All India Reporter

AIR 2001 SUPREME COURT 3958

SUPREME COURT
G. B. PATNAIK , J. and S. RAJENDRA BABU , J. and D. P. MOHAPATRA ,
J. and DORAISWAMY RAJU , J. and SHIVARAJ V. PATIL , J.

Writ Petn. (Civil) No. 868 of 1986, with W.P. (C) Nos. 996,1001,1055, 1062,1236, 1259 and
1281 of 1986;T.C. (C) Nos. 22 of 1987, 86 and 68 of 1988, 276-77 of 1987, CriA. No. 702 of
1990;SLP. (Cri) Nos. 655 of 1988, 596 - 97 of 1992; W.P. (C) No. 12273 of 1984 ; SLP (Cri) No.
2513 of 1994; Cri. A. No. 508,843 of 1995,102-103 of 1989,292 of 1990; SLP (Cri.) Nos. 2165 of
1996,3786 and 242 of 1999 D/- 28 - 9 - 2001

Danial Latifi and another Petitioners v. Union of India Respondent.

Criminal P.C. (2 of 1974), S.125 - Constitution of India, Art.14, Art.15, Art.21 - Muslim Women
(Protection of Rights on Divorce) Act (25 of 1986), S.3, S.4 - Constitutional validity of - Right of
Divorced muslim women to be paid maintenance under S. 3 of the Act - Muslim husband is liable
to make reasonable and fair provision for future of divorced wife which includes maintenance
- Liability to pay maintenance is not confined to iddat period - Divorced muslim woman unable
to maintain herself after iddat period can proceed under S. 4 of Act against her relatives or
wakf Board for maintenance - Such a Scheme provided under Act is also equally beneficial like
one provided under S. 125 of Cr. P. C. i.e. to avoid vagrancy - Therefore Act depriving muslim
woman from applicability of S. 125 Cr. P.C. not discriminatory unconstitutional.

Abdul Rashid B. Sultana Begum 1992 Cri LJ 76 (Cal) Usman Khan v. Fathimunnisa Begum
1990 Cri LJ 1364 (A.P.) (FB) Overruled.

A reading of the Muslim Women (Protection of Rights on Divorce) Act will indicate that it codifies
and regulates the obligations due to a Muslim woman divorcee by putting them outside the scope of
Section 125 Cr.P.C. as the 'divorced woman' has been defined as "Muslim woman who was married
according to Muslim law and has been divorced by or has obtained divorce from her husband in
accordance with the Muslim law". But the Act does not apply to a Muslim woman whose marriage is
solemnized either under the Indian Special Marriage Act, 1954 or a Muslim woman whose marriage
was dissolved either under Indian Divorce Act, 1969 or the Indian Special Marriage Act, 1954. The
Act does not apply to the deserted and separated Muslim wives. The maintenance under the Act is to
be paid by the husband for the duration of the iddat period and this obligation does not extend beyond
the period of iddat. Once the relationship with the husband has come to an end with the expiry of the
iddat period, the responsibility devolves upon the relatives of the divorcee. The Act follows Muslim
personal law in determining which relatives are responsible under which circumstances. It there are
no relatives, or no relatives are able to support the divorcee, then the Court can order the State Wakf
Boards to pay the maintenance.
(Para26)

A comparison of provisions Ss. 3 and 4 of Act with Section 125 Cr.P.C. will make it clear that
requirements provided in Section 125 of Cr.P.C. 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 is satisfied. If that is so, the

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argument of the petitioners that a different scheme being provided under the Act which is equally or
more beneficial 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 Cr.P.C. 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, it is difficult to accept the contention that remedy to avoid vagrancy
is denied to muslim women.

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Even under the Act, the parties agreed that the provisions of Section 125 Cr.P.C. 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 Cr.P.C. would now be granted under the very Act itself. This being the position, the Act cannot
be held to be unconstitutional.
(Paras30 31)

The important section in the Act is Section 3 which provides that 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. The crux of the matter is that the divorced woman shall be entitled to a reasonable
and fair provision and maintenance to be made and paid to her within the iddat period by her former
husband. The wordings of Section 3 of the Act appear to indicate 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 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'. 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 his wife, in addition to having paid his wife's mahr and restored her dowry
as per Section 3(1)(c) and 3(1)(d) of the Act.
)

The provisions enacted under the Act are 'a reasonable and fair provision and maintenance to be made
and paid as provided under Section 3(1)(a) of the Act and these expressions cover different things,
firstly, by the use of two different verbs - "to be made and paid to her within the iddat period", it is
clear that a fair and reasonable provision is to be made while maintenance is to be paid; secondly,
Section 4 of the Act, which empowers the magistrate to issue an order for payment of maintenance to
the divorced woman against various of her relatives, contains no reference to 'provision'. Obviously,
the right to have 'a fair and reasonable provision' in her favour is a right enforceable only against the
woman's former husband, and in addition to what he is obliged to pay as 'maintenance'; thirdly, the
words of the Holy Quran, as translated by Yusuf Ali of 'mata' as 'maintenance' though may be incorrect
and that other translations employed the word 'provision', Court in Shah Bano's case AIR 1985 SC 945
dismissed this aspect by holding that it is a distinction without a difference. Indeed, whether 'mata' was
rendered 'maintenance' or 'provision', there could be no pretence that the husband in Shah Bano's case
AIR 1985 SC 945 had provided anything at all by way of 'mata' to his divorced wife. The contention

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putforth on behalf of the other side is that a divorced Muslim woman who is entitled to 'mata' is only
a single or one time transaction which does not mean payment of maintenance continuously at all.
This contention, apart from supporting the view that the word 'provision' in Section 3(1)(a) of the Act
incorporates 'mata' as a right of the divorced Muslim woman distinct from and in addition to mahr and
maintenance for the iddat period, also enables 'a reasonable and fair provision' and 'a reasonable and
fair provision' as provided under Section 3(3) of the Act would be with reference to the needs of the
divorced woman, the means of the husband, and the standard of life the woman enjoyed during the
marriage and there is no reason why such provision could not take the form of the regular payment of
alimony to the divorced woman, though it may look ironical that the enactment intended to reverse
the decision in Shah Bano's case, actually codifies the very rationale contained therein.
(Para29)

While upholding the validity of the Act, Court holds that -

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

@page-SC3960

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.

