extended period under Section 3(1)(a) of the Act and thus
reiterated various other contentions advanced on behalf of others and
they have also referred to several opinions expressed in various text
books, such as, -

1. The Turjuman al-Quran by Maulana Abul Kalam Azad,
translated into English by Dr. Syed Abdul Latif;
2. Persian Translation of the Quran by Shah Waliullah Dahlavi
3. Al-Manar Commentary on the Quran (Arabic);
4. Al-Isaba by Ibne Hajar Asqualani [Part-2]; Siyar Alam-in-Nubla
by Shamsuddin Mohd. Bin Ahmed BinUsman Az-Zahbi;
5. Al-Maratu Bayn Al-Fiqha Wa Al Qanun by Dr. Mustafa As-
Sabai;
6. Al-Jamil ahkam-il Al-Quran by Abu Abdullah Mohammad Bin
Ahmed Al Ansari Al-Qurtubi;
7. Commentary on the Quran by Baidavi (Arabic);
8. Rooh-ul-Bayan (Arabic) by Ismail Haqqi Affendi;
9. Al Muhalla by Ibne Hazm (Arabic);
10. Al-Ahwalus Shakhsiah (the Personal Law) by Mohammad abu
Zuhra Darul Fikrul Arabi.

On the basis of the aforementioned text books, it is contended that
the view taken in Shah Banos case on the expression mata is not
correct and the whole object of the enactment has been to nullify the
effect of the Shah Banos case so as to exclude the application of the
provision of Section 125 CrPC, however, giving recognition to the
personal law as stated in Sections 3 and 4 of the Act. As stated earlier,
the interpretation of the provisions will have to be made bearing in mind
the social ethos of the Muslim and there should not be erosion of the
personal law.
[
 On behalf of the Islamic Shariat Board, it is submitted that except
for Mr. M. Asad and Dr. Mustafa-as-Sabayi no author subscribed to the
view that the Verse 241 of Chapter II of the Holy Quran casts an
obligation on a former husband to pay maintenance to the Muslim
divorced wife beyond the iddat period. It is submitted that Mr. M. Asads
translation and commentary has been held to be unauthentic and
unreliable and has been subscribed by the Islamic World League only. It
is submitted that Dr. Mustafa-as-Sabayi is a well-known author in
Arabic but his field was history and literature and not the Muslim law. It
was submitted that neither are they the theologists nor jurists in terms
of Muslim law. It is contended that this Court wrongly relied upon Verse
241 of Chapter II of the Holy Quran and the decree in this regard is to be
referred to Verse 236 of Chapter II which makes paying mata as
obligatory for such divorcees who were not touched before divorce and
whose Mahr was not stipulated. It is submitted that such divorcees do
not have to observe iddat period and hence not entitled to any
maintenance. Thus the obligation for mata has been imposed which is
a one time transaction related to the capacity of the former husband.
The impugned Act has no application to this type of case. On the basis
of certain texts, it is contended that the expression mata which
according to different schools of Muslim law, is obligatory only in typical
case of a divorce before consummation to the woman whose mahr was
not stipulated and deals with obligatory rights of maintenance for
observing iddat period or for breast-feeding the child. Thereafter,
various
other contentions were raised on behalf of the Islamic Shariat Board as
to why the views expressed by different authors should not be accepted.

