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mere filing of criminal case does not amount to treating the petitioner with cruelty unless it is substantiated that it was filed with false allegations to harass the petitioners about which there is no evidence. On the other hand, if the allegations made in the Criminal case are true it amounts to that the petitioner treated the respondent with cruelty.

THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. KRISHNA MOHANREDDY   FAMILY COURT APPEAL No.56 OF 2011 JUDGEMENT :(Per Hon’ble Sri Justice. G. Krishna Mohan Reddy)  This Family Court Appeal filed under Section 19 of the Family Courts Act is directed against order of dismissal dated 24-01-2011, passed in O.P. No.284 of … Continue reading

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.: 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. … Continue reading

Muslim Personal Law-Concept of divorce-Whether, on the pronounccments of “talaq” and on the expiry of the period of iddat a divorced wife ceases to be a wife. Code of Criminal Procedure Code, 1973 (Act II of 1974) Sections 125(1) (a) and Explanation (b) thereunder, Section 125 (3) and the Explanation, under the proviso thereto and section 127 (3) (b), scope and interpretation of-Correctness of three Judges.’ Bench decision reported in (1979) 2 SCR 75 and (1980) 3 SCR 1127 to the effect that section 125 of the code applies to Muslims and divorced Muslim wife is entitled to maintenance-Whether there is any conflict between the provisions of section 125 and that of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife. Code of Criminal Procedure, 1973, section 127 (3) (b) read with section 2 of the Shariat Act XXVI of 1937-Whether section 127 (3) (b) debars payment of maintenance to a divorced wife, once the Mahar or dower is paid-Whether the liability of the husband to maintain a divorced wife is limited to the period of “iddat” Nature of Mahr or dower-Whether Mehr is maintenance. = Under section 125 (1) (a), if any person, having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding five hundred rupees in the whole. Under Explanation (b) thereunder ‘ wife” includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Under the explanation below sub section 3 of section 125, if a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be a just ground for his wife’s refusal to live with him. Keeping this in view, if in the trial arising out of 845 an application made under section 125, and if the husband offers to maintain his wife on condition of living with him, the Magistrate may consider any of the grounds of the wife’s refusal to live with her husband before ordering the maintenance. Under section 127 (3) (b), the Magistrate shall cancel the order passed by him under section 125, in favour of a woman who has been divorced by, or has obtained a divorce from her husband if the woman who has been divorced by her husband has received, whether before or after the date of the said order, the whole of the sum, which, under any customary or personal law applicable to the parties was payable on such divorce. The appellant. who is an advocate by profession was married to the respondent in 1932. Three ions and two daughters were born of that marriage In 1975, the appellant drove the respondent out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant under section 125 of the Code of Criminal Procedure, in the Court of the Judicial Magistrate (First class) Indore, asking for maintenance at the rate of Rs. 500 per month, in view of the professional income of the appellant which was about Rs. 60,000 per annum. On November 6, 1978, the appellant divorced the respondent by an irrevocable “talaq” and took up the defence that she had ceased to be his wife by reason of the divorce granted by him; that he was, therefore, under no obligation to provide maintenance for her; that he had already paid maintenance for her at the rate of Rs. 200 per month for about two years, and that, he had deposited a sum of Rs. 3,000 in the court by way of “dower or Mahr” during the period of “iddat”. In August 1979, the Magistrate directed the appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. In a revisional application Sled by the respondent the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. Hence the appeal by special leave by the husband. The view taken in the earlier two three Judges’ Benches of the Supreme Court presided over by Krishna Iyer, J. and reported in [1979] 2 SCR 75, and [1980] 3 SCR 1127, to the effect that section 125 of the Code applies to Muslims also and that therefore, the divorced Muslim wife is entitled to apply for maintenance was doubted, by the Bench consisting of Fazal Ali and Varadarajan, JJ., since in their opinion the said decisions required reconsideration by a larger Bench consisting of more than three judges as the decisions are not only in direct contravention of the plain and unambiguous language of section 127 (3) (b) of the Code which far from overriding the Muslim law on the subject protects and applies the same in case where a wife has been divorced by the husband and the dower specified has been paid and the period of iddat has been observed but also militates against the fundamental concept of divorce by the husband and its consequences under the Muslim law which has been expressly protected by section 2 of the Muslim Personal Law (Shariat) Application Act, 1937-an Act which was not noticed in the said two decisions. Dismissing the appeals, the Court ^ Held: (Per Chandrachud, C. J.) 1. The Judgments of the Supreme Court in Bai Tahira (Krishna lyer, J., Tulzapurkar, J. and Pathak, J.) and Fazlunbi (Krishna pyer, J, Chinnappa 846 Reddy, J. and A.P. Sen, J.) are correct, except to the extent that the statement at page 80 of the report in Bal Tahira made in the context of section 127 (3) (b) namely, “payment of Mahr money, as a customary discharge is within the cognizance of that provision”. Justice Krishna Lyre who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation 90 as to advance the purpose of the law. These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society.A divorced Muslim wife is, therefore, entitled to apply for maintenance under section 125 of the Code. [865H, 866A-C] 2.1 Clause (b) of the Explanation to section 125 (1) of the Code, which defines “wife” as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Wife, means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman so long as she has not married, is a wife for the purpose of section 125. [855A-B: 854B] 2.2 Under section 488 of the Code of 1898, the wife’s right to maintenance depended upon the continuance of her married status. Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be extended to a divorced woman, so long as she has not re married after the divorce. That is the genesis of clause (b) of the Explanation to section 125 (I). Section 125 of the Code is truly secular in character. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is wholly irrelevant in the application of these-provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular relations, like the Hindu Adoptions and Maintenance Act, The Shariat, or the Parsi Matrimonial Act. It would make no difference as to what ii the religion professed by the neglected wife, child or parent. [834D-E: 855E-G] 2.3 Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True that they do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the indi- 847 viduals’ obligation to the society t a prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed With relation. [834G-Hl That the right conferred by section 125 can be exercised irrespective of the personal law of the parties, is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125 (3) of the Code. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage leave alone, three or four other marriages, which a Mohammedan may have under the Islamic law. Further it shows unmistakably, that section 125 overrides the personal law, if there is any conflict between the two [836B-C,F-G] Jagir Kaur v. Jaswant Singh, [1964] 2 SCR 73,84, Nanak Chand v. Shri Chandra Kishore Agarwala, 11970] I SCR 56C applied. 3.1 The contention that, according to Muslim Personal Law the husband’s liability to provide for the maintenance of his divorced wife is limited to the period of iddat. despite the fact that she is unable to maintain herself cannot be accepted, since that law does not contemplate or countenance the situation envisaged by section 125 of the Code. Whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances, and at all events is not the subject matter of section 125. Section 125 deals with cases in which a person who is possessed of sufficient means neglects or refuses to maintain amongst others, his wife who is unable to maintain herself. [838H, 851A-B] 3.2 One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent, both in quantum and in duration, of the husband’s liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dirhams which is equivalent to three or four rupees. But one must have regard to the realities of life. Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. The application of those statements of law to the contrary in text-books on Muslim 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. [858D-G] 3.3 The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. Thus there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife 848 who is unable to maintain herself. Aiyat No. 241 and 242 of ‘the Holy Koran’ fortify that the Holy Koran imposed 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 teachings of Koran. [859C-D; 862C-D] 3.4 Mahr is not the amount payable by the husband to the wife on divorce and therefore, does not fall within the meaning of section 127 (3) (b) of the Code and the facile answer of the All India Muslim Law Board that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephews and cousins, to support her is a most unreasonable view of law as well as of life. [863E-F, 866E-F] 3.5 It is true under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called ‘prompt” which is payable on demand, and the other is called “deferred”, which is payable on the dissolution of the marriage by death or by divorce. But, the fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify that it is payable ‘on divorce’. even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. [863B-D] 3.6 Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce’, which occurs in section 127 (3) (b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the marriage. Therefore. no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce.A man may marry a woman for love, looks, learning or nothing at all. And, he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable on divorce’. Thus, the payment of Mahr may be deferred to a future date as, for example, death or divorce. But, that does not mean that the payment of the deferred dower is occasioned by these events. [863D-G] Similarly, the provision contained in section 127 (3) (b) may have been introduced because of the misconception that dower is an amount payable ‘on divorce.’ But, that again cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce. [863H] Hamira Bibi v. Zubaida Bibi, 43 Indian Appeal 294; Syed Sabir Hussain v. Farzand Hasan, 65 Indian Appeal 119 and 127 referred to. 849 OBSERVATION (Article 44 of our Constitution has remained a dead letter. There is no evidence of any official activity for framing a common civil code for the country.A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It is the State which incharged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.A beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.) =1985 AIR 945, 1985( 3 )SCR 844, 1985( 2 )SCC 556, 1985( 1 )SCALE767 ,

