LL.B.

I Term

LB – 105: Family Law – I

Cases Selected and Edited by

Usha Tandon
Kiran Gupta
Vandana
Manju Relan
P.B. Pankaja
Pinki Sharma
Neha Aneja

FACULTY OF LAW
UNIVERSITY OF DELHI, DELHI-110007
July, 2020

(For private use only in the course of instruction)

 Semester- First
Course Name- Family Law-I
Course Code- LB-105
Core course: 5 credits; Classes – 64 (4 Classes/week + Tutorial)

Course Objectives:

1. To create awareness and educate the students about rights and duties of members of
family towards each other, with special reference to spousal relationship.
2. To give overview to the students and enhance their understanding on the current laws
on marriage, divorce, maintenance, adoption and guardianship.
3. To give practical exposure to students by field visit of Family Courts, Mediation and
Conciliation Centres etc.

Course Learning Outcomes:

1. Students will be able to practice in Law Courts as a specialized Matrimonial

Lawyer.
2. Students will be able to join Research Houses, especially on issues relating to
women and children at domestic and international level.

Unit I: Marriage under Hindu Law

Concept of marriage in general: Nature of Hindu Marriage; Applicability of Legislation

(Section 2 of HMA, 1955); Conditions for the validity of marriage (sections 3 and 5 of HMA,
1955); Solemnisation of marriage with special reference to live in relationship (section 7 of
HMA, 1955 r/w Section 114 Indian Evidence Act); Registration of Marriage (section 8 of
HMA, 1955); Void marriages (sections 11 r/w 17, 18 of HMA, 1955 r/w section 494 and 495
IPC); Voidable marriage (section 12).

Case:

01 Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, 1

AIR 2001 SC 938
02 S. Nagalingam v. Sivagami (2001) 7 SCC 487 4
03 Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564 8
04 Lily Thomas v. Union of India, AIR 2000 SC 1650 12
05 Asha Qureshi v. Afaq Qureshi, AIR 2002 MP 263 23
06 Court On Its Own Motion Lajja ... vs State, 2012 (193) DLT 61 27
07 P. v. K., AIR 1982 Bom. 400 46
08 Seema v. Ashwani Kumar, (2006) 2 SCC 578 56
09 Binod Kumar Singh v. Union of India, 2019 SCC OnLine Pat 2363 60
Unit II: Matrimonial Remedies under Hindu Law

Restitution of Conjugal Rights (Section 9 of HMA, 1955); Judicial Separation [section 10

and 13 (IA) of HMA, 1955]; Divorce [sections 13(1), (2), 13 (1A), 13 A, 13B of HMA, 1955]
(a) Theories of Divorce (b) Grounds of Divorce with particular emphasis on Cruelty,
Desertion, Option of Puberty, Mutual Consent, Irretrievable Breakdown of Marriage:
Seventy-first Report of Law Commission of India; Marriage Laws Amendment Bill 2013.

Cases:
01. Kailashwati v. Ayodhia Parkash, 1977 C.L.J. 109 (P.& H.) 62
02. Swaraj Garg v. K.M. Garg, AIR 1978 Del. 296 73
03. Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562 81
04. N.G. Dastane v. S. Dastane, AIR 1975 SC 1534 88
05. Samar Ghosh v. Jaya Ghosh, 2007 (3) SCJ 253 108
06. Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 129
07. Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2213 146
08. T. Srinivasan v. T. Varalakshmi, 1 (1991) DMC 20 (Mad.) 149
09. Hirachand Srinivas Managaonkar v. Sunanda, AIR 2001 SC 1285 156
10. Sureshta Devi v. Om Prakash, 1 (1991) DMC 313 (SC) 162
11. Amardeep Singh v. Harveen Kaur AIR 2017 SC 4417 166

Unit III: Maintenance under Hindu Law

The Hindu Marriage Act, 1955, sections 24 and 25; The Hindu Adoptions and Maintenance
Act, 1956, section 18; The Criminal Procedure Code, 1973, section 125; Protection of
Women from Domestic Violence Act, 2005.

Cases:

01. D.Velusamy v. D.Patchaiammal (2010) 10 SCC 469 172

02. Badshah v. Sou. Urmila Badshah Godse & Anr(2014)1SCC188 179
03. Sanjivani Ramchandra Kondalkar v. Ramchandra Bimrao Kondalkar,
2019 SCC OnLine Bom 6581 187
04. Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694 189

Unit IV: Adoption( Read With CARA Guidelines 2017)

The Hindu Adoptions and Maintenance Act, 1956

Cases:
01. Brijendra v. State of M.P., AIR 2008 SC 1058 201
02. In Re: Adoption of Payal at Sharinee Vinay Pathak and his wife Sonika Sahay
Pathak, 2010 (1) Bom CR 434 206
03. Manju Sharma v.Vipin, MANU/DE/2061/2019 216
Unit V: Minority and Guardianship under Hindu Law
The Hindu Minority and Guardianship Act, 1956

Case:
01. Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 219

Unit VI: Sources and Schools of Muslim Law

Unit VII: Marriage under Muslim law

Nikah - Solemnisation of Marriage – conditions for validity, classification and types; Dower

Cases:
01. Ms. Ghulam Kubra Bibi v. Mohd. Shafi Mohd. Din, AIR 1940 Pesh. 231
02. Chand Patel v. Bismillah Begum, 1 (2008) DMC 588 (SC) 233

Unit VIII: Divorce under Muslim law

Extra-judicial - Talaq, Khula, Mubarat (b) Judicial - The Dissolution of Muslim Marriages
Act, 1939