 Dr. A.M.Singhvi, learned Senior Advocate who appeared for the
National Commission for Women, submitted that the interpretation
placed by the decisions of the Gujarat, Bombay, Kerala and the minority
view of the Andhra Pradesh High Courts should be accepted by us. As
regards the constitutional validity of the Act, he submitted that if the
interpretation of Section 3 of the Act as stated later in the course of
this
judgment is not acceptable then the consequence would be that a
Muslim divorced wife is permanently rendered without remedy insofar as
her former husband is concerned for the purpose of her survival after the
iddat period. Such relief is neither available under Section 125 CrPC nor
is it properly compensated by the provision made in Section 4 of the Act.
He contended that the remedy provided under Section 4 of the Act is
illusory inasmuch as firstly, she cannot get sustenance from the parties
who were not only strangers to the marital relationship which led to
divorce; secondly, wakf boards would usually not have the means to
support such destitute women since they are themselves perennially
starved of funds and thirdly, the potential legatees of a destitute woman
would either be too young or too old so as to be able to extend requisite
support. Therefore, realistic appreciation of the matter will have to be
taken and this provision will have to be decided on the touch stone of
Articles 14, 15 and also Article 21 of the Constitution and thus the
denial of right to life and liberty is exasperated by the fact that it
operates oppressively, unequally and unreasonably only against one
class of women. While Section 5 of the Act makes the availability and
applicability of the remedy as provided by Section 125 CrPC dependent
upon the whim, caprice, choice and option of the husband of the Muslim
divorcee who in the first place is sought to be excluded from the ambit of
Section 3 of the post-iddat period and, therefore, submitted that this
provision will have to be held unconstitutional.

 This Court in Shah Banos case held that although Muslim
personal law limits the husbands liability to provide maintenance for
his divorced wife to the period of iddat, it does not contemplate a
situation envisaged by Section 125 CrPC of 1973. The Court held that it
would not be incorrect or unjustified to extend the above principle of
Muslim Law to cases in which a divorced wife is unable to maintain
herself and, therefore, the Court came to the conclusion that if the
divorced wife is able to maintain herself the husbands liability ceases
with the expiration of the period of iddat, but if she is unable to
maintain
herself after the period of iddat, she is entitled to recourse to Section
125
CrPC. This decision having imposed obligations as to the liability of
Muslim husband to pay maintenance to his divorced wife, Parliament
endorsed by the Act the right of a Muslim woman to be paid maintenance
at the time of divorce and to protect her rights.
The learned counsel have also raised certain incidental questions
arising in these matters to the following effect-
1) Whether the husband who had not complied with the
orders passed prior to the enactments and were in arrears
of payments could escape from their obligation on the
basis of the Act, or in other words, whether the Act is
retrospective in effect?
2) Whether Family Courts have jurisdiction to decide the
issues under the Act?
3) What is the extent to which the Wakf Board is liable
under the Act?

The learned counsel for the parties have elaborately argued on a
very wide canvass. Since we are only concerned in this Bench with the
constitutional validity of the provisions of the Act, we will consider only
such questions as are germane to this aspect. We will decide only the
question of constitutional validity of the Act and relegate the matters
when other issues arise to be dealt with by respective Benches of this
Court either in appeal or special leave petitions or writ petitions.

In interpreting the provisions where matrimonial relationship is
involved, we have to consider the social conditions prevalent in our
society. In our society, whether they belong to the majority or the
minority group, what is apparent is that there exists a great disparity in
the matter of economic resourcefulness between a man and a woman.
Our society is male dominated both economically and socially and
women are assigned, invariably, a dependant role, irrespective of the
class of society to which she belongs. A woman on her marriage very
often, though highly educated, gives up her all other avocations and
entirely devotes herself to the welfare of the family, in particular she
shares with her husband, her emotions, sentiments, mind and body, and
her investment in the marriage is her entire life a sacramental sacrifice
of her individual self and is far too enormous to be measured in terms of
money. When a relationship of this nature breaks up, in what manner
we could compensate her so far as emotional fracture or loss of
investment is concerned, there can be no answer. It is a small solace to
say that such a woman should be compensated in terms of money
towards her livelihood and such a relief which partakes basic human
rights to secure gender and social justice is universally recognised by
persons belonging to all religions and it is difficult to perceive that
Muslim law intends to provide a different kind of responsibility by
passing on the same to those unconnected with the matrimonial life such
as the heirs who were likely to inherit the property from her or the wakf
boards. Such an approach appears to us to be a kind of distortion of the
social facts. Solutions to such societal problems of universal magnitude
pertaining to horizons of basic human rights, culture, dignity and
decency of life and dictates of necessity in the pursuit of social justice
should be invariably left to be decided on considerations other than
religion or religious faith or beliefs or national, sectarian, racial or
communal constraints. Bearing this aspect in mind, we have to interpret
the provisions of the Act in question.