PETITIONER: MOHD. AHMED KHAN Vs. RESPONDENT: SHAH BANO BEGUM AND ORS. DATE OF JUDGMENT23/04/1985 BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) MISRA RANGNATH DESAI, D.A. REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J) CITATION: 1985 AIR 945 1985 SCR (3) 844 1985 SCC (2) 556 1985 SCALE (1)767 CITATOR INFO : F 1986 SC 587 … Continue reading

Constitution of India-Article 44-Uniform Civil Code- Necessity of-Emphasised. Indian Divorce, Act, 1869-Ss. 18, 19 and 22-Petition by wife-Allegation of impotence of husband-Nullity of marriage or judicial separation sought-High Court rejecting prayer for nullity, but granting judicial separation on account of cruelty-Validity of order-Supreme Court holding irretrievable break-down of marriage. Hindu Marriage Act, 1955 ss. 10 and 13B-Special Marriage Act, 1954-Ss. 23 to 28-Parsi Marriage and Divorce Act, 1936-Ss. 31 to 34-Dissolution of Muslim Marriage Act, 1939-S. 2-Grounds for dissolution of marriage not uniform- Necessity for uniform Civil Code-Stressed. = The petitioner belonged to the ‘Khasi Tribe’ of Maghalaya and was born and brought up as a Presbytarian Christian. She is now a member of the Indian Foreign Service. The respondent-husband is a Sikh. They were married under the Indian Christian Marriage Act 1872. The petitioner filed a petition in 1980, for declaration of nullity of marriage or judicial separation under ss. 18, 19 and 22 of the Indian Divorce Act, 1869, on the ground of the impotence of her husband. A Single Judge of the High Court rejected the prayer for declaration of nullity of marriage, but granted a decree for judicial separation on the ground of cruelty. Division Bench affirmed the decision of the Single Judge on appeal. In the special leave petition filed by wife, ^ HELD: (1) A comparison of the relevant provisions of the Christian Marriage Act 1872, Hindu Marriage Act 1955, Special Marriage Act 1954, Parsi Marriage and Divorce Act 1936, Dissolution of Muslim Marriage Act, 1939, show that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. [717 B] (2) Under the Hindu Marriage Act, a decree for the judicial separation may be followed by a decree for the dissolution of marriage on the lapse of 705 one year or upwards from date of the passing of a decree for judicial separation, if meanwhile there has been no resumption of cohabitation. There is no corresponding provision under the Indian Divorce Act and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period of time. [711 B-C] (3) In the instant case, the marriage appears to have broken down irretrievably. If the findings of the High Court stand, there is no way out for the couple. They will continue to be tied to each other since neither mutual consent nor irretrievably break-down of marriage is a ground for divorce, under the Indian Divorce Act. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. The parties are bound together by a marital tie which is better untied. [717 B-C] (4) Time has now come for the intervention of the legislature to provide for a uniform code of marriage and divorce as envisaged by Article 44 and to provide by law for a way out of the unhappy situations in which couples find themselves in. It is necessary to introduce irretrievably break-down of marriage, and mutual consent as grounds of divorce in all cases. [717 C-D] =1985 AIR 935, 1985( 1 )Suppl.SCR 704, 1985( 3 )SCC 62, 1985( 1 )SCALE952 ,