Cases:
01 Shamim Ara v. State of U.P., 2002 Cr LJ 4726 (SC) 241
02 Masroor Ahmed v. Delhi (NCT) 2008 (103) DRJ 137 (Del.) 246
03 Ghulam Sakina v. Falak Sher Allah Baksh, AIR 1950 Lah. 45 259
04 A. Yousuf Rawther v. Sowramma, AIR 1971 Ker. 261 263
05 Itwari v. Asghari, AIR 1960 All. 684 273
06 Shayara Bano v. UOI, SC, decided on 22 August, 2017

Unit IX: Maintenance under Muslim law

Cases:
01. Danial Latifi v. Union of India (2001) 7 SCC 740 280
02. Rana Nahid and Ors. v. Sahidul Haq, MANU/SC/0487/2020 295
Suggested Readings:

Prescribed Legislations:

1. The Family Court Act, 1984

2. The Hindu Marriage Act, 1955
3. Prohibition of Child Marriages Act, 2006
4. Protection of Women from Domestic Violence Act, 2005.
5. The Hindu Adoptions and Maintenance Act, 1956
6. The Hindu Minority and Guardianship Act, 1956
7. The Muslim Personal Law (Shariat) Application Act, 1937
8. The Dissolution of Muslim Marriages Act, 1939
9. The Muslim Woman (Protection of Rights on Divorce) Act, 1986
10. The Muslim Women (Protection of Rights on Marriage) Act, 2019

Prescribed Books:

1. Ranganath Misra (Rev.), Mayne’s Treatise on Hindu Law & Usage

2. Satyajeet A. Desai, Mulla’s Principles of Hindu Law
3. Paras Diwan, Law of Marriage and Divorce
4. M. Hidayatulla and Arshad Hidayatulla, Mulla’s Priciples of Mohomedan Law
5. Tahir Mahmood, Fyzee’s Outlines of Muhammedan Law

Teaching Plan:

Week 1: Marriage under Hindu Law

Week 2: Marriage under Hindu Law
Week 3: Marriage under Hindu Law
Week 4: Marriage under Hindu Law
Week 5: Restitution of Conjugal Rights and Judicial Separation under Hindu Law
Week 6: Divorce under Hindu Law
Week 7: Divorce under Hindu Law
Week 8; Maintenance under Hindu Law
Week 9: Maintenance and Adoption under Hindu Law
Week 10: Adoption, Minority and Guardianship under Hindu Law
Week 11: Sources and Schools of Muslim law; Marriage under Muslim law
Week 12: Marriage under Muslim law (Classification of Marriage)
Week 13: Divorce under Muslim law
Week 14: Divorce under Muslim law
Week 15: Maintenance under Muslim Law
Week 16: Maintenance under Muslim Law
 Mt. Ghulam Kubra Bibi v. Mohammad Shafi Mohammad Din
AIR 1940 Pesh. 2

MIR AHMAD, J. – Mohammad Shafi sued Mt. Ghulam Kubra fcr restitution of conjugal
rights. He also impleaded her parents and asked that an injunction should be issued against
them to restrain them from interfering in his marital relations with his wife. The defence
taken by Mt. Ghulam Kubra was that she was never married to Mohammad Shafi. There was
also a question whether the woman was of age at the time when she was married. Evidence
was led by either side. The Mullah appeared and he said that he read the nikah at the instance
of the grandfather of the girl. He categorically denied that anyone was sent to the girl to
enquire from her whether she agreed to the marriage. One Mistri Abdul Karim, on the other
hand, vaguely deposed that there were two witnesses of the nikah. He did not give their
names. Two witnesses, Mohammad Ramzan and Mohammad Din were produced who alleged
that they were the witnesses of the nikah. They were again laconic, because they stopped at
that, and did not give any detail as to what was done by them. Mohammad Ramzan admitted
that he was the neighbour of the plaintiff. Mohammad Din did not deny that the plaintiff was
working with him for the last 8 or 9 years.
The trial Judge held that the girl was of age when she was married. He was of the view
that the marriage had been proved. He, therefore, granted a decree as prayed for against all
the defendants. An appeal was preferred to the District Court. It was admitted by both the
parties before the learned Additional Judge that the girl was of age when the marriage was
held. The Judge maintained the decree for restitution of conjugal rights. But he did not think
it necessary to issue an injunction to the parents of the girl. He, therefore, accepted the appeal
to this extent, that he set aside the portion of the order relating to injunction. Mt. Ghulam
Kubra has come upon further appeal to this Court against the decree granting restitution of
conjugal rights. Mohammad Shafi has also come up on appeal with a request that the order
issuing injunction should be restored. This judgment will cover both the cases.
According to Mahomedan law, it is absolutely necessary that the man or someone on his
behalf and the woman or someone on her behalf should agree to the marriage at one meeting,
and the agreement should be witnessed by two adult witnesses. As women are in pardah in
this part of the country it is customary to send a relation of the woman to her inside the house
accompanied by two witnesses. The relation asks the girl within the hearing of the witnesses
whether she authorizes him to agree to the marriage on her behalf for the dower money
offered by the husband. He explains to her the detail of the dower proposed. When the girl
says “yes” or signifies her consent by some other method, the three persons come out. The
future husband and those three persons are then placed before the Mullah. The Mullah asks
the boy whether he offers to marry the girl on payment of the specified dower. He says “yes”.
Then the relation, who had gone inside, tells the Mullah that he is the agent of the girl. The
Mullah asks him whether he agrees to the marriage on payment of the specified dower. The
relation says “yes”. The witnesses are present there so that if the Mullah has any doubt he
should question them as to whether the relation is a duly authorized agent of the girl. Directly
both sides have said “yes” the Mullah reads the scriptures and the marriage is complete.
232