Now it is necessary to analyse the provisions of the Act to
understand the scope of the same. The Preamble to the Act sets out that
it is an Act to protect the rights of Muslim women who have been
divorced by, or have obtained divorce from, their husbands and to
provide for matters connected therewith or incidental thereto. A
divorced woman is defined under Section 2(a) of the Act to mean a
divorced woman who was married according to Muslim Law, and has
been divorced by, or has obtained divorce from her husband in
accordance with Muslim Law; iddat period is defined under Section 2(b)
of the Act to mean, in the case of a divorced woman,-

(i) three menstrual courses after the date of divorce, if she is
subject to menstruation;

(ii) three lunar months after her divorce, if she is not subject to
menstruation; and

(iii) if she is enceinte at the time of her divorce, the period
between the divorce and the delivery of her child or the
termination of her pregnancy whichever is earlier.
Sections 3 and 4 of the Act are the principal sections, which are
under attack before us. Section 3 opens up with a non-obstante clause
overriding all other laws and provides that a divorced woman shall be
entitled to -

(a) a reasonable and fair provision and maintenance to be made
and paid to her within the period of iddat by her former
husband;

(b) where she maintains the children born to her before or after her
divorce, a reasonable provision and maintenance to be made
and paid by her former husband for a period of two years from
the respective dates of birth of such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid
to her at the time of her marriage or at any time thereafter
according to Muslim Law; and

(d) all the properties given to her by her before or at the time of
marriage or after the marriage by her relatives, friends,
husband and any relatives of the husband or his friends.

 Where such reasonable and fair provision and maintenance or the
amount of mahr or dower due has not been made and paid or the
properties referred to in clause (d) of sub-section (1) have not been
delivered to a divorced woman on her divorce, she or any one duly
authorised by her may, on her behalf, make an application to a
Magistrate for an order for payment of such provision and maintenance,
mahr or dower or the delivery of properties, as the case may be. Rest of
the provisions of Section 3 of the Act may not be of much relevance,
which are procedural in nature.

Section 4 of the Act provides that, with an overriding clause as to
what is stated earlier in the Act or in any other law for the time being in
force, where the Magistrate is satisfied that a divorced woman has not
re-married and is not able to maintain herself after the iddat period, he
may make an order directing such of her relatives as would be entitled to
inherit her property on her death according to Muslim Law to pay such
reasonable and fair maintenance to her as he may determine fit and
proper, having regard to the needs of the divorced woman, the standard
of life enjoyed by her during her marriage and the means of such
relatives and such maintenance shall be payable by such relatives in the
proportions in which they would inherit her property and at such periods
as he may specify in his order. If any of the relatives do not have the
necessary means to pay the same, the Magistrate may order that the
share of such relatives in the maintenance ordered by him be paid by
such of the other relatives as may appear to the Magistrate to have the
means of paying the same in such proportions as the Magistrate may
think fit to order. Where a divorced woman is unable to maintain herself
and she has no relatives as mentioned in sub-section (1) or such
relatives or any one of them has not enough means to pay the
maintenance ordered by the Magistrate or the other relatives have not
the means to pay the shares of those relatives whose shares have been
ordered by the Magistrate to be paid by such other relatives under the
second proviso to sub-section (1), the Magistrate may, by order direct the
State Wakf Board, functioning in the area in which the divorced woman
resides, to pay such maintenance as determined by him as the case may
be. It is, however, significant to note that Section 4 of the Act refers
only
to payment of maintenance and does not touch upon the provision to
be made by the husband referred to in Section 3(1)(a) of the Act.