1992 Cri LJ 76(Cal) and 1990 Cri LJ 1364 (AP) (FB), Overruled
(Para34)

Cases Referred Chronological Paras

Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh : 35
2000 Cri LJ 3560 (Bom) (FB)
Joitanbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh : 35
1999 Cri LJ 3846 : (1999) 3 Mah LJ 694
Abdul Haq v. Yasim Talat 1998 Cri LJ 3433 (Madh Pra) 35
K. Zunaideen v. Ameena Begum (1998) 2 D.M.C. 468 : 35
(1997) 2 Mad. LJ 464

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Cases Referred Chronological Paras

Kaka v. Hassan Bano (1998) 2 DMC 85 : 1998 (118) Pun 35
LR1(FB)
K. Kunhammed Haji v. K. Amina : 1995 Cri LJ 3371 (Kerala) 35
Mohamed Ibrahim v. Ramzan Begum : (1993) 1 D.M.C. 60 35
(Madras)
Abdul Rashid Vs. Sultana Begum : 1992 Cri LJ 76 (Cal) 35
(Overruled)
Usman Khan Bhahamani v. Fathimunnisa Begum 1990 Cri 35
LJ 1364 (Andh Pra) (FB) (Overruled)
Arab Ahemadhia Abdulla v. Arab Bail Mohmuna 14 , 35
Saiyadbhai : AIR 1988 Gujarat 141
Ali v. Sufaira : (1988) 3 Crimes 147 : (1988) 2 Ker LT 94 35
Olga Tellis v. Bombay Municipal Corporation : AIR 1986 33
SC 180 : (1985) 3 SCC 545
Mohommed Ahmed Khan v. Shah Bano Begum AIR 1985 2 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 13 , 14 , 17 ,
SC 945 : 1985 Cri LJ 875 : (1985)2 SCC 556 29 , 32 , 33 , 34
Fazlunbi v. K.Khader Vali : AIR 1980, S.C. 1730 : 1980 Cri 8
LJ 1249 : (1980) 4 SCC 125
Bai Tahira v. Ali Hussain Fidaali Chothia : AIR 1979 SC 8
362 : 1979 Cri LJ 151 : (1979) 2 S C C 316
Meneka Gandhi v. Union of India : AIR 1978 SC 597 : (1978) 33
I SCC 348
Aga Mohomod Jaffer Bindaneem v. Koolsom Bee Bee 11
(1897) 24 Ind. App. 196 : (1898)IALR 25 Cal 9 (P C)

Harish N. Salve, Solicitor General, Ms. Indira Jaisingh, Y. H. Muchhala, N.N. Goswami,Dr.A.M.
Singhvi, Sr. Advocates, Mrs. Sona Khan-In person in W.P. (C)No. 868/86,Ms. K. Hingorani
N.H. Hingorani, Aman Hingorani,Ms. Priya Hingorani,Ms. Kamini Jaiswal,Ms. Anitha Shenoy,
Sanjay Ghose,Ms. Anuja Mirchandani,Ms. Malini Poduval,Ms.Lansinglu Rongmei, Suryakant,
Mrs Sona Khan,K.M.K. Nair,S.C. Patel,Rajesh Prasad Singh, Petitioner in-person for T.C.(C)
No.22/87,Gopal Singh,Sushil Kr. Jain,A. Mishra,Mrs Anjali Joshi,Mrs RAni Chhabra,Bhaskar Y.
Kulkarni,K.C. Dua,E.M.S. Anam,A.K. Sanghi, Badar D. Ahmed Parijat Sinha,Anis Ahmed,Shakeel
Ahmed,Mustaq Ahmed, Mrs.Lily Isabel Thomas,Ranjeet Kumar,Mrs. Binoo Tamta,A.A. Khan,C.V.
Subbarao,Mrs. Indra Sawhney,W.S.A. Quadri,Amitesh Kumar,Ms. Sushmaa Suri,B.K. Prasad,V.V.
Joshi,M. Mohsin Israily,T.N. Singh, Mrs.Suashta Bagga,Surya Kant,Respondent in-Person in W.P.
(C) No. 12273/84,C.N. Sreekumar,Ajit Pudussery, Mrs.K. Sarada Devi,T.C. Sharma,Raju Sharma,
Mrs Neelam Sharma, N. R. Choudhary, J.P. Pandey, Somnath Mukherjee,Avijit Bhattacharjee, Ms.
Aparna Bhat,Rakesh Prasad,Syed Saif Mehmood,P.C. Sen,S.M Jadhav,Gourav Jain and Ms. Abha
Jain, Advocates with them for the appearing parties.

Judgement

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1. RAJENDRA BABU, J. :The constitutional validity of the Muslim Women (Protection of Rights
on Divorce) Act, 1986 (hererinafter referred to as 'the Act') is in challenge before us in these cases.

