Full Judgment Text
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PETITIONER:
THE SECRETARY, TAMIL NADU WAKF BOARD AND ANOTHER
Vs.
RESPONDENT:
SYED FATIMA NACHI
DATE OF JUDGMENT: 09/07/1996
BENCH:
M.M. PUNCHHI, SUJATA V. MANOHAR
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Punchhi, J.
Special leave granted.
The Secretary of the Tamil Nadu Wakf Board, Madras, and
the Superintendent of Wakfs. Tirunelveli, the Appellants
herein, are aggrieved against an order of the High Court of
Madras, dated 16.3.1994 in Crl. O.P. No. 3557/93 declining
to interfere and quash a proceeding in M.C. No.11/92 pending
on the file of the Court of the Judicial Magistrate,
Tiruchendur, in which the respondent - Syed Fatima Nachi -
is claiming maintenance as the applicant.
The respondent is a Muslim divorced wife. She filed a
petition against the appellants under Section 4(2) of the
Muslim Women (Protection of Rights on Divorce) Act, 1986
(for short ’the Act’) seeking maintenance at the rate of Rs.
750/- per mensem. The petition was founded on the facts
that she was married to one Syed Ahmed Moulana on 10.6.1980
in accordance with the tenets of Muslim Law and out of the
wedlock, she had procreated female twins on 6.4.1981. Her
husband divorced her on 12.6.1986 and since then she has not
remarried. Claiming that the respondent had no income or
means to maintain herself, as well as her minor female
children, none of them owning any property, she was, thus,
unable to maintain herself and required intervention of the
Court in providing her a suitable sum for maintenance. She
claimed that she had earlier been leading a good life as a
married woman but after divorce, was in dire straits and in
suffering. She claimed that under the Mohammedan Law, a
Muslim woman, in such circumstances, can get maintenance
from her prospective heirs. According to her, a host of
relatives as given in the Act as well as under the
Mohammedan Law are responsible to provide maintenance to her
and if those are unable to do so, the claim of maintenance
must be met by the Wakf Board. it was also maintained that
neither her prospective heirs not her parents were in a
position to provide maintenance to her and thus there lay a
bounden duty on the Wakf Board to that effect; hence claim
of Rs. 750/- per mensem.
Instead of facing the petition on merit to its logical
end, the appellants, who were the only respondents in that
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petition, moved the High Court of Madras praying for
quashing of proceedings in exercise of its diverse powers
under the Code of Criminal Procedure, but the High Court
declined to do so. They have, in turn, approached this
Court for the same purpose, basing their claim on the same
grounds as before the High Court.
The Parliament enacted the act to undo the effect of a
Constitution Bench decision of this Court in Mohd. Ahmad
Khan v. Shah bano Begam (1985 2 SCC 556) because the said
decision was strongly opposed to by a sizeable section of
the Muslim Community. The Act as Preamble suggests, came
to protect the rights of Muslim women who have been divorced
by, or obtained divorce from, their husbands and to provide
for matters connected therewith or incidental thereto. The
brief text of the Act embodies the all important Section 4
whereunder orders can be made for payment of maintenance.
The said provision is reproduced hereunder:
"4. Order for payment of
maintenance.-
(1) Notwithstanding anything
contained in the foregoing
provisions of this Act or in any
other law for the time being in
force, where a Magistrate is
satisfied that a divorced woman has
not re-married and is not able to
maintain herself after the iddat
period, he may make an order
directing such of her relatives as
would be entitled to inherit her
property on her death according to
Muslim law to pay such reasonable
and fair maintenance to her as he
may determine fit and proper,
having regard to the needs of the
divorced woman, the standard of
life enjoyed by her during her
marriage and the means of such
relatives and such maintenance
shall be payable by such relatives
in the proportions in which they
would inherit her property and at
such periods as he may specify in
his order :
Provided that where such divorced
woman has children, the Magistrate
shall order only such children to
pay maintenance to her, and in the
event of any such children being
unable to pay such maintenance, the
Magistrate shall order the parents
of such divorced woman to pay
maintenance to her;
Provided further that if any of the
parents is unable to pay his or her
share of the maintenance ordered by
the Magistrate on the ground of his
or her not having the means to pay
the same, the Magistrate may, on
proof of such inability being
furnished to him, order that the
share of such relatives in the
maintenance ordered by him be paid
by such of the other relatives as
may appear to the Magistrate to
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have the means of paying the same
in such proportions as the
Magistrate may think fit to order.
(2) Where a divorced woman is
unable to maintain herself and she
has no relatives as mentioned in
sub-section (1) or such relatives
or any one of them have not enough
means to pay the maintenance
ordered by the Magistrate or the
other relatives have not the means
to pay the shares of those
relatives whose shares have been
ordered by the Magistrate to be
paid by such other relatives under
the proviso to sub-section (1) the
Magistrate may, by order, direct
the State Wakf Board established
under Section 9 of the Wakf Act,
1954 (29 of 1954), or under any
other law for the time being in
force in a State, functioning in
the area in which the woman
resides, to pay such maintenance as
determined by him under sub-section
(1) or, as the case may be, to pay
the shares of such of the relatives
who are unable to pay, at such
periods as he may specify in his
order." (emphasis supplied)
A bare reading of the provision shows that a divorced
woman is entitled to claim a reasonable and fair maintenance
from such of her relatives as would be entitled to inherit
her property on her death, according to Muslim Law, provided
she has not re-married and is not able to maintain herself.
