Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.820 OF 2014

(Arising out of S.L.P. (Criminal) No. 4377 of 2012)

Shamim Bano Appellant

Versus

Asraf Khan Respondent

JUDGMENT

Dipak Misra, J.

Leave granted.

2. The appellant, Shamim Bano, and the respondent, Asraf

Khan, were married on 17.11.1993 according to the

Muslim Shariyat law. As the appellant was meted with

cruelty and torture by the husband and his family

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members regarding demand of dowry, she was compelled

to lodge a report at the Mahila Thana, Durg, on 6.9.1994,

on the basis of which a criminal case under Section 498-A

read with Section 34 IPC was initiated and, eventually, it

was tried by the learned Magistrate at Rajnandgaon who

acquitted the accused persons of the said charges.

3. Be it noted, during the pendency of the criminal case

under Section 498-A/34 IPC before the trial court, the

appellant filed an application under Section 125 of the

Code of Criminal Procedure (for short the Code) in the

Court of Judicial Magistrate First Class, Durg for grant of

maintenance on the ground of desertion and cruelty.

While the application for grant of maintenance was

pending, divorce between the appellant and the

respondent took place on 5.5.1997. At that juncture, the

appellant filed Criminal Case No. 56 of 1997 under Section

3 of the Muslim Women (Protection of Rights on Divorce)

Act, 1986 (for brevity the Act) before the learned Judicial

Magistrate First Class, Durg. The learned Magistrate, who

was hearing the application preferred under Section 125

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of the Code, dismissed the same on 14.7.1999 on the

ground that the appellant had not been able to prove

cruelty and had been living separately and hence, she was

not entitled to get the benefit of maintenance. The

learned Magistrate, while dealing with the application

preferred under Section 3 of the Act, allowed the

application directing the husband and others to pay a sum

of Rs.11,786/- towards mahr, return of goods and

ornaments and a sum of Rs.1,750/- towards maintenance

during the Iddat period.

4. Being grieved by the order not granting maintenance, the

appellant filed Criminal Revision No. 275 of 1999 and the

revisional court concurred with the view expressed by the

learned Magistrate and upheld the order of dismissal. The

aforesaid situation constrained the appellant to invoke the

jurisdiction of the High Court under Section 482 of the

code in Misc. Crl. Case No. 188 of 2005. Before the High

Court a preliminary objection was raised on behalf of the

respondent-husband that the petition under Section 125

of the Code was not maintainable by a divorced woman

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without complying with the provisions contained in

Section 5 of the Act. It was further put forth that initial

action under Section 125 of the Code by the appellant-

wife was tenable but the same deserved to be thrown

overboard after she had filed an application under Section

3 of the Act for return of gifts and properties, for payment

of mahr and also for grant of maintenance during the

Iddat period. It was also urged that the wife was only

entitled to maintenance during the Iddat period and the

same having been granted in the application, which was

filed after the divorce, grant of any maintenance did not

arise in exercise of power under Section 125 of the Code.

Quite apart from the above, both the parties also had

advanced certain contentions with regard to obtaining

factual score.

5. The High Court, after referring to certain authorities, came

to hold that a Muslim woman is entitled to claim

maintenance under Section 125 of the Code even beyond

the period of Iddat if she was unable to maintain herself;

that where an application under Section 3 of the Act had

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already been moved, the applicability of the provisions

contained in Sections 125 to 128 of the Code in the matter

of claim of maintenance would depend upon exercise of

statutory option by the divorced woman and her former

husband by way of declaration either in the form of

affidavit or in any other declaration in writing in such

format as has been provided either jointly or separately

that they would be preferred to be governed by the

provisions of the Code; that the applicability of Sections

125 to 128 of the Code would depend upon exercise of

statutory option available to parties under Section 5 of the

Act and as the appellant-wife had taken recourse to the

provisions contained in the Act, it was to be concluded

that she was to be governed by the provisions of the Act;

that the claim of the appellant under Section 125 of the

Code until she was divorced would be maintainable but

after the divorce on filing of an application under Section

3 of the Act, the claim of maintenance, in the absence of

exercise of option under Section 5 of the Act to be

governed by Section 125 of the Code, was to be governed

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by the provisions contained in the Act; that as the

application under Section 3 of the Act having already been

dealt with by the learned Magistrate and allowed and

affirmed by the High Court under Section 482 of the Code,

the claim of the appellant for grant of maintenance had to

be confined only to the period before her divorce; and that

the courts below had rightly concluded that the wife was

not entitled to maintenance as she had not been able to

make out a case for grant of maintenance under Section

125 of the Code; and further that the said orders deserved

affirmation as interim maintenance was granted during

the pendency of the proceeding upto the date of divorce.

Being of this view, the High Court declined to interfere

with the orders of the courts below in exercise of inherent

jurisdiction.

6. We have heard Mr. Fakhruddin, learned senior counsel

appearing for the appellant, and Mr. Kaustubh Anshuraj,

learned counsel appearing for the respondent.