2. The facts in Mohd. Ahmed Khan v. Shah Bano Begum , (AIR 1985 SC 945 : 1985 Cri LJ 875) :
(1985) 2 S C C 556 are as follows:-

The husband appealed against the judgment of the Madhya Pradesh High Court directing him to pay
to his divorced wife Rs. 179/- per month, enhancing the paltry sum of Rs. 25 per month originally
granted by the Magistrate. The parties had been

@page-SC3961

married for 43 years before the ill and elderly wife had been thrown out of her husband's residence.
For about two years the husband paid maintenance to his wife at the rate of Rs. 200/- per month. When
these payments ceased she petitioned under Section 125 Cr.PC. The husband immediately dissolved
the marriage by pronouncing triple talaq. He paid Rs.3000/- as deferred mahr and a further sum to
cover arrears of maintenance and maintenance for the iddat period and he sought thereafter to have
the petition dismissed on the ground that she had received the amount due to her on divorce under the
Muslim law applicable to the parties. The important feature of the case was that the wife had managed
the matrimonial home for more than 40 years and had borne and reared five children and was incapable
of taking up any career or independently supporting herself at that late stage of her life - remarriage
was an impossibility in that case. The husband a successful Advocate with an approximate income of
Rs. 5,000/- per month provided Rs. 200/- per month to the divorced wife, who had shared his life for
half a century and mothered his five children and was in desperate need of money to survive.

2. Thus, the principle question for consideration before this court was the interpretation of Section
127 (3) (b) Cr.P.C. that where a Muslim woman had been divorced by her husband and paid her mahr,
would it indemnify the husband from his obligation under the provisions of Section 125 Cr.P.C.. A
Five-judge Bench of this Court reiterated that the Code of Criminal Procedure controls the proceedings
in such matters and overrides the personal law of the parties. If there was a conflict between the terms
of the Code and the rights and obligations of the individuals, the former would prevail. This Court
pointed out that mahr is more closely connected with marriage than with divorce though mahr or
significant portion of it is usually payable at the time the marriage is dissolved, whether by death or
divorce. This fact is relevant in the context of Section 125 Cr.P.C. even if it is not relevant in the
context of Section 127 (3) (b) Cr.P.C.. Therefore, this Court held that it is a sum payable on divorce
within the meaning of Section 127 (3) (b) Cr.P.C. and held that mahr is such a sum which cannot ipso
facto absolve the husband's liability under the Act.

3. It was next considered whether the amount of mahr constitutes a reasonable alternative to the
maintenance order. If mahr is not such a sum, it cannot absolve the husband from the rigour of
Section 127 (3) (b) Cr.P.C. but even in that case, mahr is part of the resources available to the
woman and will be taken into account in considering her eligibility for a maintenance order and the
quantum of maintenance. Thus this Court concluded that the divorced women were entitled to apply
for maintenance order against their former husbands under Section 125 Cr.P.C. and such applications
were not barred under Section 127 (3) (b) Cr.P.C.. The husband had based his entire case on the
claim to be excluded from the operation of Section 125 Cr.P.C. on the ground that Muslim law

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exempted from any responsibility for his divorced wife beyond payment of any mahr due to her and
an amount to cover maintenance during the iddat period and Section 127 (3) (b) Cr.P.C. conferred
statutory recognition on this principle. Several Muslim organisations. which intervened in the matter.
also addressed arguments. Some of the Muslim social workers who appeared as interveners in the
case supported the wife brought in question the issue of 'mata' contending that Muslim law entitled a
Muslim divorced woman to claim provision for maintenance from her husband after the Iddat period.
Thus, the issue before this Court was: the husband was claiming exemption on the basis of Section
127 (3) (b) Cr.P.C. on the ground that he had given to his wife the whole of the sum which, under
the Muslim law applicable to the parties, was payable on such divorce while the woman contended
that he had not paid the whole of the sum, he had paid only the mahr and iddat maintenance and had
not provided the mata. i.e. provision or maintenance referred to in the Holy Quran,Chapter II, Sura
241. This Court , after referring to the various text books on Muslim law, held that the divorced wife's
right to maintenance ceased on expiration of iddat period but this Court proceeded to observe that
the general propositions reflected in those statements did not deal with the special situation where the
divorced wife was unable to maintain herself. In such cases,it was stated that it would be not only
incorrect but unjust to extend the scope of the statements referred to in

@page-SC3962

those text books in which a divorced wife is unable to maintain herself and opined that the application
of those statements of 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. This Court concluded that
these Aiyats (the Holy Quran, Chapter II, Suras 241-242) leave no doubt that the Holy Quran imposes
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 teaching of the Holy Quran. On this note,
this Court concluded its judgment.

5. There was a big uproar thereafter and Parliament enacted the Act perhaps, with the intention of
making the decision in Shah Bano's case (AIR 1985 S.C. 945) ineffective.

6. The Statement of Objects and Reasons to the bill, which resulted in the Act, reads as follows :

"The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945 has held that
although the Muslim Law limits the husband's liability to provide for maintenance of the divorced
wife to the period of iddat, it does not contemplate or countenance the situation envisaged by Section
125 of the Code of Criminal Procedure, 1973. The Court held that it would be incorrect and unjust to
extend the above principle of Muslim Law to cases in which the divorced wife is unable to maintain
herself. The Court, therefore, came to the conclusion that if the divorced wife is able to maintain
herself, the husband's liability ceases with the expiration of the period of iddat but if she is unable to
maintain herself after the period of iddat, she is entitled to have recourse to Section 125 of the Code
of Criminal Procedure.

