Tuesday 16 August 2016

Whether muslim woman is entitled to get maintenance till she gets remarried?

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. “
21. In this background, what is required to be noted is that
even if the parties are governed by Mohammedan Law and
provisions of Divorce Act are applicable, still the maintenance is not
required to be confined only to iddat period but till the said lady gets
remarried.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
 CRIMINAL WRIT PETITION NO. 544 OF 2003
 Rehana Sultana Begum
w/o Hashmi Syed Mujib,

 VERSUS

Hashmi Syed Mujib s/o Hashmi Syed
Yakub, 
 CORAM : N.W. SAMBRE, J.

 PRONOUNCED ON: 11/08/2016



Present petition is by wife and daughter seeking
maintenance under Section 125 of the Code of Criminal Procedure,
as their attempt to get maintenance through the proceedings
initiated before learned Magistrate has resulted into denial of the
same, however, the request for grant of maintenance came to be
allowed to the extent of Rs.3000/- per month for petitioner No. 2
daughter Sayeeda.
2. The petitioner-mother and daughter, both preferred a
revision before the learned Additional Sessions Judge, Udgir, Camp
at Ahmedpur, which came to be dismissed.
3. The facts as are necessary for deciding the present writ
petition are as under :-
The petitioner No. 1 Rehana got married to respondent
Hashmi on 15/05/1996 at Udgir and out of the said wedlock,
daughter Sayeeda came to be born.

4. As the respondent-husband doubted the chastity of
petitioner No. 1-wife and it is claimed by the petitioner-wife that there
was demand of dowry. It is further claimed that as there was threat
to kill petitioner No.1-wife by the respondent-husband and tried to
burn her by putting her on fire and as she was assaulted on
04/06/1990. It is further claimed that as she is unable to maintain
herself, she moved the application before learned Magistrate
claiming maintenance.
5. In the application filed under Section 125 of the Code of
Criminal Procedure, it is claimed that respondent-husband is skilled
welder and is earning Rs. 1000/- per day. It is then claimed that
appropriate maintenance be paid to the petitioners.
6. The claim was resisted by the respondent-husband by
admiring the marriage and birth of daughter. The respondent has
come out with the case that divorce by notice is claimed to have
been served on the petitioner-wife on 20/02/1999.
7. In support of the claim for maintenance, petitioner No.1

Rehana examined herself at Exhibit-8, her uncle Chisti Md. Khaja
Karoddin Ahmed Ali at Exhibit-29, whereas respondent-husband has
examined himself at Exhibit-32 and his father Sayyad Yakub Sayyed
Shamshoddin at Exhibit-34.
8. After considering rival claim of the parties and evidence
as is brought brought on record, learned Magistrate noted that the
parties to the proceedings are Muslims by religion and as such, in
view of provisions of Muslim Women (Protection of Rights on
Divorce) Act, 1986 (hereinafter shall be referred to 'Divorce Act'),
rejected the claim of petitioner No.1-wife, whereas allowed to the
extent of claim of the daughter @ Rs.300/- per month. Learned
Magistrate directed the respondent-husband to pay maintenance @
Rs.500/- per month to petitioner No.1-wife for the Iddat period i.e.
three months and rejected the claim for future maintenance.
9. The revision against the above referred order dated
11/02/2002 being Criminal Revision No. 23 of 2002 came to be
dismissed by learned Additional Sessions Judge, Udgir, by an order
23/09/2003.
10. Heard Mr. Sakolkar, learned Counsel for the petitioners

and Ms. A.N. Ansari, learned Counsel for the respondent.
11. Mr. Sakolkar, learned Counsel for the petitioners would
submit that even if presuming that Divorce Act is available to the
parties, still the Apex Court has already decided the said issue by
observing that the muslim woman is entitled for maintenance. He
would rely upon the observations made by the Apex Court in the
matter of Danial Latifi and another vs. Union of India reported in
(2001) 7 SCC 740. He would invite my attention to the observations
made in paragraphs-34 and 35 of the said judgment, which reads
thus :
“34. The learned counsel appearing for the Muslim
organisations contended after referring to various
passages from the text books 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 Bano case.
Shah Bano 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 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 Bano case in relation to a
divorced Muslim woman getting something by way of
maintenance in the nature of Mata is indeed 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 Bano case. Therefore,
we are of the view that the contentions advanced on behalf
of the parties to the contrary cannot be sustained.
35 In Arab Ahemadhia Abdulla vs. Arab Bail Mohmuna