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7. The two seminal issues that emanate for consideration

are, first, whether the appellants application for grant of

maintenance under Section 125 of the Code is to be

restricted to the date of divorce and, as an ancillary to it,

because of filing of an application under Section 3 of the

Act after the divorce for grant of mahr and return of gifts

would disentitle the appellant to sustain the application

under Section 125 of the Code; and second, whether

regard being had to the present fact situation, as

observed by the High Court, the consent under Section 5

of the Act was an imperative to maintain the application.

8. To appreciate the central controversy, it is necessary to

sit in a time machine for apt recapitulation. In Mohd.

Ahmed Khan v. Shah Bano Begum and others1,

entertaining an application under Section 125 of the Code,

the learned Magistrate had granted monthly maintenance

for a particular sum which was enhanced by the High

Court in exercise of revisional jurisdiction. The core issue

before the Constitution Bench was whether a Muslim

1
(1985) 2 SCC 556

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divorced woman was entitled to grant of maintenance

under Section 125 of the Code. Answering the said issue,

after referring to number of texts and principles of

Mohammedan Law, the larger Bench opined that taking

the language of the statute, as one finds it, there is no

escape from the conclusion that a divorced Muslim wife is

entitled to apply for maintenance under Section 125 of the

Code and that mahr is not such a quantum which can ipso

facto absolve the husband of the liability under the Code,

and would not bring him under Section 127(3)(b) of the

Code.

9. After the aforesaid decision was rendered, the Parliament

enacted the Act. The constitutional validity of the said Act

was assailed in Danial Latifi and another v. Union of

India2 wherein the Constitution bench referred to the

Statement of Objects and Reasons of the Act, took note of

the true position of the ratio laid down in Shah Banos

case and after adverting to many a facet upheld the

constitutional validity of the Act. While interpreting

2
(2001) 7 SCC 740

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Sections 3 and 4 of the Act, the Court came to hold that

the intention of the Parliament is 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. Thereafter,

the Court proceeded to state thus: -

In other words, at the time of divorce the Muslim

husband is required to contemplate the future
needs and make preparatory arrangements in
advance for meeting those needs. Reasonable and
fair provision may include provision for her
residence, her food, her clothes, and other articles.
The expression within should be read as
during or for and this cannot be done because
words cannot be construed contrary to their
meaning as the word within would mean on or
before, not beyond and, therefore, it was held
that the Act would mean that on or before the
expiration of the iddat period, the husband is
bound to make and pay maintenance to the wife
and if he fails to do so then the wife is entitled to
recover it by filing an application before the
Magistrate as provided in Section 3(3) but
nowhere has Parliament provided that reasonable
and fair provision and maintenance is limited only
for the iddat period and not beyond it. It would
extend to the whole life of the divorced wife unless
she gets married for a second time.

10. In the said case the Constitution Bench observed that in

actuality the Act has codified the rationale contained in

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Shah Banos case. While interpreting Section 3 of the

Act, it was observed that the said provision provides that

a divorced woman is entitled to obtain from her former

husband maintenance, provision and mahr, and to

recover from his possession her wedding presents and

dowry and authorizes the Magistrate to order payment or

restoration of these sums or properties and further

indicates 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 Court further observed that 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, and 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

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his wife, in addition to having paid his wifes mahr and

restored her dowry as per Sections 3(1)(c) and 3(1)(d) of

the Act. Thereafter the larger Bench opined thus:-

30. 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 are
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.

31. Even under the Act, the parties agree 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.

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11. Eventually the larger Bench concluded that 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 and 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 of the Act; that liability of a Muslim husband to

his divorced wife arising under Section 3 of the Act to pay

maintenance is not confined to the iddat period; and that

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 and 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.

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12. At this Juncture, it is profitable to refer to another

Constitution Bench decision in Khatoon Nisa v. State of

U.P. and Ors.,3 wherein question arose whether a

Magistrate is entitled to invoke his jurisdiction under

Section 125 of the Code to grant maintenance in favour of

a divorced Muslim woman. Dealing with the said issue the

Court ruled that subsequent to the enactment of the Act

as it was considered that the jurisdiction of the Magistrate

under Section 125 of the Code can be invoked only when

the conditions precedent mentioned in Section 5 of the

Act are complied with. The Court noticed that in the said

case the Magistrate had returned a finding that there

having been no divorce in the eye of law, he had the

jurisdiction to grant maintenance under Section 125 of the

Code. The said finding of the magistrate had been upheld

by the High Court. The Constitution Bench, in that

context, ruled thus:

The validity of the provisions of the Act was for

consideration before the constitution bench in the
case of Danial Latifi and Anr. v. Union of India. In

3
2002 (6) SCALE 165

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the said case by reading down the provisions of

the Act, the validity of the Act has been upheld
and it has been observed that under the Act itself
when parties agree, the provisions of
Section 125 Cr.P.C. could be invoked as contained
in Section 5 of the Act and even otherwise, the
magistrate under the Act has the power to grant
maintenance in favour of a divorced woman, and
the parameters and considerations are the same
as those in Section 125 Cr.P.C.. It is undoubtedly
true that in the case in hand, Section 5 of the Act
has not been invoked. Necessarily, therefore, the
magistrate has exercised his jurisdiction under
Section 125 Cr.P.C. But, since the magistrate
retains the power of granting maintenance in view
of the constitution bench decision in Danial Latifi's
case (supra) under the Act and since the
parameters for exercise of that power are the
same as those contained in Section 125 Cr.P.C.,
we see no ground to interfere with the orders of
the magistrate granting maintenance in favour of
a divorced Muslim woman.