Section 5 of the Act provides for option to be governed by the
provisions of Sections 125 to 128 CrPC. It lays down that if, on the date
of the first hearing of the application under Section 3(2), a divorced
woman and her former husband declare, by affidavit or any other
declaration in writing in such form as may be prescribed, either jointly or
separately, that they would prefer to be governed by the provisions of
Sections 125 to 128 CrPC, and file such affidavit or declaration in the
court hearing the application, the Magistrate shall dispose of such
application accordingly.

 A reading of the Act will indicate that it codifies and regulates
 the
obligations due to a Muslim woman divorcee by putting them outside the
scope of Section 125 CrPC as the divorced woman has been defined as
Muslim woman who was married according to Muslim law and has been
divorced by or has obtained divorce from her husband in accordance
with the Muslim law. But the Act does not apply to a Muslim woman
whose marriage is solemnized either under the Indian Special Marriage
Act, 1954 or a Muslim woman whose marriage was dissolved either
under Indian Divorce Act, 1969 or the Indian Special Marriage Act, 1954.
The Act does not apply to the deserted and separated Muslim wives. The
maintenance under the Act is to be paid by the husband for the duration
of the iddat period and this obligation does not extend beyond the period
of iddat. Once the relationship with the husband has come to an end
with the expiry of the iddat period, the responsibility devolves upon the
relatives of the divorcee. The Act follows Muslim personal law in
determining which relatives are responsible under which circumstances.
If there are no relatives, or no relatives are able to support the
divorcee,
then the Court can order the State Wakf Boards to pay the maintenance.

 Section 3(1) of the Act provides that a divorced woman shall be
entitled to have from her husband, a reasonable and fair maintenance
which is to be made and paid to her within the iddat period. Under
Section 3(2) the Muslim divorcee can file an application before a
Magistrate if the former husband has not paid to her a reasonable and
fair provision and maintenance or mahr due to her or has not delivered
the properties given to her before or at the time of marriage by her
relatives, or friends, or the husband or any of his relatives or friends.
Section 3(3) provides for procedure wherein the Magistrate can pass an
order directing the former husband to pay such reasonable and fair
provision and maintenance to the divorced woman as he may think fit
and proper having regard to the needs of the divorced woman, standard
of life enjoyed by her during her marriage and means of her former
husband. The judicial enforceability of the Muslim divorced womans
right to provision and maintenance under Section (3)(1)(a) of the Act has
been subjected to the condition of husband having sufficient means
which, strictly speaking, is contrary to the principles of Muslim law as
the liability to pay maintenance during the iddat period is unconditional
and cannot be circumscribed by the financial means of the husband.
The purpose of the Act appears to be to allow the Muslim husband to
retain his freedom of avoiding payment of maintenance to his erstwhile
wife after divorce and the period of iddat.

A careful reading of the provisions of the Act would indicate that a
divorced woman is entitled to a reasonable and fair provision for
maintenance. It was stated that Parliament seems to intend that the
divorced woman gets sufficient means of livelihood, after the divorce and,
therefore, the word provision indicates that something is provided in
advance for meeting some needs. In other words, at the time of divorce
the Muslim husband is required to contemplate the future needs and
make preparatory arrangements in advance for meeting those needs.
Reasonable and fair provision may include provision for her residence,
her food, her cloths, and other articles. The expression within should
be read as during or for and this cannot be done because words
cannot be construed contrary to their meaning as the word within
would mean on or before, not beyond and, therefore, it was held that
the Act would mean that on or before the expiration of the iddat period,
the husband is bound to make and pay a maintenance to the wife and if
he fails to do so then the wife is entitled to recover it by filing an
application before the Magistrate as provided in Section 3(3) but 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.