Saiyadbhai AIR 1988 (Guj.) 141, Ali v. Sufaira, (1988) 3
Crimes 147 (Ker), K. Kunhammed Hazi v. Amina, 1995
Crl.L.J. 3371 (Ker), K. Zunaideen v. Ameena Begum,
(1998] II DMC 468 (Mad), Karim Abdul Rehman Shaik v.
Shenaz Karim Shaik, 2000 Cr.L.J. 3560 (Bom) (FB) and
Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh,
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 the 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 a 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., (1998) 2
DMC 85 (P&H) (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 relatives or the
Wakf Board, by majority decision in Usman Khan
Bahamani v. Fathimunnisa Begum, 1990 Cr.L.J. 1364;
Abdul Rashid v. Sultana Begum, 1992 Cr.L.J. 76 (Cal);
Abdul Haq v. Yasmin Talat; 1998 Cr.L.J. 3433 (MP) and
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.”
12. In addition, Mr. Sakolkar, learned Counsel for the
petitioners would urge that unless divorce is proved, which burden
on the present respondent-husband, the Courts below have
committed error in refusing the maintenance. He would then invite
my attention to the Full Bench judgment of this Court in the matter of
Dadgu Chotu Pathan vs. Rahimbi Dagdu Pathan and others
reported in 2002(3) Mh.L.J. 602 so as to canvass that not merely
the factum of Talaq but the conditions which were required to be
followed preceding to the stage of giving Talaq are also required to

be proved. He then takes me through the evidence of the respective
parties so as to draw an inference that there was no Talaq and the
petitioner-wife was very entitled for the maintenance.
13. Per contra, Ms. Ansari, learned Counsel for the
respondent-husband would invite my attention to the provisions of
Sections 3 and 4 of the Divorce Act. According to her, once notice of
Talq was served on the petitioner-wife through Registered Post A.D.
and same was established, learned Court below has rightly
considered the factum of valid Talaq and has rightly ordered
maintenance pursuant to the provisions of Section 4 of the Divorce
Act. She would then submit that the proceedings were initiated on
22/09/1999 and Talaq was given on 20/02/1999, as such, before the
verdict, there was valid Talaq and as such, present petition deserves
rejection.
14. While dwelling upon the submissions made, I have
perused the order passed by learned Magistrate, wherein he has
framed the point as regards whether there exists on the date of
passing of the order the relationship of husband and wife in between
the parties and has answered the same in the negative. He has

framed another issue as regards neglect and refusal on the part of
respondent-husband to maintain the petitioners and answered the
same in favour of the petitioners.
15. While dealing with the point No.1, it is required to be
noted that learned Magistrate has accepted straight-way the
contention of the respondent-husband that he has given Talaq to the
petitioner-wife before 20/02/1999 as a gospel truth without being any
sufficient evidence on record to that effect. It is then without looking
into pleadings and the evidence, learned Magistrate has recorded
findings that there not exists relationship between petitioner No.1-
wife and respondent-husband.
16. The revisional Court, while dealing with the said issue,
particularly as regards Talaq between the parties, has answered the
same against petitioner-wife, as Talaq was proved. Learned
revisional Court, rather while framing the issue, has cast burden on
the petitioner to prove that there was Talaq, which was never a case
of present petitioner. The present petitioner, rather has come out
with a case that there was refusal and neglect to maintain and as
such, she was entitled for maintenance. Learned Sessions Judge in