2. This decision has led to some controversy as to the obligation of the Muslim husband to pay
maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights which
a Muslim divorced woman is entitled to at the time of divorce and to protect her interests. The Bill
accordingly provides for the following among other things, namely :-

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(a) a Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance
within the period of iddat by her former husband and in case she maintains the children born to her
before or after her divorce, such reasonable provision and maintenance would be extended to a period
of two years from the dates of birth of the children. She will also be entitled to mahr or dower and all
the properties given to her by her relatives, friends, husband and the husband's relatives. If the above
benefits are not given to her at the time of divorce, she is entitled to apply to the Magistrate for an
order directing her former husband to provide for such maintenance, the payment of mahr or dower
or to deliver of the properties;

(b) where a Muslim divorced woman is unable to maintain herself after the period of iddat, the
Magistrate is empowered to make an order for the payment of maintenance by her relatives who would
be entitled to inherit her property on her death according to Muslim Law in the proportions in which
they would inherit her property. If any one of such relatives is unable to pay his or her share on the
ground of his or her not having the means to pay, the Magistrate would direct the other relatives who
have sufficient means to pay the shares of these relatives also. But where, a divorced woman has no
relatives or such relatives or any one of them has not enough means to pay the maintenance or the
other relatives who have been asked to pay the shares of the defaulting relatives also do not have the
means to pay the shares of the defaulting relatives the Magistrate would order the State Wakf Board
to pay the maintenance ordered by him or the shares of the relatives who are unable to pay."

7. The object of enacting the Act, as stated in the Statement of Objects and Reasons to the Act, is
that this Court, in Shah Bano's case (AIR. 1985 S C 945) held that Muslim Law limits the husband's
liability to provide for maintenance of the divorced wife to the period of iddat, but it does

@page-SC3963

not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal
Procedure, 1973 and, therefore, it cannot be said that the Muslim husband, according to his personal
law, is not under an obligation to provide maintenance beyond the period of iddat to his divorced
wife, who is unable to maintain herself.

8. As held in Shah Bano's case, 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
but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to
Section 125 Cr.P.C. Thus it was held that there is no conflict between the provisions of Section 125
Cr.P.C. and those of the Muslim Personal Law on the question of the Muslim husband's obligation to
provide maintenance to his divorced wife, who is unable to maintain herself. This view is a reiteration
of what is stated in two other decisions earlier rendered by this Court In Bai Tahira v. Ali Hussain
Fidaalli Chothia, (1979) 2 SCC 316 and Fuzlunbi v. K. Khader Vali (1980 4 SCC 125

9. Smt. Kapila Hingorani and Smt. Indira Jaisingh raised the following contentions in support of the
petitioners and they are summarised as follows:

1. Muslim marriage is a contract and an element of consideration is necessary by way of mahr or dower
and absence of consideration will discharge the marriage. On the other hand Section 125 Cr.P.C. has
been enacted as a matter of public policy.

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2.To enable a divorced wife, who is unable to maintain herself, to seek from her husband, who is
having sufficient means and neglects or refuses to maintain her, payment of maintenance at a monthly
rate not exceeding Rs. 500/-. The expression 'wife' includes a woman who has been divorced by, or
has obtained a divorce from her husband and has not remarried. The religion professed by a spouse
or the spouses has no relevance in the scheme of these provisions whether they are Hindus, Muslims,
Christians or the Parsis, pagans or heathens. It is submitted that Section 125 Cr.P.C. is part of the
Code of Criminal Procedure and not a civil law, which defines and governs rights and obligations
of the parties belonging to a particular religion like the Hindu Adoptions and Maintenance Act, the
Shariat, or the Parsi Matrimonial Act. Section 125 Cr.P.C., it is submitted, was enacted in order to
provide a quick and summary remedy. The basis there being, neglect by a person of sufficient means
to maintain these and the inability of these persons to maintain themselves, these provisions have been
made and the moral edict of the law and morality cannot be clubbed with religion.

3. The argument is that the rationale of Section 125 Cr.P.C. is to offset or to meet a situation where a
divorced wife is likely to be led into destitution or vagrancy. Section 125 Cr.P.C. is enacted to prevent
the same in furtherance of the concept of social justice embodied in Article 21 of the Constitution.

4. It is, therefore, submitted that this Court will have to examine the questions raised before us
not on the basis of Personal Law but on the basis that Section 125 Cr.P.C. is a provision made in
respect of women belonging to all religions and exclusion of Muslim women from the same results
in discrimination between women and women. Apart from the gender injustice caused in the country,
this discrimination further leads to a monstrous proposition of nullifying a law declared by this Court
in Shah Bano's case. Thus there is a violation of not only equality before law but also equal protection
of laws and inherent infringement of Article 21 as well as basic human values. If the object of Section
125 Cr.P.C. is to avoid vagrancy, the remedy thereunder cannot be denied to Muslim women.

5. The Act is an un-islamic, unconstitutional and it has the potential of suffocating

@page-SC3964

the muslim women and it undermines the secular character, which is the basic feature of the
Constitution; that there is no rhyme or reason to deprive the muslim women from the applicability
of the provisions of Section 125 Cr.P.C. and consequently, the present Act must be held to be
discriminatory and violative of Article 14 of the Constitution; that excluding the application of Section
125 Cr.P.C. is violative of Articles 14 and 21 of the Constitution; that the conferment of power on
the Magistrate under sub-section (2) of Section 3 and Section 4 of the Act is different from the right
of a muslim woman like any other woman in the country to avail of the remedies under Section 125
Cr.P.C. and such deprivement would make the Act unconstitutional, as there is no nexus to deprive a
muslim woman from availing of the remedies available under Section 125 Cr.P.C., notwithstanding
the fact that the conditions precedent from availing of the said remedies are satisfied.