PETITIONER: MS. JORDAN DIENGDEH Vs. RESPONDENT: S.S. CHOPRA DATE OF JUDGMENT10/05/1985 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) MISRA, R.B. (J) CITATION: 1985 AIR 935 1985 SCR Supl. (1) 704 1985 SCC (3) 62 1985 SCALE (1)952 ACT: Constitution of India-Article 44-Uniform Civil Code- Necessity of-Emphasised. Indian Divorce, Act, 1869-Ss. 18, 19 … Continue reading

Code of Criminal Procedure, 1973 : S. 125-Children of Muslim parents-Held : entitled to grant maintenance for the period till they attain majority or are able to maintain themselves, and in case of female children till they get married. Muslim Women (Protection of Rights on Divorce) Act 1986-S. 3(1)(b)-Divorced Muslim woman-Provision for maintenance to be paid by her former husband for a period of two years from the respective dates of birth of the Children. Held : the provision does not affect the rights of the minor children of divorce Muslim parents to the grant of maintenance under section 125 Cr.P.C. The appellant married the respondent according to Muslim rites and 3 children were born to them, two daughters and one son. The respondent turned the appellant and the children out of the matrimonial home; the children were 6 years, 3 years and 1-1/2 years respectively. The respondent then took a second wife. The appellant, being unable to maintain herself and the children, filed an application under section 125 Cr.P.C. claiming a sum of Rs. 400 per month for herself and Rs. 300 for each of the three children. The trial court directed the respondent to pay main-tenance to the appellant at the rate of Rs. 200 per month, and Rs. 150 each for the three minor children till they attain the age of majority. Meanwhile the respondent divorced the appellant, and filed an application in the trial court seeking modification of order of the maintenance, in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986. The trial court modified the order as regards maintenance to her and held that she was entitled for maintenance only upto the period of Iddat; and retained the order as regards the grant of maintenance to the children. The trial court also observed that the right of maintenance under Section 125 Cr.P.C. was not affected by the 1986 Act in any manner. The respondent challenged the order by way of a revision petition. However in a petition u/s. 482 Cr.P.C., the High Court held that the divorced Muslim woman was entitled to claim maintenance for her minor children only for a period of 2 years from the date of birth of the child and that the minor children were not entitled to claim maintenance under Section 125 Cr.P.C. after the coming into force of the 1986 Act. Aggrieved, the wife filed the present appeal. =Allowing the appeal, this court HELD : 1.1. The High Court erred in holding that the right to claim maintenance of the children under Section 125 Cr.P.C. was taken away and superseded by section 3(l)(b) of the Muslim Women (Protection of Right on Divorce) Act 1986. The right of the children to claim maintenance under S. 125 Cr.P.C. till they attain majority or are able to maintain themselves in case of males and till they get married in case of females, is separate and there is nothing in the 1986 Act which affects the application of the provisions of Sections 125 to 128 of the Cr.P.C. relating to the grant of maintenance. The provisions of S. 125 Cr.P.C. and S. 3(l)(b) of the 1986 Act make it clear that the two provisions apply and cover different situa- tions and there is no conflict. [138-E-G; 136-F-H] 1.2. The right of minor children to receive maintenance from their father till they are able to maintain themselves is absolute, it would be unfair to deny benefit of S, 125 Cr.P.C. to the children only on the ground that they are born to Muslim parents. The effect of a beneficial legislation like 125 Cr.P.C. cannot be allowed to be defeated except through clear provisions of a statute. [135-E-G] “Statute law relating to Muslim in India” by prof. Tahir Mahamood, referred to 2. The non obstante clause “not withstanding anything contained in any other law for the time being in force”, occurring in S. 3(1) (b) of the 1986 Act, restricts and confines the rights of divorced Muslim woman to claim maintenance for herself and children till they attain the age of 2. [136-D-E] 3. Muslim father’s obligation to maintain his minor children like that a Hindu as contained in S. 125 Cr.P.C. is absolute and not affected by section 3(1)(b) of the 1986 Act. A Muslim father can claim custody of the children to maintain them but when custody has not been claimed by him, he cannot refuse and neglect to maintain his minor children on the ground that he has divorced their mother. [136-A-B] 4. The arrears of maintenance in respect of the children shall be paid by respondent to the appellant mother. The respondent shall continue to pay the maintenance as directed by the High Court, to the children till they attain majority or are able to maintain themselves and in case of daughter till they get married. [139-B-C] Mohd. Ahmed Khan v. Shah Bano Begum, AIR (1985) SC 945, Referred to. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1197 of 1995. =1997 AIR 3280, 1997( 3 )Suppl.SCR 129, 1997( 6 )SCC 233, 1997( 5 )SCALE248 , 1997( 7 )JT 104