I have been at pains to describe the method which is usually adopted in this part of the
country for effecting a marriage in order to show that the vague allegation that there were two
witnesses of the nikah has no value and that it should be proved that the whole procedure has
been gone through: in particular when the man who read the nikah is positive that no one was
sent to the girl to enquire from her whether she was a willing party. It is on the record that the
girl was 17 years of age when her marriage was solemnised. It appears that the parties did not
know then that according to Mahomedan law a girl becomes major for the purposes of
marriage when she reaches the age of puberty, which is presumed to be the age of 15 years. I
think they were under the impression that she could not be major up to 18 years of age, as is
the general law, and I guess that the girl was, therefore, given away by the grandfather and
not personally consulted. For when a girl is minor it is permissible in Mahomedan law that
her father or grandfather or other paternal relations should give her away. The marriage is
valid and is called a nikah all the same.
It is interesting in this connection to point out that such nikah also requires two adult
witnesses. The witnesses produced in this case have only said that they were the witnesses of
the nikah. Who knows whether they were not the witnesses of the giving away of the girl by
the grandfather. For the reasons given above I hold that no valid marriage has taken place in
this case, and that the plaintiff has, therefore, no right to sue for restitution of conjugal rights.
The appeal of Mt. Ghulam Kubra is accepted and the suit of Mohammad Shafi is dismissed
with costs throughout. The appeal of Mohammad Shafi is dismissed.

*****
 Chand Patel v. Bismillah Begum
1 (2008) DMC 588 (SC)

ALTAMAS KABIR,J. - 2. The application for condonation of delay in filing the Special
Leave Petition is allowed and the delay in filing the same is condoned.
3. This appeal raises an interesting question of law as to whether a marriage performed
by a person professing the Muslim faith with his wife’s sister, while his earlier marriage
with the other sister was still subsisting, would be void in law or merely irregular or
voidable even though the subsequent marriage may have been consummated.
4. The facts which give rise to the aforesaid question, in brief, are set out hereunder.
5. The respondent No.1 herein, Bismillah Begum, filed an application for her
maintenance and for the maintenance of her minor daughter, Taheman Bano, under Section
125 of the Code of Criminal Procedure, against one Chand Patel, in the Court of the Judicial
Magistrate, First Class, Chincholi, being Criminal Misc. No.6 of 2001. In her petition she
claimed that she was the legally wedded wife of the appellant herein and that her marriage
with the appellant had taken place about eight years prior to the filing of the said petition.
Her further case was that the marriage was consummated and two years after the marriage a
daughter was born from the wedlock and she has been made petitioner No.2 in the
application for maintenance. The petitioner No.2 Taheman Bano being a minor, is under the
care and guardianship of her mother, the petitioner No.1, in the said application. 6. In her
petition the respondent No.1 herein categorically admitted that the appellant herein was
married to her elder sister, Mashaq Bee, and that the appellant, with the consent of his first
wife married the respondent No.1 and a Nikahnama was also executed but the same had
been misplaced. It was also admitted that the appellant herein lived with his first wife Mashaq
Bee and the respondent No.1 under one roof and the appellant had even accepted the
petitioner No.2 as his daughter and had brought her up.
7. That with the passage of time the relationship between the appellant and the
respondent No.1 began to deteriorate and he started neglecting the respondents who have no
means to support themselves. The respondent No.1 prayed for maintenance for herself and for
her minor daughter @ Rs.1,000/- per month for each of them from the date of filing of the
petition.
8. The case made out on behalf of the respondent No.1 was denied on behalf of the
appellant herein. He categorically denied that he had married the respondent No.1. The
defence put up by the appellant was not accepted by the learned Trial Court, which prima
facie came to a finding that the respondent No.1 was, in fact, the wife of the appellant and
that the petitioner No.2 is his daughter. The Trial Court also came to the finding that the
appellant had neglected the respondents and had failed to maintain them, which he was in law
required to do, and accordingly, directed the appellant to pay Rs.1,000 per month to the
respondent No.1 towards her life support maintenance and to the respondent No.2 till she
reached adulthood.
9. The aforesaid decision was challenged by the appellant herein in the revision filed by
him, being Criminal Revision No.76 of 2003, in the Court of the District and Sessions Judge
234