10. The learned Solicitor General, who appeared for the Union of India, submitted that when a question
of maintenance arises which forms part of the personal law of a community, what is fair and reasonable
is a question of fact in that context. Under Section 3 of the Act, it is provided that a reasonable and fair
provision and maintenance to be made and paid by her former husband within the iddat period would
make it clear that it cannot be for life but would only be for a period of iddat and when that fact has

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clearly been stated in the provision, the question of interpretation as to whether it is for life or for the
period of iddat would not arise. Challenge raised in this petition is dehors the personal law. Personal
law is a legitimate basis for discrimination, if at all, and, therefore, does not offend Article 14 of the
Constitution. If the legislature, as a matter of policy, wants to apply Section 125 Cr.P.C. to Muslims, it
could also be stated that the same legislature can, by implication, withdraw such application and make
some other provision in that regard. Parliament can amend Section 125 Cr.P.C. so as to exclude them
and apply personal law and the policy of Section 125 Cr.P.C. is not to create a right of maintenance
dehors the personal law. He further submitted that in Shah Bano's case, (AIR 1985 SC 945:1985 Cri
LJ 875) it has been held that a divorced woman is entitled to maintenance even after the iddat period
from the husband and that is how Parliament also understood the ratio of that decision. To overcome
the ratio of the said decision, the present Act has been enacted and Section 3(1)(a) is not in discord
with the personal law.

11. Shri. Y. H. Muchhala, learned Senior Advocate appearing for the All India Muslim Personal Law
Board, submitted that the main object of the Act is to undo the Shah Bano's case, He submitted that this
Court has harzarded interpretation of an unfamiliar language in relation to religious tenets and such
a course is not safe as has been made clear by Aga Mohomed Jaffer Bindaneem v. Koolsom Bee Bee
(1897) 24 Ind App 196, particularly in relation to Suras 241 and 242 Chapter II, the Holy Quran. He
submitted that in interpreting Section 3 (1)(a) of the Act, the expressions 'provision' and 'maintenance,
are clearly the same and not different as has been held by some of the High Courts. He contended
that the aim of the Act is not to penalise the husband but to avoid vagrancy and in this context
Section 4 of the Act is good enough to take care of such a situation and he, after making reference to
several works on interpretation and religious thoughts as applicable to Muslims, submitted that social
ethos of Muslim society spreads a wider net to take care of a Muslim divorced wife and not at all
dependent on the husband. He adverted to the works of religious thoughts by Sir Syed Ahmad Khan
and Bashir Ahmad, published from Lahore in 1957 at p. 735. He also referred to the English translation
of the Holy Quran to explain the meaning of 'gift' in Sura 241. In conclusion, he submitted that the
interpretation to be placed on the enactment should be in consonance with the Muslim personal law
and also meet a situation of vagrancy of a

@page-SC3965

Muslim divorced wife even when there is a denial of the remedy provided under Section 125 Cr.P.C.
and such a course would not lead to vagrancy since provisions have been made in the Act. This
Court will have to bear in mind the social ethos of Muslims, which are different and the enactment
is consistent with law and justice.

12. It was further contended on behalf of the respondents that the Parliament enacted the impugned
Act, respecting the personal law of muslims and that itself is a legitimate basis for making a
differentiation; that a separate law for a community on the basis of personal law applicable to such
community, cannot be held to be discriminatory; that the personal law is now being continued by a
legislative enactment and the entire policy behind the Act is not to confer a right of maintenance,
unrelated to the personal law; that the object of the Act itself was to preserve the personal law and
prevent inroad into the same; that the Act aims to prevent the vagaries and not to make a muslim
woman, destitute and at the same time, not to penalise the husband; that the impugned Act resolves all

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issues, bearing in mind the personal law of muslim community and the fact that the benefits of Section
125 Cr.P.C. have not been extended to muslim women, would not necessarily lead to a conclusion
that there is no provision to protect the muslim women from vagaries and from being a destitute; that
therefore, the Act is not invalid or unconstitutional.

13. On behalf of the All India Muslim Personal Law Board, certain other contentions have also
been advanced identical to those advanced by the other authorities and their submission is that the
interpretation placed on the Arabic word 'mata' by this Court in Shah Bano's case is incorrect and
submitted that the maintenance which includes the provision for residence during the iddat period is
the obligation of the husband but such provision should be construed synonymously with the religious
tenets and, so construed, the expression would only include the right of residence of a Muslim divorced
wife during iddat period and also during the extended period under Section 3(1)(a) of the Act and
thus reiterated various other contentions advanced on behalf of others and they have also referred to
several opinions expressed in various text books, such as, -

1. The Turjuman al-Quran by Maulana Abul Kalam translated into English by Dr. Syed Abdul Latif;

2. Persian Translation of the Quran by Shah Waliullah Dahlavi;

3. Al-Manar Commentary on the Quran (Arabic);

4. Al-Isaba by Ibne Hajar Asqualani [Part-2]; Siyar Alam-in-Nubla by Shamsuddin Mohd. Bin Ahmed
Bin Usman Az-Zahbi;

5. Al-Maratu Bayn Al-Fiqua Wa Al Qanun by Dr. Mustafa As-Sabai;

6. Al-Jamil' ahkam-il Al-Quran by Abu Abdullah Mohammad Bin Ahmed Al Ansari Al-Qurtubi;

7. Commentary on the Quran by Baidavi (Arabic);

8. Rooh-ul-Bayan (Arabic) by Ismail Haqqi Affendi;

9. Al Muhalla by Ibne Hazm (Arabic);

10. Al-Ahwalus Shakhsiah (the Personal Law) by Mohammad Abu Zuhra Darul Fikrul Arabi.

14. On the basis of the aforementioned text books, it is contended that the view taken in Shah Bano's
case on the expression 'mata' is not correct and the whole object of the enactment has been to nullify
the effect of the Shah Bano's case so as to exclude the application of the provision of Section 125
Cr.P.C., however, giving recognition to the personal law as stated in Sections 3 and 4 of the Act. As
stated earlier, the interpretation of the provisions will have to be made bearing in mind the social ethos
of the Muslim and there should not be erosion of the personal law.