The important section in the Act is Section 3 which provides that
divorced woman is entitled to obtain from her former husband
maintenance, provision and mahr, and to recover from his possession
her wedding presents and dowry and authorizes the magistrate to order
payment or restoration of these sums or properties. The crux of the
matter is that the divorced woman shall be entitled to a reasonable and
fair provision and maintenance to be made and paid to her within the
iddat period by her former husband. The wordings of Section 3 of the
Act appear to indicate that the husband has two separate and distinct
obligations : (1) to make a reasonable and fair provision for his divorced
wife; and (2) to provide maintenance for her. The emphasis of this
section is not on the nature or duration of any such provision or
maintenance, but on the time by which an arrangement for payment of
provision and maintenance should be concluded, namely, within the
iddat period. If the provisions are so read, the Act would exclude from
liability for post-iddat period maintenance to a man who has already
discharged his obligations of both reasonable and fair provision and
maintenance by paying these amounts in a lump sum to his wife, in
addition to having paid his wifes mahr and restored her dowry as per
Section 3(1)(c) and 3(1)(d) of the Act. Precisely, the point that arose
for
consideration in Shah Banos case was that the husband has not made a
reasonable and fair provision for his divorced wife even if he had paid
the amount agreed as mahr half a century earlier and provided iddat
maintenance and he was, therefore, ordered to pay a specified sum
monthly to her under Section 125 CrPC. This position was available to
Parliament on the date it enacted the law but even so, the provisions
enacted under the Act are a reasonable and fair provision and
maintenance to be made and paid as provided under Section 3(1)(a) of
the Act and these expressions cover different things, firstly, by the use
of
two different verbs to be made and paid to her within the iddat period,
it is clear that a fair and reasonable provision is to be made while
maintenance is to be paid; secondly, Section 4 of the Act, which
empowers the magistrate to issue an order for payment of maintenance
to the divorced woman against various of her relatives, contains no
reference to provision. Obviously, the right to have a fair and
reasonable provision in her favour is a right enforceable only against the
womans former husband, and in addition to what he is obliged to pay as
maintenance; thirdly, the words of the Holy Quran, as translated by
Yusuf Ali of mata as maintenance though may be incorrect and that
other translations employed the word provision, this Court in Shah
Banos 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
Banos case had provided anything at all by way of mata to his divorced
wife. The contention put forth on behalf of the other side is that a
divorced Muslim woman who is entitled to mata is only a single or one
time transaction which does not mean payment of maintenance
continuously at all. This contention, apart from supporting the view that
the word provision in Section 3(1)(a) of the Act incorporates mata as a
right of the divorced Muslim woman distinct from and in addition to
mahr and maintenance for the iddat period, also enables a reasonable
and fair provision and a reasonable and fair provision as provided
under Section 3(3) of the Act would be with reference to the needs of the
divorced woman, the means of the husband, and the standard of life the
woman enjoyed during the marriage and there is no reason why such
provision could not take the form of the regular payment of alimony to
the divorced woman, though it may look ironical that the enactment
intended to reverse the decision in Shah Banos case, actually codifies
the very rationale contained therein.

A comparison of these provisions with Section 125 CrPC will make
it clear that requirements provided in Section 125 and the purpose,
object and scope thereof being to prevent vagrancy by compelling those
who can do so to support those who are unable to support themselves
and who have a normal and legitimate claim to support is satisfied. If
that is so, the argument of the petitioners that a different scheme being
provided under the Act which is equally or more beneficial on the
interpretation placed by us from the one provided under the Code of
Criminal Procedure deprive them of their right loses its significance.
The object and scope of Section 125 CrPC is to prevent vagrancy by
compelling those who are under an obligation to support those who are
unable to support themselves and that object being fulfilled, we find it
difficult to accept the contention urged on behalf of the petitioners.

Even under the Act, the parties agreed that the provisions of
Section 125 CrPC would still be attracted and even otherwise, the
Magistrate has been conferred with the power to make appropriate
provision for maintenance and, therefore, what could be earlier granted
by a Magistrate under Section 125 CrPC would now be granted under the
very Act itself. This being the position, the Act cannot be held to be
unconstitutional.