at Gulbarga. The respondent No.1 herein, both on her own behalf and on behalf of her minor
daughter, also filed Criminal Revision No.96 of 2003 before the same learned Judge and both
the revision petitions were taken up together for disposal and wee disposed of by a common
order. After considering several decisions of different High Courts and this Court the learned
Fourth Additional District Judge, Gulbarga, dismissed both the revision petitions and
confirmed the order passed by the Judicial Magistrate, First Class, Chincholi, in Criminal
Misc. No.6 of 2001. While arriving at the aforesaid decision, the learned revisional Court
held that the personal law of the parties could not come in the way of a Muslim to pray for
and obtain maintenance under Section 125 of the Code of Criminal Procedure since an
obligation is cast upon the appellant herein to maintain his wife and children till the marriage
between them was declared null and void by a competent court. While referring to various
decisions of different High Courts, the revisional Court relied to a large extent on a decision
of this Court in the case of Nanak Chand v. Chandra Kishore Aggarwal [AIR 1970 SC 446]
in which it was, inter alia, held that Section 488 of the old Code which corresponds to Section
125 of the new Code is applicable to all persons belonging to all religions and has no
relationship to the personal law of the parties. The learned Judge also referred to the decision
of this Court in the case of Re Hussain Saheb [1985 Cri LJ 1505 (A.P.) (W.P. No.858 of
1985)] wherein it was held that the provisions of maintenance of a divorced wife under
Section 125 of the Code of Criminal Procedure could not be struck down on the ground of
inconsistency between the said provisions and the personal laws of the parties. On the basis
of the above, the learned Additional Sessions Judge held as follows:Thus in the above said
dictum the personal law of the Muslim no way coming in the way of right to maintenance of
the respondent. Moreover the Magistrate cannot go into validity of the marriage while dealing
under Section 125 of Cr.P.C. The petitioner must maintain the wife and children till the
marriage between them declares null and void by the competent court. Therefore, by relying
upon the rulings of the Hon’ble Supreme Court the marriage between the petitioner and
respondent No.1 is presumed to be legal and validity of the marriage cannot be decided under
proceedings u/sec. 125 of Cr.P.C. or Section 391 of Cr.P.C. Therefore, I do not find any
illegality or irregularity committed by the Magistrate while granting maintenance to the
respondents. Hence I answer Point no.1 and 2 in the negative.
10. Subsequently, the appellant herein filed an application under Section 482 of the
Criminal Procedure Code for setting aside the order dated 28.6.2003 passed by the Judicial
Magistrate 1st Class in Criminal Misc. No.6 of 2001. From the order disposing of the said
petition it is apparent that the High Court had occasion to look into the orders passed both by
the Trial Court as well as the revisional Court and after considering the same was of the view
that there was no merit in the petition and dismissed the appellant’s application under Section
482 of the said Code.
11. Much the same arguments as had been advanced before the Courts below have been
advanced on behalf of the respective parties in these proceedings.
12. On behalf of the appellant it has been urged that the Muslim law specifically prohibits
‘unlawful conjunction’ which has been interpreted to mean that a man could not marry his
wife’s sister in his wife’s life time. It was urged that in the instant case the appellant had
from the very initial stage denied having married the respondent No.1 herein, who is his
 235

wife’s younger sister and that he did not have any sexual relations with her, thereby
disputing the paternity of the respondent No.2 through him. It was also submitted that since
such unlawful conjunction is prohibited, even if the marriage had been performed the same
was void in law and did not confer any rights either on the respondent No.1 or on respondent
No.2 since from the very inception the marriage was void and invalid.
13. In support of his aforesaid contention Mr.Raja Venkatappa Naik, learned counsel for the
appellant, firstly referred to the decision of this Court in Rameshchandra Rampratapji Daga
v. Rameshwari Rameshchandra Daga [(2005) 2 SCC 33], in which this Court had occasion
to consider, inter alia, the provisions of Sections 11 and 12 as also Section 5(i) of the Hindu
Marriage Act, 1955. The facts of the said case are to some extent similar to the facts of this
case, although, the same involved the provisions of the Hindu Marriage Act, 1955. In the said
case the wife was first married to someone but according to her the customary rituals of the
marriage had not been completed, inasmuch as, during the marriage ceremony the family
members quarrelled over dowry. She, thereafter, filed a petition for divorce but did not
prosecute the same and no decree of divorce was passed in the said proceedings. However, in
accordance with the prevalent customs in the Maheshwari community, a chhor chithhi or a
document of dissolution of marriage was executed between the wife and the said person and
it was also registered. The said documents were shown and also given to the person with
whom the second marriage was performed and a daughter was also born from the second
marriage. According to the wife, her second husband began to ill treat her, and, ultimately,
she had to file proceedings in the Family Court for grant of a decree of judicial separation and
maintenance of Rupees three thousand per month both for herself and for her minor daughter.
The second husband filed a counter petition seeking a declaration that his marriage with his
present wife was a nullity on the ground that on the date of the second marriage her earlier
marriage with her previous husband had not been dissolved by any Court in accordance with
the provisions of the Hindu Marriage Act, 1955. The Family Court allowed the petition of the
wife and granted a decree of judicial separation as also the maintenance claimed by her and
dismissed the counter petition filed by the husband. The High Court, however, reversed the
finding of the Family Court and held that since the first marriage of the present wife with the
previous husband had not been dissolved by the Court, the second marriage was in
contravention of Section 5(i) of the aforesaid Act and was, therefore, a nullity under Section
11 of the Act. The High Court granted a decree of separation holding that the marriage was a
nullity, though it maintained the decree granted in respect of maintenance to the respondent
No.1 and her daughter.
14. Dismissing the two appeals preferred both by husband and the wife, the Supreme
Court held that in the facts of the case the Courts below were fully justified in granting
maintenance both to the wife and the daughter since the evidence of the wife had been rightly
believed by the Courts below. The High Court accepted the validity of the document of
dissolution of marriage executed between the parties and also took into consideration the fact
that they had lived as husband and wife for about 9 years. On such consideration, both the
appeals came to be dismissed.
15. Mr. Naik also relied on another decision of this Court in the case of Savitaben
Somabhai Bhatiya v. State of Gujarat [(2005) 3 SCC 636], in which it was observed that the
236