15. On behalf of the Islamic Shariat Board, it is submitted that except for Mr. M. Asad and Dr.
Mustafa-as Sabayi no author subscribed to the view that the Verse 241 of Chapter II of the Holy Quran
casts an obligation on a former husband to pay

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maintenance to the Muslim divorced wife beyond the iddat period. It is submitted that Mr. M. Asad's
translation and commentary has been held to be unauthentic and unreliable and has been subscribed
by the Islamic World League only. It is submitted that Dr. Mustafa-as-Sabayi is a well-known author
in Arabic but his field was history and literature and not the Muslim law. It was submitted that neither
are they the theologists nor jurists in terms of Muslim law. It is contended that this Court wrongly
relied upon Verse 241 of Chapter II of the Holy Quran and the decree in this regard is to be referred
to Verse 236 of Chapter II which makes paying 'mata' as obligatory for such divorcees who were not
touched before divorce and whose Mahr was not stipulated. It is submitted that such divorcees do not
have to observe iddat period and hence not entitled to any maintenance. Thus the obligation for 'mata'
has been imposed which is a one time transaction related to the capacity of the former husband. The
impugned Act has no application to this type of case. On the basis of certain texts, it is contended
that the expression 'mata' which according to different schools of Muslim law, is obligatory only in
typical case of a divorce before consummation to the woman whose mahr was not stipulated and
deals with obligatory rights of maintenance for observing iddat period or for breast-feeding the child.
Thereafter, various other contentions were raised on behalf of the Islamic Shariat Board as to why the
views expressed by different authors should not be accepted.

16. Dr. A.M. Singhvi, learned Senior Advocate who appeared for the National Commission for
Women, submitted that the interpretation placed by the decisions of the Gujurat, Bombay, Kerala
and the minority view of the Andhra Pradesh High Courts should be accepted by us. As regards the
constitutional validity of the Act, he submitted that if the interpretation of Section 3 of the Act as stated
later in the course of this judgment is not acceptable then the consequence would be that a Muslim
divorced wife is permanently rendered without remedy insofar as her former husband is concerned
for the purpose of her survival after the iddat period. Such relief is neither available under Section 125
Cr.P.C. nor is it properly compensated by the provision made in Section 4 of the Act. He contended
that the remedy provided under Section 4 of the Act is illusory inasmuch as - firstly, she cannot
get sustenance from the parties who were not only strangers to the marital relationship which led to
divorce; secondly, wakf boards would usually not have the means to support such destitute women
since they are themselves perennially starved of funds and thirdly, the potential legatees or a destitute
woman would either be too young or too old so as to be able to extend requisite support. Therefore,
realistic appreciation of the matter will have to be taken and this provision will have to be decided on
the touch stone of Articles 14, 15 and also Article 21 of the Constitution and thus the denial of right
to life and liberty is exasperated by the fact that it operates oppressively, unequally and unreasonably
only against one class of women. While Section 5 of the Act makes the availability and applicability
of the remedy as provided by Section 125 Cr.P.C. dependent upon the whim, caprice, choice and
option of the husband of the Muslim divorcee who in the first place is sought to be excluded from
the ambit of Section 3 of the post-iddat period and, therefore, submitted that this provision will have
to be held unconstitutional.

17. This Court in Shah Bano's case held that although Muslim personal law limits the husband's
liability to provide maintenance for his divorced wife to the period of iddat, it does not contemplate a
situation envisaged by Section 125 Cr.P.C. of 1973. The Court held that it would not be incorrect or
unjustified to extend the above principle of Muslim Law to cases in which a divorced wife is unable

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to maintain herself and, therefore, the Court came to the conclusion that if the divorced wife is able to
maintain herself the husband's liability ceases with the expiration of the period of iddat, but if she is
unable to maintain herself after the period of iddat, she is entitled to recourse to Section 125 Cr.P.C..
This decision having imposed obligations as to the liability of Muslim husband to pay maintenance
to his divorced wife,

@page-SC3967

Parliament endorsed by the Act the right of a Muslim woman to be paid maintenance at the time of
divorce and to protect her rights.

18. The learned counsel have also raised certain incidental questions arising in these matters to the
following effect-

1) Whether the husband who had not complied with the orders passed prior to the enactments and
were in arrears of payments could escape from their obligation on the basis of the Act, or in other
words, whether the Act is retrospective in effect ?

2) Whether Family Courts have jurisdiction to decide the issues under the Act?

3) What is the extent to which the Wakf Board is liable under the Act?

19. The learned counsel for the parties have elaborately argued on a very wide canvass. Since we
are only concerned in this Bench with the constitutional validity of the provisions of the Act, we
will consider only such questions as are germane to this aspect. We will decide only the question of
constitutional validity of the Act and relegate the matters when other issues arise to be dealt with by
respective Benches of this Court either in appeal or special leave petitions or writ petitions.

20. In interpreting the provisions where matrimonial relationship is involved, we have to consider
the social conditions prevalent in our society. In our society, whether they belong 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. Our 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 we 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 livelihood
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 an the heirs who were likely to inherit the property from her or the wakf boards.
Such an approach appears to us 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

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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, we have to interpret the provisions of
the Act in question.