PETITIONER: NOOR SABA KHATOON Vs. RESPONDENT: MOHD. QUASIM DATE OF JUDGMENT: 29/07/1997 BENCH: A. S. ANAND, K. VENKATASWAMI ACT: HEADNOTE:JUDGMENT: J U D G M E N T DR. ANAND. J, A short but interesting question involved in this appeal, by Special Leave, is whether the children of muslim parents are entitled to grant of … Continue reading

“7. Jurisdiction – 1) Subject to the other provisions of this Act, a Family Court shall — a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation: – The suit and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; b) A suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; c) A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; d) A suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; e) A suit or proceeding for a declaration as to the legitimacy of any person; f) A suit or proceeding for maintenance; g) A suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a family court shall also have and exercise – a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974) ; and b) Such other jurisdiction as may be conferred on it by any other enactment.” 3. Sub-Sections (1) & (2) of Section 7 of the Act deal with jurisdiction of the Family Court. It does not deal with rights and liabilities of the parties before the Family Court. Rights and liabilities of the parties depend on their personal laws well as civil and criminal laws applicable to them.

THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU C.R.P. No. 4569 of 2010 10-12-2010 Razia Begum D/o Mohd. Abbas, Aged about 30 years, Muslim, Occ: Nil R/o H.No. 17-5-144, Bibi ka Alawa, Dabeerpura Hyderabad. Mohd Iqbal S/o Mohd Abbas Aged about 56 years, Occ: Tailor R/o H.No. 17-5-124/1, Kali Masjid, Yakutpura, Hyderabad. Counsel for the petitioner: Sri … Continue reading

whether a marriage performed by a person professing the Muslim faith with his wife’s sister, while his earlier marriage with the other sister was still subsisting, would be void in law or merely irregular or voidable even though the subsequent marriage may have been consummated.

CASE NO.: Appeal (crl.) 488 of 2008 PETITIONER: Chand Patel RESPONDENT: Bismillah Begum & Anr DATE OF JUDGMENT: 14/03/2008 BENCH: Altamas Kabir & J.M.Panchal JUDGMENT: J U D G M E N T CRIMINAL APPEAL NO. 488 OF 2008 (@ Special Leave Petition(Crl.) No.3989 of 2006) ALTAMAS KABIR,J. 1. Leave granted. 2. The application for … Continue reading

The next contention is that respondent having not made any claim against her former husband is estopped from making a claim against petitioner, her second husband. I do not find any statutory provision or precedent to back that contention. May be, respondent could have made a claim against her former husband also in which case her re-marriage with petitioner would have been a relevant consideration in fixing the amount payable as future maintenance. But in the present proceeding claim is for expenses during the period of iddat following petitioner divorcing the respondent and for her future maintenance. No claim prior to her marriage with the petitioner is involved. Contention that respondent having failed to make a claim against her former husband is estopped from establishing her claims against the petitioner has no legal backing. It has to fail.