legislature had considered it necessary to include within the scope of Section 125 of the Code
an illegitimate child, but it had not done so in respect of a woman not lawfully married. It
was observed that however desirable it may be, to take note of the plight of the unfortunate
woman, the legislative intent being clearly reflected in Section 125 of the Code, there was no
scope for enlarging its scope by introducing any artificial definition to include a woman not
lawfully married in the expression “wife”.
16. On the basis of the aforesaid two decisions, learned counsel for the appellant
submitted that having regard to the letter and spirit of Section 125 of the Code, the Courts
below had erred in granting maintenance to the respondent No.1 when her marriage itself was
void from its very inception.
17. Mrs. K. Sarada Devi, learned counsel for the respondents, however, questioned the
decision of the High Court on the ground that in a proceeding under Section 125 of the Code,
the Court was not required to adjudicate upon the validity of a marriage and on a prima facie
view it could pass an order for maintenance of both the wife and her daughter. She however,
also contended that the marriage between the parties had been solemnised inspite of the
existing facts which were known to both the parties. She urged that it was the appellant who,
despite having married her elder sister, not only chose to marry the respondent No.1 as well,
but was now taking recourse to technicality to avoid payment of maintenance which he was
required to pay under the provisions of Section 125 of the Code.
18. She urged that till such time as the marriage between the appellant and the respondent
No.1 was not declared to be void by a competent Court of law, it continued to subsist and all
rights flowing from a valid marriage continued to be available to the respondent No.1 and her
minor daughter till such time a competent Court of law directed such marriage to be invalid
and void.19. The answer to the question, which we are called upon to answer in this case, will
depend on the legal status of the union effected by the appellant with the respondent No.1.
Though the factum of marriage between them was denied by the appellant, the courts below
negated the appellant’s case and proceeded on the basis that a marriage had been performed
between them. If the marriage which was said to have been performed between the appellant
and the respondent No.1 is held to be void then, in such event, the respondent No.1 will not
be entitled to maintenance from the appellant under Section 125 Cr.P.C. If, on the other
hand, the marriage is held to be irregular, then in such event, the marriage will subsist for all
purposes, unless declared to be void by a competent court. Till such a declaration is made,
along with the respondent No.2, the respondent No.1 will also be entitled to maintenance
under Section 125 Cr.P.C. Although, the law applicable in this case is under the personal law
of Muslims, it has many similarities with the provisions of Sections 11 and 12 of the Hindu
Marriage Act, 1955. Section 11 of the 1955 Act, defines “Void Marriages” and provides that
any marriage solemnized after the commencement of the Act shall be null and void and on a
petition presented by either party thereto, be so declared by a decree of nullity if it
contravened any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 of the
Act. In Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav [AIR 1988 SC 644], this
Court had held that marriages covered by Section 11 are void ipso-jure, that is void from the
very inception and have to be ignored as not existing in law at all. A marriage in
contravention of Section 11 must be treated as null and void from its very inception.
 237

20. Section 12 of the 1955 Act defines “voidable marriages” and provides that any
marriage solemnized before or after the commencement of the Act shall be voidable and may
be annulled by a decree of nullity on any of the grounds enumerated in the Section. In the
case of a marriage covered by Section 12 of the 1955 Act, the marriage is not void ipso-jure
from its inception, but a decree would have to be obtained from the competent court declaring
the marriage to be void and so long as such declaration is not made, the marriage will
continue to subsist.
21. Under the Muslim law also a distinction has been drawn between void marriages and
irregular marriages. The same has been dealt with in Mulla’s Principles of Mahomedan Law
in paragraphs 260 to 264. Paragraphs 260, 261 and 262 deal with complete prohibition of
marriage between a man and the persons included therein and any marriage in violation of
such provision would be void from its very inception (batil). Paragraph 263 which is relevant
for our purpose reads as follows:-“263. Unlawful conjunction - A man may not have at the
same time two wives who are so related to each other by consanguinity, affinity and
fosterage, that if either of them had been a male, they could not have lawfully intermarried, as
for instance, two sisters, or aunt and niece. The bar of unlawful conjunction renders a
marriage irregular, not void.”
22. The above provision fell for the consideration of different High Courts and the
earliest decision is that of the Calcutta High Court in the case of Aizunnissa v. Karimunissa
[(ILR (1895) 23 Cal. 130] which was decided on 23rd July, 1895. After discussing the various
authorities on the subject the Calcutta High Court took the view that a marriage with a wife’s
sister while the earlier marriage was still subsisting was void and the children of such
marriage were illegitimate and were not entitled to inherit. It was held that the sister of a
person’s wife was prohibited from the very inception and a marriage contracted with her
would from the very inception be void (batil).
23. The said decision subsequently came to be considered by the Bombay High Court in
the case of Tajbi Abalal Desai v. Mowla Alikhan Desai [39 IC 1917] and was decided on 6th
February, 1917. The Bombay High Court differed with the decision rendered in Aizunnissa’s
case (supra) and placing reliance on the views expressed in Fatawa-i-Alamgiri held that a
marriage with the sister of an existing wife was not void (batil) but irregular (fasid). The
reasoning adopted was that marriage with a permanently prohibited woman had always been
considered by the exponents of Muslim law to be void and has no legal consequence, but
marriage with a temporarily prohibited woman if consummated may have legal
consequences. The logic behind the aforesaid reasoning was that a marriage with the sister of
an existing wife could always become lawful by the death of the first wife or by the husband
divorcing his earlier wife and thereby making the marriage with the second sister lawful to
himself. The Bombay High Court after considering various authorities, and in particular
Fatawa-i-Alamgiri, ultimately observed as follows:-
Taking the whole current of authority and the general trend of informed thought
on this subject, it points clearly to some such distinctions having always been
recognized by the Muhammadan Law. Where that is so and a particular case on the
borderland of such distinctions, to which it may be doubtful whether they can be
applied in the ordinary way, arises, surely the Courts would be well advised to accept
238