21. Now it is necessary to analyse the provisions of the Act to understand the scope of the same.
The Preamble to the Act sets out that it is an Act to protect the rights of Muslim women who have
been divorced by, or have obtained divorce from, their husbands and to provide for matters connected
therewith or incidental thereto. A "divorced woman" is defined under Section 2(a) of the Act to mean
a divorced woman who was married according to Muslim Law, and has been divorced by, or has
obtained divorce from her husband in accordance with Muslim Law; " iddat period" is defined under
Section 2(b) of the Act to mean, in the case of a divorced woman,-

(i) three menstrual courses after the date of divorce, if she is subject to menstruation;

(ii) three lunar months after her divorce, if she is not subject to menstruation; and

(iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of
her child or the termination of her pregnancy whichever is earlier.

22. Sections 3 and 4 of the Act are the principal sections, which are under attack before us. Section
3 opens up with a non-obstante clause overriding all other laws and provides that a divorced woman
shall be entitled to -

(a) a reasonable and fair provision and maintenance to be made and paid to her within the period of
iddat by her former husband;

@page-SC3968

(b) where she maintains the children born to her before or after her divorce, a reasonable provision and
maintenance to be made and paid by her former husband for a period of two years from the respective
dates of birth of such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage
or at any time thereafter according to Muslim Law; and

(d) all the properties given to her before or at the time of marriage or after the marriage by her relatives,
friends, husband and any relatives of the husband or his friends.

23. Where such reasonable and fair provision and maintenance or the amount of mahr or dower due
has not been made and paid or the properties referred to in clause (d) of sub-section (1) have not
been delivered to a divorced woman on her divorce, she or any one duly authorised by her may,
on her behalf, make an application to a Magistrate for an order for payment of such provision and
maintenance, mahr or dower or the delivery of properties, as the case may be. Rest of the provisions
of Section 3 of the Act may not be of much relevance, which are procedural in nature.

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24. Section 4 of the Act provides that, with an overriding clause as to what is stated earlier in the Act
or in any other law for the time being in force, where the 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. If any of the relatives do not have the necessary means to pay the same, the Magistrate may
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 same in such proportions
as the Magistrate may think fit to order. 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 has 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 second proviso to sub-section (1), the Magistrate may, by order
direct the State Wakf Board, functioning in the area in which the divorced woman resides, to pay such
maintenance as determined by him as the case may be. It is, however, significant to note that Section
4 of the Act refers only to payment of 'maintenance' and does not touch upon the 'provision' to be
made by the husband referred to in Section 3(1)(a) of the Act.

25. Section 5 of the Act Provides for option to be governed by the provisions of Sections 125 to 128
Cr.P.C. It lays down that if, on the date of the first hearing of the application under Section 3(2), a
divorced woman and her former husband declare, by affidavit or any other declaration in writing in
such form as may be prescribed, either jointly or separately, that they would prefer to be governed
by the provisions of Sections 125 to 128 Cr.P.C., and file such affidavit or declaration in the Court
hearing the application, the Magistrate shall dispose of such application accordingly.

26. A reading of the Act will indicate that it codifies and regulates the obligations due to a Muslim
woman divorcee by putting them outside the scope of Section 125 Cr.P.C. as the 'divorced woman' has
been defined as "Muslim woman who was married according to Muslim law and has been divorced by
or has obtained divorce from her husband in accordance with the Muslim law". But the Act does not
apply to a Muslim woman whose marriage is solemnized either under the Indian Special Marriage Act,
1954 or a Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969 or
the Indian Special Marriage Act, 1954. The Act does not apply to the deserted and separated Muslim
wives. The maintenance under the Act is to be paid by the husband for the duration of the iddat period
and this obligation does not extend beyond the period of iddat. Once the relationship with the husband
has come to an end with the expiry of the iddat period, the

@page-SC3969

responsibility devolves upon the relatives of the divorcee. The Act follows Muslim personal law in
determining which relatives are responsible under which circumstances. If there are no relatives, or
no relatives are able to support the divorcee, then the Court can order the State Wakf Boards to pay
the maintenance.

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27. Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her husband,
a reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under
Section 3(2) the Muslim divorcee can file an application before a Magistrate if the former husband has
not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered
the properties given to her before or at the time of marriage by her relatives, or friends, or the husband
or any of his relatives or friends. Section 3(3) provides for procedure wherein the Magistrate can pass
an order directing the former husband to pay such reasonable and fair provision and maintenance to
the divorced woman as he may think fit and proper having regard to the needs of the divorced woman,
standard of life enjoyed by her during her marriage and means of her former husband. The judicial
enforceability of the Muslim divorced woman's right to provision and maintenance under Section
(3)(1)(a) of the Act has been subjected to the condition of husband having sufficient means which,
strictly speaking, is contrary to the principles of Muslim law as the liability to pay maintenance during
the iddat period is unconditional and cannot be circumscribed by the financial means of the husband.
The purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding
payment of maintenance to his erstwhile wife after divorce and the period of iddat.

28. A careful reading of the provisions of the Act would indicate that a divorced woman is entitled
to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend
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. 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 a 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 the Parliament has 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.