Such maintenance, however, shall be pauable by such
relatives in proportion to the share which they would
inherit in her property and at such periods as the
Magistrate may specify in his order. If the divorced woman
has children, the first proviso to sub-section (1) of
Section 4 mandates that the liability to maintain her
firstly lies on them. In the event of her children being
unable to maintain her, the liability shifts to her parents
under the same proviso. The liability of the relatives
other than the children and the parents, follows,
sequentially, subject to the conditions as embodied in the
proviso. The liability of the relatives does not depend on
the contingency that the relatives does not depend on the
contingency that the divorced woman has property which they
would inherit. It looks incongruous though that a divorced
woman having property would yet be unable to maintain
herself. Seemingly, the phraseology has been employed to
ascertain firstly such of those relatives who could have
inherited her property, fictionally on the basis that she
could be having property, and secondly as if she had died on
the date when the need for identification arose. The
speculative plea of any relative that her or she may not be
available to be an heir on the date when the divorced woman
would actually die, would neither be here nor there.
Climbing down, if the divorced woman has no relatives as
mentioned in sub-section (1) or relatives who have not
enough means to pay her maintenance, the State Wakf Board
functioning in the area, in which the divorced woman in
resident, has been foisted with the liability to pay
suitable maintenance to her, on the Magistrate’s order
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and/or direction.
We have taken care to underline and emphasise certain
words in the text of Section 4 (supra). As is evident,
there are more than one orders which are contemplated or
conceived of, to be passed by the Magistrate in the morass
of fluctuations, depending upon the existence of children,
parents and the heirs and their capability or inability of
making payment of maintenance and as to its proportions.
The State Wakf Board comes at the bottom of the list to
shoulder the onus of payment of maintenance. The scheme of
the provision is, in a manner, unique in character, in
grading down the responsibility of payment of maintenance
from one to the other and finally coming to rest on the
State Wakf Board, which is the last in line to bear the
burden.
The appellants would have us hold that sub-sections (1)
and (2) of Section 4 are mutually exclusive and the separate
language employed therein, to cover different situation,
breeds further exclusivity, as it is contemplated, that
orders after orders might have to be passed by the
Magistrate in pursuit to grant the divorced wife
maintenance. It has been vehemently argued on behalf of the
appellants that unless sub-section (1) of Section 4 gets
exhausted by proper orders, sub-section (2) of Section 4 (in
which the liability of the State Wakf Board is to be found)
cannot be invoked. In other words, it is contended that in
the present set of proceedings, the appellants cannot be
made to face or litigate about before the Magistrate trying
the matter. We regretfully do not agree to such line of
thinking. The appellants would have us hold that the
provision concedes multiplicity of proceedings, broadly in
the following manner : (1) the proceedings shall in the
first instance be initiated against the children of the
divorced woman; (2) if the children are unable to pay
maintenance then the second proceedings shall be initiated
against the parents of the divorced woman; (3) if the
parents or any one of them is unable to pay the respective
share of maintenance then fresh proceedings be started
against the relatives; (4) in case the relatives are unable
to meet the claim of maintenance, fresh proceedings be
initiated against "other relatives" ; and (5) finally, when
no relatives or any one of them unable to pay maintenance
then another set of proceedings be initiated against the
State Wakf Board; all backed by the orders of the
Magistrate. And since the State Wakf Board comes last, it
is maintained that its turn instantly has not yet arrived
because no proceedings have been initiated against the
relatives.
Going by the arguments and the reasoning adopted by the
appellants, it would, in our way of thinking, have a
devastating effect on the purpose for which the provision
was enacted. The Drafter’s pattern in sub-dividing the
provision into sub-section (1) and (2) evidently was not to
cause any split in the legislative theme because the
provision, as it appears to us, is an integrated whole. One
step is dependent on another. It is futile for to divorced
woman seeking succour to run after relatives, be it her
children, parents, relatives or other relatives, who are not
possessed of means to offer her maintenance and in fighting
litigations in succession against them, dragging them to
courts of law in order to obtain negative orders
justificatory of the last resort of moving against the State
Wakf Board. In our considered view, she would instead be
entitled to plead and prove such relevant facts in one
proceeding, as to the inability of her relations
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aforementioned, maintaining her and directing her claim
against the State Wakf Board in the first instance. It is,
however, open for the State Wakf Board to controvert that
the relations mentioned in the provisions, or some, of them,
have the means to pay maintenance to her. In that event the
Magistrate would perfectly be justified in adding those
relatives as parties to the litigation in order to determine
as towards whom shall he direct his orders for payment of
maintenance. In one and the same proceeding, one or more
orders conceivably can be passed in favour of the divorced
woman subject of course to her not re-marrying and remaining
unable to maintain herself. We hold accordingly.
We are thus satisfied that the High Court committed no
wrong in declining to interfere at the initial stage of the
proceedings at the behest of the appellants. They are at
liberty to take before the Magistrate hearing the matter,
such defence as are open to them on the merit of the matter
and within the framework of the legislative scheme embodied
in Section 4 of the Act.
Before parting with the judgment, it need be taken into
account that notice to the respondent was issued, subject to
the appellant depositing a sum of Rs. 10,000/- in this
Court, irrespective of the result of this case, for the
benefit of the respondent, to obtain it and defray the
litigation expenses. The respondent, in turn, did not
engage a counsel but despatched a letter to this Court,
praying that some counsel be arranged by the Court to
represent her and that she be remitted the said sum of Rs.
10,000/-. In such a situation, we had appointed Mr. Uday
Umesh Lalit, learned counsel as an amicus curiae to assist
us in the matter on her behalf. We had the advantage of his
able assistance in appreciating this matter. In our view,
he deserves a remuneration of Rs. 3,000/-. The Registry is
directed accordingly, to make payment to Mr. Lalit out of
the sum deposited. The balance sum of Rs. 7,000/- be
remitted to the respondent as succour, to tide over her
financial difficulties, which is ordered not to be taken
into account or reckoned in determining any claim for
maintenance.
For the afore reasons, this appeal is dismissed