the authoritative statement of the law as it was then understood by the authors of the
Fatawa-i-Alamgiri. It is impossible to say that that statement conflicts with the
textual authority of the Kuran. Speaking generally, it appears to us to harmonize with
the course the law took during the intervening period, and to be in consonance with
the soundest practical principles. It has the support of such a great modern text-book
writer as Baillie. The eighth chapter of his first book appears to us to reach
conclusions by unanswerable reasoning, and while those conclusions may be his
own, they are the conclusions of a writer of profound knowledge intimately versed at
first hand with all the best writings of Muhammadan lawyers. The modern
Muhammadan text-book writers, Ameer Ali, Tyabji and Abdur Rahim, are in
substantial agreement. All authority appears to us to point one way. Against this is
nothing but the judgment of the Calcutta High Court in Aizunnissa’s case and after
having given it and the materials upon which it avowedly rests our most careful and
respectful attention, we find ourselves wholly unconvinced by its reasoning and
unable to agree with the law it lays down.24. The aforesaid question also fell for the
consideration of the Oudh Chief Court in the case of Mussammat Kaniza v. Hasan
Ahmad Khan [92 IC1926] decided on 24th November, 1925 and by the Lahore High
Court in Taliamand v. Muhammad Din [129 IC 1931] decided on 16th July, 1930,
and also by the Madras High Court in Rahiman Bibi Saheba v. Mahboob Bibi
Saheba [ILR 1938 page 278] which was decided on 1st September, 1937. All the
said courts favoured the view taken by the Bombay High Court in Tajbi case and
were of the view that the decision of the Calcutta High Court in Aizunnissa Khatun
case was incorrect.
25. Paragraph 264 which deals with the distinction between void and irregular
marriages reads as follows:-264. Distinction between void and irregular marriages(1)
A marriage which is not valid may be either void or irregular
(2) A void marriage is one which is unlawful in itself the prohibition against the
marriage being perpetual and absolute. Thus a marriage with a woman prohibited by
reason of consanguity, affinity, or fosterage is void, the prohibition against marriage with
such a woman being perpetual and absolute.
(3) An irregular marriage is one which is not unlawful in itself, but unlawful “for
something else,” as where the prohibition is temporary or relative, or when the
irregularity arises from an accidental circumstance, such as the absence of witnesses.
Thus the following marriages are irregular, namely
(a) a marriage contracted without witness;
(b) a marriage with a fifth wife by a person having four wives;
(c) a marriage with a woman undergoing iddat;
(d) a marriage prohibited by reason of difference of religion;
(e) a marriage with a woman so related to the wife that if one of them had been a
male, they could not have lawfully intermarried.
The reason why the aforesaid marriages are irregular, and not void, is that in cl.(a)
the irregularity arises from a accidental circumstance; in cl. (b) the objection may be
removed by the man divorcing one of his four wives; in cl. (c) the impediment ceases on
 239

the expiration of the period iddat; in cl.(d) the objection may be removed by the wife
becoming a convert to the Mussalman, Christian or Jewish religion, or the husband
adopting the Moslem faith; and in cl(e) the objection may be removed by the man
divorcing the wife who constitutes the obstacle; thus if a man who has already married
one sister marries another, he may divorce the first, and make the second lawful to
himself.
26. Paragrph 266 deals with the effects of a void (batil) marriage and provides that a
void marriage is no marriage at all. It does not create any civil rights or obligations
between the parties. The offspring of a void marriage are illegitimate. Paragraph 267
which deals with the effects of irregular (fasid) marriages reads as follows:-267.
Effect of an irregular (fasid) marriage
(1) An irregular marriage may be terminated by either party, either before or after
consummation, by words showing an intention to separate, as where either party says to
the other “I have relinquished you”. An irregular marriage has no legal effect before
consummation.
(2) If consummation has taken place
(i) the wife is entitled to dower, proper or specified, whichever is less;
(ii) she is bound to observe the iddat, but the duration of the iddat both on divorce
and death is three courses;
(iii) the issue of the marriage is legitimate. But an irregular marriage, though
consummated, does not create mutual rights of inheritance between husband and wife
(Baillie, 694, 701).
27. On consideration of the decisions of the various High Courts referred to hereinabove
and the provisions relating to void marriages and marriages which are merely irregular, we
are also of the view that the decision rendered by the Bombay High Court in the case of
Tajbi’s case is correct. Since a marriage, which is temporarily prohibited may be rendered
lawful once the prohibition is removed, such a marriage is in our view irregular (fasid) and
not void (batil).
28. The answer to the question raised at the very outset, therefore, is that the bar of
unlawful conjunction (jama bain-al-mahramain) renders a marriage irregular and not void.
Consequently, under the Hanafi law as far as Muslims in India are concerned, an irregular
marriage continues to subsist till terminated in accordance with law and the wife and the
children of such marriage would be entitled to maintenance under the provisions of Section
125 of the Code of Criminal Procedure.
29. The decisions cited during the hearing of this case do not really come to the aid of the
parties, except to the extent that a marriage which is merely irregular or voidable continues to
subsist till it is set aside or declared to be void in accordance with law.
30. In view of what has been stated hereinabove, we hold that the unlawful conjunction
and/or marriage between the appellant and respondent No.1 continues to subsist not having
been declared void by any competent forum and that accordingly, the respondent No.1 and
the respondent No.2 will both be entitled to maintenance under Section 125 of the Code of
Criminal Procedure. There is, therefore, no reason to interfere with the order passed on
240

20.6.2005 by the Karnataka High Court in Criminal Petition No. 3002 of 2004 or that of the
Judicial Magistrate, First Class, Chincholi, on 28.6.2003 in Criminal Misc. No. 6 of 2001.
The appeal is accordingly dismissed and the interim stay granted on 14.8.2006 is vacated.
31.The appellant shall pay to the respondents all the arrears of maintenance, within a
period of six months from the date of this Judgment and will also go on paying the current
maintenance with effect from the month of March, 2008.

*****
 241

Shamim Ara v. State of U.P.