29. The important section in the Act is Section 3 which provides that 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. The crux of the matter is that the divorced woman shall be
entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat
period by her former husband. The wordings of Section 3 of the Act appear to indicate 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 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'. 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

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these amounts in a lump sum to his wife, in addition to having paid his wife's mahr and restored her
dowry as per Section 3(1)(c) and 3(1)(d) of the Act. Precisely, the point that arose for

@page-SC3970

consideration in Shah Bano's case was that the husband has not made a 'reasonable and fair provision'
for his divorced wife even if he had paid the amount agreed as mahr half a century earlier and provided
iddat maintenance and he was, therefore, ordered to pay a specified sum monthly to her under Section
125 Cr.P.C. This position was available to Parliament on the date it enacted the law but even so, the
provisions enacted under the Act are 'a reasonable and fair provision and maintenance to be made and
paid' as provided under Section 3(1)(a) of the Act and these expressions cover different things, firstly,
by the use of two different verbs - "to be made and paid to her within the iddat period", it is clear that
a fair and reasonable provision is to be made while maintenance is to be paid; secondly, section 4 of
the Act, which empowers the magistrate to issue an order for payment of maintenance to the divorced
woman against various of her relatives, contain no reference to 'provision'. Obviously, the right to
have 'a fair and reasonable provision' in her favour is a right enforceable only against the woman's
former husband, and in addition to what he is obliged to pay as 'maintenance'; thirdly, the words of
the Holy Quran, as translated by Yusuf Ali of 'mata' as 'maintenance' though may be incorrect and
that other translations employed the word 'provision', this court in Shah Bano's case dismissed this
aspect by holding that it is a distinction without a difference. Indeed, whether 'mata' was rendered
'maintenance' or 'provision', there could be no pretence that the husband in Shah Bano's case had
provided anything at all by way of 'mata' to his divorced wife. The contention put forth on behalf of
the other side is that a divorced Muslim woman who is entitled to 'mata' is only a single or one time
transaction which does not mean payment of maintenance continuously at all. This contention, apart
from supporting the view that the word 'provision' in Section 3(1)(a) of the Act incorporates 'mata'
as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for
the iddat period, also enables 'a reasonable and fair provision' and 'a reasonable and fair provision' as
provided under Section 3(3) of the Act would be with reference to the needs of the divorced woman,
the means of the husband, and the standard of life the woman enjoyed during the marriage and there
is no reason why such provision could not take the form of the regular payment of alimony to the
divorced woman, though it may look ironical that the enactment intended to reverse the decision in
Shah Bano's case, actually codifies the very rationale contained therein.

30. A comparison of these provisions with Section 125 Cr.P.C. will make it clear that requirements
provided in Section 125 of Cr.P.C. 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 is 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 Cr.P.C. 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 agreed that the provisions of Section 125 Cr.P.C.

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@page-SC3971

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 Cr.P.C. would now be granted under the very Act itself. This being the position,
the Act cannot be held to be unconstitutional.

32. As on the date the Act came into force the law applicable to Muslim divorced women is as declared
by this Court in Shah Bano's case. In this case to find out the personal law of Muslims with regard
to divorced women's rights, the starting point should be Shah Bano's case and not the original texts
or any other material - all the more so when varying versions as to the authenticity of the source
are shown to exist. Hence, we have refrained from referring to them in detail. That declaration was
made after considering the Holy Quran, and other commentaries or other texts. When a Constitution
Bench of this Court analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant textual
material, we do not think, it is open for us to re-examine that position and delve into a research to
reach another conclusion. We respectfully abide by what has been stated therein. All that needs to be
considered is whether in the Act specific deviation has been made from the personal laws as declared
by this Court in Shah Bano's case without mutilating its underlying ratio. We have carefully analysed
the same and come to the conclusion that the Act actually and in reality codifies what was stated in
Shah Bano's case. The learned Solicitor General contended that what has been stated in the Objects
and Reasons in Bill leading to the Act is a fact and that we should presume to be correct. We have
analysed the facts and the law in Shah Bano's case and proceeded to find out the impact of the same
on the Act. If the language of the Act is as we have stated, the mere fact that the Legislature took note
of certain facts in enacting the law will not be of much materiality.

33. In Shah Bano's case this Court has clearly explained as to the rationale behind Section 125 Cr.P.C.
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 Cr.P.C. 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 divorced Muslim woman

@page-SC3972

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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 Cr.P.C. 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.

34. 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 Bano's case. Shah Bano's 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's
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 Bano's case. Therefore, we are of the view that the contentions
advanced on behalf of the parties to the contrary cannot be

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@page-SC3973

sustained.

35. In Arab Ahemadhia Abdulla vs. Arab Bail Mohmuna Saiyadbhai AIR, 1988 Guj 141; Ali vs.
Sufaira, (1988) 3 Crimes 147; K. Kunhammed Haji v. K. Amina, 1995 Cri LJ 337 (Kerala) K.
Zunaideen v. Ameena Begum, (1981 2 DMC 468 (Mad.) Karim Abdul Rehman Shaikh v. Shehnaz
Karim Shaikh, 2000 Cri LJ 3560 (Bom.) (F.B.) and Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin
Shaikh (1999) 3 Mah LJ 694 : (1999 Cri LJ 3846) 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 (1998) 2 DMC 85 (F.B.), 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 Usman Khan Bhahamani v. Fathimunnisa Begum, 1990 Cri L.J. 1364 (Andh Pra) (F.B.); Abdul
Rashid v. Sultana Begum, 1992 Cri LJ 76 (Cal) ; Abdul Haq v. Yasim Talat; 1998 Cri LJ 3433 (Madh
Pra); Mohamed Ibrahim Ramzan, (1993) 1 DMC 60 (Mad) 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.

36. While upholding the validity of the Act, we may sum up our conclusions:

Court holds that -

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

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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.

37. In the result, the writ petition Nos. 868/96.996/86,1001/86,1055/86,1062/86, 1236/86, 1259/86
and 1281/86 challenging the validity of the provisions of the Act are dismissed.

38. All other matters where there are other questions raised, the same shall stand relegated for
consideration by appropriate benches of this Court.

Petition Dismissed .

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