As on the date the Act came into force the law applicable to Muslim
divorced women is as declared by this Court in Shah Banos case. In
this case to find out the personal law of Muslims with regard to divorced
womens rights, the starting point should be Shah Banos 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 Banos case without mutilating its underlying ratio.
We have carefully analysed the same and come to the conclusion that the
Act actually and in reality codifies what was stated in Shah Banos 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 Banos 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 Banos case this Court has clearly explained as to the
rationale behind Section 125 CrPC to make provision for maintenance to
be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or
destitution on the part of a Muslim woman. The contention put forth on
behalf of the Muslims organisations who are interveners before us is that
under the Act vagrancy or destitution is sought to be avoided but not by
punishing the erring husband, if at all, but by providing for maintenance
through others. If for any reason the interpretation placed by us on the
language of Sections 3(1)(a) and 4 of the Act is not acceptable, we will
have to examine the effect of the provisions as they stand, that is, a
Muslim woman will not be entitled to maintenance from her husband
after the period of iddat once the Talaq is pronounced and, if at all,
thereafter maintenance could only be recovered from the various persons
mentioned in Section 4 or from the Wakf Board. This Court in Olga
Tellis v. Bombay Municipal Corporation, 1985(3) SCC 545, and Maneka
Gandhi v. Union of India, 1978 (1) SCC 248, held that the concept of
right to life and personal liberty guaranteed under Article 21 of the
Constitution would include the right to live with dignity. Before the
Act, a Muslim woman who was divorced by her husband was granted a
right to maintenance from her husband under the provisions of Section
125 CrPC until she may re-marry and such a right, if deprived, would
not be reasonable, just and fair. Thus the provisions of the Act depriving
the divoced Muslim women of such a right to maintenance from her
husband and providing for her maintenance to be paid by the former
husband only for the period of iddat and thereafter to make her run from
pillar to post in search of her relatives one after the other and
ultimately
to knock at the doors of the Wakf Board does not appear to be
reasonable and fair substitute of the provisions of Section 125 CrPC.
Such deprivation of the divorced Muslim women of their right to
maintenance from their former husbands under the beneficial provisions
of the Code of Criminal Procedure which are otherwise available to all
other women in India cannot be stated to have been effected by a
reasonable, right, just and fair law and, if these provisions are less
beneficial than the provisions of Chapter IX of the Code of Criminal
Procedure, a divorced Muslim woman has obviously been unreasonably
discriminated and got out of the protection of the provisions of the
general law as indicated under the Code which are available to Hindu,
Buddhist, Jain, Parsi or Christian women or women belonging to any
other community. The provisions prima facie, therefore, appear to be
violative of Article 14 of the Constitution mandating equality and equal
protection of law to all persons otherwise similarly circumstanced and
also violative of Article 15 of the Constitution which prohibits any
discrimination on the ground of religion as the Act would obviously apply
to Muslim divorced women only and solely on the ground of their
belonging to the Muslim religion. It is well settled that on a rule of
construction a given statute will become ultra vires or unconstitutional
and, therefore, void, whereas another construction which is permissible,
the statute remains effective and operative the court will prefer the
latter
on the ground that Legislature does not intend to enact unconstitutional
laws. We think, the latter interpretation should be accepted and,
therefore, the interpretation placed by us results in upholding the
validity of the Act. It is well settled that when by appropriate reading
of
an enactment the validity of the Act can be upheld, such interpretation is
accepted by courts and not the other way.