2002 Cri. L.J. 4726 (SC)

R.C. LAHOTI, J. – Shamim Ara, the appellant and Abrar Ahmed, the respondent No. 2
were married some time in 1968 according to Muslim Shariyat Law. Four sons were born out
of the wedlock. On 12.4.1979, the appellant, on behalf of herself and for her two minor
children, filed an application under Section 125, Cr.P.C. complaining of desertion and cruelty
on the part of respondent No. 2 with her. By order dated 3.4.1993 the learned Presiding
Judge of the Family Court at Allahabad refused to grant any maintenance to the appellant on
the ground that she was already divorced by the respondent and hence not entitled to any
maintenance. However, maintenance at the rate of Rs. 150/- per month was allowed for one
son of the appellant for the period during which he remained a minor, the other one having
become major during the pendency of the proceedings.
2. The respondent No. 2 in his reply (written statement) dated 5.12.1990, to the
application under Section 125, Cr.P.C. denied all the averments made in the application. One
of the pleas taken by way of additional pleas is that he had divorced the appellant on
11.7.1987 and since then the parties had ceased to be spouses. He also claimed protection
behind the Muslim Women (Protection of Rights on Divorce) Act, 1986 and submitted that
the respondent No. 2 had purchased a house and delivered the same to the appellant in lieu of
Mehar (Dower), and therefore, the appellant was not entitled to any maintenance. No
particulars of divorce were pleaded excepting making a bald statement as already stated
hereinabove.
3. The appellant emphatically denied having been divorced at any time. The respondent
No. 2, when he appeared in the witness-box, stated having divorced the appellant on
11.7.1987 at 11 a.m. in the presence of Mehboob and other 4-5 persons of the neighbourhood.
He further stated that since 1988 he had not paid anything either to the appellant or to any of
the four sons for their maintenance. The divorce said to have been given by him to the
appellant was a triple talaq though such a fact was not stated in the written statement.
4. The Family Court in its order dated 3.4.1993 dealt with and upheld a strange story of
divorce totally beyond the case set up by the respondent No. 2. The learned Presiding Judge
referred to some affidavit dated 31.8.1988 said to have been filed by the respondent No. 2 in
some civil suit details whereof are not available from the record of the present case but
certainly to which litigation the appellant was not a party. In that affidavit it was stated by
the respondent No. 2 that he had divorced the applicant 15 months before. The learned Judge
held that from such affidavit the plea of the respondent No. 2 found corroboration of his
having divorced the appellant. The learned Judge concluded that the appellant was not
entitled to any maintenance in view of her having been divorced.
5. The appellant preferred a revision before the High Court. The High Court held that the
divorce which is alleged to have been given by the respondent No. 2 to the appellant was not
given in the presence of the appellant and it is not the case of the respondent that the same
was communicated to her. But the communication would stand completed on 5.12.1990 with
242

the filing of the written statement by the respondent No. 2 in the present case. Therefore, the
High Court concluded that the appellant was entitled to claim maintenance from 1.1.1988 to
5.12.1990 (the later date being the one on which reply to application under Section 125,
Cr.P.C. was filed by the respondent No. 2 in the Court) whereafter her entitlement to have
maintenance from respondent No. 2 shall cease. The figure of maintenance was appointed by
the High Court at Rs. 200/-.
6. The appellant has filed this appeal by special leave. The singular issue arising for
decision is whether the appellant can be said to have been divorced and the said divorce
communicated to the appellant so as to become effective from 5.12.1990, the date of filing of
the written statement by the respondent No. 2 in these proceedings.
7. None of the ancient holy books or scriptures of Muslims mentions in its text such a
form of divorce as has been accepted by the High Court and the Family Court. No such text
has been brought to our notice which provides that a recital in any document, whether a
pleading or an affidavit, incorporating a statement by the husband that he has already
divorced his wife on an unspecified or specified date even if not communicated to the wife
would become an effective divorce on the date on which the wife happens to learn of such
statement contained in the copy of the affidavit or pleading served on her.
The statement of law by Mulla as contained in para 310 and footnotes thereunder is based
on certain rulings of Privy Council and the High Courts. The decision of A.P. High Court in
(1975) 1 APLJ 20 has also been cited by Mulla in support of the proposition that the
statement by husband in pleadings filed in answer to petition for maintenance by wife that he
had already divorced the petitioner (wife) long ago operates as divorce.
11. V. Khalid, J., as His Lordship then was, observed in Mohammed Haneefa v.
Pathummal Beevi [1972 Ker LT 512]:
I feel it my duty to alert public opinion towards a painful aspect that this case reveals.
A Division Bench of this Court, the highest Court for this State, has clearly indicated the
extent of the unbridled power of a Muslim husband to divorce his wife. I am extracting
below what Their Lordships have said in Pathayi v. Moideen (1968 Ker LT 763):
The only condition necessary for the valid exercise of the right of divorce by a
husband is that he must be a major and of sound mind at that time. He can effect divorce
whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in
anger that is considered perfectly valid. No special form is necessary for effecting
divorce under Hanafi law… The husband can effect it by conveying to the wife that he is
repudiating the alliance. It need not even be addressed to her. It takes effect the moment
it comes to her knowledge.
Should Muslim wives suffer this tyranny for all times? Should their personal law
remain so cruel towards these unfortunate wives? Can it not be amended suitably to
alleviate their sufferings? My judicial conscience is disturbed at this monstrosity. The
question is whether the conscience of the leaders of public opinion of the community will
also be disturbed (p. 514).
12. In an illuminating judgment, virtually a research document, the eminent Judge and
jurist V.R. Krishna Iyer, J., as His Lordship then was, has made extensive observations. The
 243