13. The aforesaid principle clearly lays down that even an

application has been filed under the provisions of the Act,

the Magistrate under the Act has the power to grant

maintenance in favour of a divorced Muslim woman and

the parameters and the considerations are the same as

stipulated in Section 125 of the Code. We may note that

while taking note of the factual score to the effect that the

plea of divorce was not accepted by the Magistrate which

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was upheld by the High Court, the Constitution Bench

opined that as the Magistrate could exercise power under

Section 125 of the Code for grant of maintenance in

favour of a divorced Muslim woman under the Act, the

order did not warrant any interference. Thus, the

emphasis was laid on the retention of the power by the

Magistrate under Section 125 of the Code and the effect

of ultimate consequence.

14. Slightly recently, in Shabana Bano v. Imran Khan4, a

two-Judge Bench, placing reliance on Danial Latifi

(supra), has ruled that: -

The appellants petition under Section 125 CrPC

would be maintainable before the Family Court as
long as the appellant does not remarry. The
amount of maintenance to be awarded under
Section 125 CrPC cannot be restricted for the
iddat period only.

Though the aforesaid decision was rendered

interpreting Section 7 of the Family Courts Act, 1984, yet the

principle stated therein would be applicable, for the same is

4
(2010) 1 SCC 666

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in consonance with the principle stated by the Constitution

Bench in Khatoon Nisa (supra).

15. Coming to the case at hand, it is found that the High

Court has held that as the appellant had already taken

recourse to Section 3 of the Act after divorce took place

and obtained relief which has been upheld by the High

Court, the application for grant of maintenance under

Section 125 of the Code would only be maintainable till

she was divorced. It may be noted here that during the

pendency of her application under Section 125 of the

Code the divorce took place. The wife preferred an

application under Section 3 of the Act for grant of mahr

and return of articles. The learned Magistrate, as is seen,

directed for return of the articles, payment of quantum of

mahr and also thought it appropriate to grant

maintenance for the Iddat period. Thus, in effect, no

maintenance had been granted to the wife beyond the

Iddat period by the learned Magistrate as the petition was

different. We are disposed to think so as the said

application, which has been brought on record, was not

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filed for grant of maintenance. That apart, the

authoritative interpretation in Danial Latifi (supra) was

not available. In any case, it would be travesty of justice if

the appellant would be made remediless. Her application

under Section 125 of the Code was continuing. The

husband contested the same on merits without raising the

plea of absence of consent. Even if an application under

Section 3 of the Act for grant of maintenance was filed,

the parameters of Section 125 of the Code would have

been made applicable. Quite apart from that, the

application for grant of maintenance was filed prior to the

date of divorce and hearing of the application continued.

16. Another aspect which has to be kept uppermost in mind

is that when the marriage breaks up, a woman suffers

from emotional fractures, fragmentation of sentiments,

loss of economic and social security and, in certain cases,

inadequate requisites for survival. A marriage is

fundamentally a unique bond between two parties. When

it perishes like a mushroom, the dignity of the female

fame gets corroded. It is the laws duty to recompense,

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and the primary obligation is that of the husband.

Needless to emphasise, the entitlement and the

necessitous provisions have to be made in accordance

with the parameters of law.

17. Under these circumstances, regard being had to the

dictum in Khatoon Nisas case, seeking of option would

not make any difference. The High Court is not correct in

opining that when the appellant-wife filed application

under Section 3 of the Act, she exercised her option. As

the Magistrate still retains the power of granting

maintenance under Section 125 of the Code to a divorced

Muslim woman and the proceeding was continuing without

any objection and the ultimate result would be the same,

there was no justification on the part of the High Court to

hold that the proceeding after the divorce took place was

not maintainable.

18. It is noticed that the High Court has been principally

guided by the issue of maintainability and affirmed the

findings. Ordinarily, we would have thought of remanding

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the matter to the High Court for reconsideration from all

spectrums but we think it appropriate that the matter

should be heard and dealt with by the Magistrate so that

parties can lead further evidence. Be it clarified, if, in the

meantime, the appellant has remarried, the same has to

be taken into consideration, as has been stated in the

aforestated authorities for grant of maintenance. It would

be open to the appellant-wife to file a fresh application for

grant of interim maintenance, if so advised. Be it clarified,

we have not expressed anything on the merits of the

case.

19. In the result, the appeal is allowed and the impugned

orders are set aside and the matter is remitted to the

learned Magistrate for re-adjudication of the controversy

in question keeping in view the principles stated

hereinabove.

J.
[Dipak Misra]

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J.
[Vikramajit Sen]
New Delhi;
April 16, 2014.

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