 The learned counsel appearing for the Muslim organisations
contended after referring to various passages from the text books to
which we have adverted to earlier to state that the law is very clear that
a
divorced Muslim woman is entitled to maintenance only upto the stage of
iddat and not thereafter. What is to be provided by way of Mata is only
a benevolent provision to be made in case of divorced Muslim woman
who is unable to maintain herself and that too by way of charity or
kindness on the part of her former husband and not as a result of her
right flowing to the divorced wife. The effect of various interpretations
placed on Suras 241 and 242 of Chapter 2 of Holy Quran has been
referred to in Shah Banos case. Shah Banos case clearly enunciated
what the present law would be. It made a distinction between the
provisions to be made and the maintenance to be paid. It was noticed
that the maintenance is payable only 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 Banos 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 Banos 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 vs. Arab Bail Mohmuna
Saiyadbhai & Ors. etc., AIR 1988 (Guj.) 141; Ali vs. Sufaira, (1988) 3
Crimes 147; K. Kunhashed Hazi v. Amena, 1995 Crl.L.J. 3371; K.
Zunaideen v. Ameena Begum, (1998] II DMC 468; Karim Abdul Shaik v.
Shenaz Karim Shaik, 2000 Cr.L.J. 3560 and Jaitunbi Mubarak Shaikh
v. Mubarak Fakruddin Shaikh & Anr., 1999 (3) Mh.L.J. 694, while
interpreting the provision of Sections 3(1)(a) and 4 of the Act, it is
held
that a divorced Muslim woman is entitled to a fair and reasonable
provision for her future being made by her former husband which must
include maintenance for future extending beyond the iddat period. It
was held that the liability of the former husband to make a reasonable
and fair provision under Section 3(1)(a) of the Act is not restricted only
for the period of iddat but that divorced Muslim woman is entitled to a
reasonable and fair provision for her future being made by her former
husband and also to maintenance being paid to her for the iddat period.
A lot of emphasis was laid on the words made and paid and were
construed to mean not only to make provision for the iddat period but
also to make a reasonable and fair provision for her future. A Full
Bench of the Punjab and Haryana High Court in Kaka v. Hassan Bano
& Anr., II (1998) DMC 85 (FB), has taken the view that under Section
3(1)(a) of the Act a divorced Muslim woman can claim maintenance
which is not restricted to iddat period. To the contrary it has been
held
that it is not open to the wife to claim fair and reasonable provision for
the future in addition to what she had already received at the time of her
divorce; that the liability of the husband is limited for the period of
iddat
and thereafter if she is unable to maintain herself, she has to approach
her relative or Wakf Board, by majority decision in Umar Khan Bahamami
v. Fathimnurisa, 1990 Cr.L.J. 1364; Abdul Rashid v. Sultana Begum,
1992 Cr.L.J. 76; Abdul Haq v. Yasima Talat; 1998 Cr.L.J. 3433; Md.
Marahim v. Raiza Begum, 1993 (1) DMC 60. Thus preponderance of
judicial opinion is in favour of what we have concluded in the
interpretation of Section 3 of the Act. The decisions of the High Courts
referred to herein that are contrary to our decision stand overruled.

 While upholding the validity of the Act, we may sum up our
conclusions:

1) a Muslim husband is liable to make reasonable and fair
provision for the future of the divorced wife which
obviously includes her maintenance as well. Such a
reasonable and fair provision extending beyond the iddat
period must be made by the husband within the iddat
period in terms of Section 3(1)(a) of the Act.
2) Liability of Muslim husband to his divorced wife arising
under Section 3(1)(a) of the Act to pay maintenance is not
confined to iddat period.
3) A divorced Muslim woman who has not remarried and
who is not able to maintain herself after iddat period can
proceed as provided under Section 4 of the Act against
her relatives who are liable to maintain her in proportion
to the properties which they inherit on her death
according to Muslim law from such divorced woman
including her children and parents. If any of the
relatives being unable to pay maintenance, the Magistrate
may direct the State Wakf Board established under the
Act to pay such maintenance.
4) The provisions of the Act do not offend Articles 14, 15 and
21 of the Constitution of India.

 In the result, the writ petition Nos. 868/86, 996/86, 1001/86,
1055/86, 1062/86, 1236/86, 1259/86 and 1281/86 challenging the
validity of the provisions of the Act are dismissed. All other matters where there are other questions raised, the same
shall stand relegated for consideration by appropriate Benches of this
Court.
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k.inbasakaran,advoca… on Sec.138 of N.I.Act – Ter…
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