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 26 of 2011() 1. P.ABDURAHIMAN, … Petitioner Vs 1. U.K.P.KHADEEJA, … Respondent 2. STATE OF KERALA, For Petitioner :SRI.C.KHALID For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice THOMAS P.JOSEPH Dated :28/01/2011 O R D E R THOMAS P. JOSEPH, J. ————————————– Crl.M.C. No.26 of 2011 ————————————– … Continue reading

In the decision of the Hon’ble Supreme Court in Samar Ghosh v. Jaya Ghosh, [(2007) 4 SCC 511], at paragraph No.101, some instances of human behaviour, which may be relevant in dealing with the case of mental cruelty have been enumerated and the relevant paragraph runs as follows: “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of The term ‘Cruelty’ mentioned in Clause (i-a) denotes and includes both physical and mental cruelty. It is be noted that a Hindu Marriage Act, 1955 is silent as regards the nature or degree of cruelty which needs to be established any matrimonial case as per the decision Poonam Mehta alias Poonam Prasad V. Naresh Prasad, [AIR 2009 (N.O.C.) 505 (Orissa)]. If the cruelty is physical, it is an aspect of degree which is essential. However, if it is mental, an enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the other party whether it caused reasonable apprehension that it would be injurious or harmful to live with the other party. Finally, it is matter of inference to be deduced by taking into account the nature of the conduct and its effect on the complaining spouse.

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:29.08.2011 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.M.A.Nos.3769 and 1775 of 2010 and M.P.Nos.1 and 2 of 2011 in C.M.A.No.1775 of 2010 R.Natarajan … Appellant in both CMAs Vs. Sujatha Vasudevan … Respondent in both CMAs Prayer: Appeals filed … Continue reading

whether re-marriage of a widow prior to Hindu Succession Act, 1956 would divest her of even the limited ownership of her deceased husband’s property, having due regard to the provisions of Section 2 of Hindu Widow’s Re-marriage Act, 1856 (hereinafter referred to as `the Act of 1856′); and secondly, whether disqualification of inheritance, if any, by reason of re-marriage would stand obliterated by reason of the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949. Incidentally, Section 24 of the Succession Act of 1956 placed certain restrictions on certain specified widows in the event of there being a remarriage: while it is true that Section speaks of a pre-deceased son or son of a pre-deceased son but this in our view is a reflection of the Shastric law on to the statute. The Act of 1956 in terms of Section 8 permits the widow of a male Hindu to inherit simultaneously with the son, daughter and other heirs specified in class I of the Schedule. As a matter of fact she takes her share absolutely and not the widow’s estate only in terms of Section 14. Re-marriage of a widow stands legalised by reason of the incorporation of Act of 1956 but on her re-marriage she forfeits the right to obtain any benefit from out of her deceased husband’s estate and Section 2 of the Act of 1856 as noticed above is very specific that the estate in that event would pass on the next heir of her deceased husband as if she were dead. Incidentally, the act of 1856 does not stand abrogated or repealed by the Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands repealed. As such the Act of 1856 had its fullest application in the contextual facts in 1956 when Section 14 (1) of the Hindu Succession Act was relied upon by Defendant No. 1.

CASE NO.: Appeal (civil) 425 of 1982 PETITIONER: VELAMURI VENKATA SIVAPRASAD (DEAD) BY L.RS. RESPONDENT: KOTHURI VENKATESWARLU (DEAD) BY L.RS. AND ORS. DATE OF JUDGMENT: 24/11/1999 BENCH: S.B. MAJMUDAR & M. SRINIVASAN & UMESH C. BANERJEE JUDGMENT: JUDGMENT 1999 Supp(4) SCR 522 The Judgment of the Court was delivered by BANERJEE, J. Two specific questions … Continue reading

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