paragraph-15 of the judgment has made observations that as
husband has categorically stated that he has given divorce to his
wife i.e. petitioner No.1, she is not entitled to claim maintenance. In
support thereof, the document that was placed on record is in the
form of postal envelope alongwith endorsement of postman.
17. It is to be noted that Full Bench judgment of this Court
had an occasion to deal with the issue of plea of divorce and
effectiveness of Talaq in the judgment of Dadgu Chotu Pathan
(supra). While dealing with the issue as regards Talaq by a
husband, this Court has noted that same must be for a reasonable
cause and should be preceded by attempt of reconciliation between
the husband and wife by Arbitrators. Full Bench Judgment then has
held that while proving valid Talaq, not merely the factum of Talaq
but the conditions preceding to the stage of giving Talaq are also
required to be proved. Paragraph-22 and 26 of the said judgment, in
my opinion, are worth referring to, which reads thus :
“22. A divorce by the husband is Talaq and it has its oral as
well as written forms. The oral form of Talaq can be
effected in three modes viz. Talaq-e-Ahsan, Talaq-e-Hasan,

Talaq-ul-Biddat or Talaq-e-Badai. The first two forms are
conditioned and they are accepted to be more civilized but
while resorting to any of these two forms there are
conditions precedent and it is not that the husband is at his
free will to resort to any of these modes at any time and
without assigning any reasons. If the husband feels that his
wife does not care for him, she is incompatible, she does
not listen to him, she does not love him, she refuses to
cohabit with him, she engages in cruel behaviour, she is
unfaithful or for any other reason, he has the right to give
Talaq to his wife but by following certain procedure. Firstly,
he has to make it known to his wife about any of these
reasons and she must be given time to change her
behaviour. If by his direct conversation/ persuasions she
does not change her behaviour, the husband has to resort
to the process of conciliation by informing to her father or
any other parental relations. Two arbitrators, one from wife
and one from the husband, are required to be appointed
and it shall be the duty of the Arbiters to bring in a
settlement between the parties so that they live together
happily and inspite of these efforts having been made if the
discord still persists to an irreparable level there is no
alternative but to separate and it is at this stage that the
husband has the right to give Talaq to his wife. The stage of
conciliation with the intervention of the arbiters is a
condition precedent for effecting Talaq either in Ahsan form
or Hasan form.

It will be seen that in all disputes between the
husband and the wife the judges are to be appointed from
the respective people of the two parties. These judges are
required first to try to reconciliate the parties to each other
failing which divorce is to be effected. Therefore, though it
is the husband, who pronounces the divorce, he is as much
bound by the decision of the judges as is the wife. This
shows that the husband cannot repudiate the marriage at
his will. The case must be first referred to two judges and
their decision is binding. Talaq must be for reasonable
cause and be preceded by attempts at reconciliation
between the husband and the wife by the arbitrators, one
from the wives family and the other from the husbands. If
the attempts failed, Talaq may be effected. In other words,
an attempt at reconciliation by two relations, one each of
the parties, is an essential condition precedent to Talaq.
26. The above discussion does indicate that mere
pronouncement of Talaq by the husband or merely
declaring his intentions or his acts of having pronounced
the Talaq is not sufficient and does not meet the
requirements of law. In every such exercise of right to Talaq
the husband is required to satisfy the preconditions of
arbitration for reconciliation and reasons for Talaq.
Conveying his intentions to divorce the wife are not
adequate to meet the requirements of Talaq in the eyes of

