Full Judgment Text
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PETITIONER:
THE SECRETARY, TAMIL NADU WAKF BOARDAND ANOTHER
Vs.
RESPONDENT:
SYED FATIMA NACHI
DATE OF JUDGMENT: 09/07/1996
BENCH:
PUNCHHI, M.M.
BENCH:
PUNCHHI, M.M.
MANOHAR SUJATA V. (J)
CITATION:
1996 SCC (4) 616 JT 1996 (6) 258
1996 SCALE (5)121
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, he 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 ant 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 hers 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 nor her parents were in a position to
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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
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 unto the effect of a
Constitution Bench decision of this Court in Mohd. Ahmad
Khan v. (1985 2 SCC 556) because the said decision was
strongly opposed to by a sizeable section of the Muslim
Community. The Act, as the 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 off
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 remarried and is not able
to maintain herself after the
iddat period, he way 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’s of life enjoyed by her
during her marriage and the means
of such relative’s 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
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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
have the means of paying the sa me
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 our 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 remarried and is not able to maintain herself.
Such maintenance, however, shall be payable 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 tire conditions as embodied in the proviso. The
liability of 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 he or she may not be
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available to be ap 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 is
resident, has been foisted with the liability to pay
suitable maintenance to her, on the Magistrate’s order
and/or direction.
We have taken care to underline and emphasis certain
words in the text of Section 4 (supra). As is evident, there
fire 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 situations,
breeds further exclusivity, as it is Contemplated that
orders after orders might have to be passed by the
Magistrate in the 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 relative exists as mentioned in sub-section (1) or such
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 find 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-sections (1) and (2) evidently was not to
cause many 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 a divorced
woman seeking succour to run after relatives, be it her
children, parents, relatives or other relatives, who are not
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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 to 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
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 provision, 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 remarrying 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 defences 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
of reckoned in determining any claim for maintenance.
For the afore reasons, this appeal is dismissed.