law. All the stages of conveying the reasons for divorce,
appointment of arbiters, the arbiters resorting to conciliation
proceedings so as to bring reconciliation between the
parties and the failure of such proceedings or a situation
where it was impossible for the marriage to continue, are
required to be proved as condition precedent for the
husbands right to give Talaq to his wife. It is, thus, not
merely the factum of Talaq but the conditions preceding to
this stage of giving Talaq are also required to be proved
when the wife disputes the factum of Talaq or the
effectiveness of Talaq or the legality of Talaq before a Court
of law. Mere statement made in writing before the Court, in
any form, or in oral depositions regarding the Talaq having
been pronounced sometimes in the past is not sufficient to
hold that the husband has divorced his wife and such a
divorce is in keeping with the dictates of Islam.
It is a fallacious argument that in case of a minor or a
woman past menopause, the oral Talaq in the form of
Ahsan or Hasan could be pronounced by the husband at
any time or at his sweet will as in such cases there is no
Iddat. However, the period of Iddat has been specifically
defined and even in such cases there is a waiting period of
three lunar months even though there is no occurrence of
menstruation. The view taken by this Court in the case of
Chandbi Ex W/o Bandeshah Mujawar (supra) cannot be
accepted as a good law.”

18. Once it is noted by this Court from available evidence
on record that it is the respondent-husband, who has come out with
a plea of Talaq in his defence while responding to the prayer for
grant of maintenance and wife in her claim for maintenance has
come out with a plea that their relationship as husband and wife still
exists (there was no Talaq), the burden shifts on the respondenthusband
to prove that there was valid Talaq. The respondenthusband,
in the present case, has hardly placed any material on
record but for a some envelope stating that there was valid Talaq.
The perusal of evidence of the respondent, who is examined at
Exhibit-33, depicts that he claimed that he has uttered word 'Talaq'
for three times in presence of four witnesses at the parental house of
the petitioner and as such, there is valid Talaq. If the entire evidence
of the respondent and his witnesses if analyzed, the same does not
stand to the scrutiny as is provided in the Full Bench judgment of
this Court in the matter of Dadgu Chotu Pathan (supra) in the light
of the observations made herein above.
19. In view of above, in my opinion, both the Courts below
have committed an error by shifting the burden of proving Talaq on

petitioner No.1. Learned Magistrate has committed an error by
recording the findings that there was Talaq, whereas learned
Sessions Judge, in revision, has recorded incorrect findings that the
petitioner-wife has failed to prove Talaq though it was never such a
plea of the petitioner-wife, but was defence set up by the
respondent-husband.
20. Once it is held that there was valid Talaq, it is required
to be noted that the provisions of Divorce Act has hardly any
applicability to the present case. In the judgment of Danial Latifi and
another (supra) delivered by the Apex Court, the Apex Court has
already held that divorced woman is entitled for maintenance, which
should not be confined only for iddat period. Paragraphs-33, 34, 35
and 36 of the said judgment are worth referring to, which reads
thus :
“33. 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. “
21. In this background, what is required to be noted is that
even if the parties are governed by Mohammedan Law and
provisions of Divorce Act are applicable, still the maintenance is not
required to be confined only to iddat period but till the said lady gets
remarried.
22. So far as the case in hand is concerned, once having
held that in the light of Full Bench judgment of this Court in the case
of Dagdu Chotu Pathan (supra), if the divorce in between the
petitioner-wife and respondent-husband was not proved, the
question of applicability of the provisions of Divorce Act is required to
be negated. As such, in view of above, in my opinion, the present
petitioner-wife is entitled for maintenance from the respondenthusband
from the date of filing of the application before learned

Magistrate i.e. 22/09/1989.
23. In this background, I propose to pass following order :-
: O R D E R :
(I) Petitioner No.1-Rehana Sultana Begum w/o Hashmi
Syed Mujib is entitled for maintenance of Rs.1000/- (Rs. One
thousand) per month from the date of filing of the application i.e.
22/09/1989.
(ii) Petitioner No.1 is at liberty to move the appropriate
Court for modification i.e. enhancement under Section 127 of the
Code of Criminal Procedure, as the order of deciding the application
of maintenance and proceedings were initiated and pending since
1989.
24. With above observations, present criminal writ petition
stands allowed in above terms.
 [ N.W. SAMBRE, J.]

Print Page

No comments:

Post a Comment