judgment is reported as A. Yousuf Rawther v. Sowramma [AIR 1971 Ker. 261]. It would
suffice for our purpose to extract and reproduce a few out of the several observations made
by His Lordship:
The interpretation of a legislation, obviously intended to protect a weaker section of
the community, like women, must be informed by the social perspective and purpose and,
within its grammatical flexibility, must further the beneficent object. And so we must
appreciate the Islamic ethos and the general sociological background which inspired the
enactment of the law before locating the precise connotation of the words used in the
statute” (para 6).
Since infallibility is not an attribute of the judiciary, the view has been ventured by
Muslim Jurists that the Indo-Anglian judicial exposition of the Islamic Law of Divorce
has not exactly been just to the Holy Prophet or the Holy Book. Marginal distortions are
inevitable when the Judicial Committee in Downing Street has to interpret Manu and
Muhammad of India and Arabia. The soul of a culture – law is largely the formalized
and enforceable expression of a community’s cultural norms – cannot be fully understood
by alien minds. The view that the Muslim husband enjoys an arbitrary, unilateral power
to inflict instant divorce does not accord with Islamic injunctions. (para 7)
It is a popular fallacy that a Muslim man enjoys, under the Quaranic Law, unbriddled
authority to liquidate the marriage. The whole Quran expressly forbids a man to seek
pretexts for divorcing his wife, so long as she remains faithful and obedient to him. “If
they (namely, women) obey you, then do not seek a way against them.” (Quran IV: 34).
The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the
wife, by her indocility or her bad character, renders the married life unhappy, but in the
absence of serious reasons, no man can justify a divorce, either in the eye of religion or
the law. If he abandons his wife or puts her away in simple caprice, he draws upon
himself the divine anger, for the curse of God, said the Prophet, rests on him who
repudiates his wife capriciously. (para 7)
Commentators on the Quran have rightly observed – and this tallies with the law now
administered in some Muslim countries like Iraq – that the husband must satisfy the
Court about the reasons for divorce. However, Muslim Law, as applied in India, has
taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and
the same misconception vitiates the law dealing with the wife’s right to divorce. (para 7)
After quoting from the Quran and the Prophet, Dr. Galwash concludes that “divorce
is permissible in Islam only in cases of extreme emergency. When all efforts for
effecting a reconciliation have failed, the parties may proceed to a dissolution of the
marriage by Talaq or by ‘Khula’ … Consistently with the secular concept of marriage
and divorce, the law insists that at the time of Talaq the husband must pay off the
settlement debt to the wife and at the time of Khula she has to surrender to the husband
her dower or abandon some of her rights, as compensation. (para 7)
13. There is yet another illuminating and weighty judicial opinion available in two
decisions of Gauhati High Court recorded by Baharul Islam, J. sitting singly in Jiauddin
Ahmed v. Anwara Begum [(1981) 1 GLR 358] and later speaking for the Division Bench in
Rukia Khatun v. Abdul Khalique Laskar [(1981) 1 GLR 375]. In Jiauddin Ahmed case, a
plea of previous divorce, i.e., the husband having divorced the wife on some day much
244

previous to the date of filing of the written statement in the Court was taken and upheld. The
question posed before the High Court was whether there has been valid talaq of the wife by
the husband under the Muslim Law? The learned Judge observed that though marriage under
the Muslim Law is only a civil contract yet the rights and responsibilities consequent upon it
are of such importance to the welfare of humanity, that a high decree of sanctity is attached to
it. But in spite of the sacredness of the character of the marriage-tie, Islam recognizes the
necessity, in exceptional circumstances, of keeping the way open for its dissolution. [Para 6].
Quoting in the judgment several Holy Quranic verses and from commentaries thereon by
well-recognized scholars of great eminence, the learned Judge expressed disapproval of the
statement that “the whimsical and capricious divorce by the husband is good in law, though
bad in theology” and observed that such a statement is based on the concept that women were
chattel belonging to men, which the Holy Quran does not brook. The correct law of talaq as
ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by
attempts at reconciliation between the husband and the wife by two arbiters – one from the
wife’s family and the other from the husband’s; if the attempts fail, talaq may be effected
(para 13). In Rukia Khatun case, the Division Bench stated that the correct law of talaq, as
ordained by Holy Quran is (I) that ‘talaq’ must be for a reasonable cause; and (ii) that it must
be preceded by an attempt of reconciliation between the husband and the wife by two
arbiters, one chosen by the wife from her family and the other by the husband from his. If
their attempts fail, ‘talaq’ may be effected. The Division Bench expressly recorded its dissent
from the Calcutta and Bombay view which in their opinion, did not lay down the correct law.
14. We are in respectful agreement with the abovesaid observations made by the learned
Judges of High Courts. We must note that the observations were made 20-30 years before
and our country has in recent times marched steps ahead in all walks of life including
progressive interpretation of law which cannot be lost sight of except by compromising with
regressive trends. What this Court observed in Bai Tahira v. Ali Hussain [AIR 1979 SC
362] dealing with right to maintenance of a muslim divorcee is noteworthy. To quote:
The meaning of meanings is derived from values in a given society and its legal
system. Article 15(3) has compelling compassionate relevance in the context of S.
125 and the benefit of doubt, if any, in statutory interpretation belongs to the ill-used
wife and the derelic divorcee. This social perspective granted, the resolution of all
the disputes projected is easy. Surely, Parliament, in keeping with Art. 15(3) and
deliberate by design, made a special provision to help women in distress cast away by
divorce. Protection against moral and material abandonment manifest in Art. 39 is
part of social and economic justice, specificated in Art. 38, fulfilment of which is
fundamental to the governance of the country (Art. 37). From this coign of vantage
we must view the printed text of the particular Code. (para 7)
Law is dynamic and its meaning cannot be pedantic but purposeful. (para 12)
15. The plea taken by the husband-respondent No. 2 in his written statement may be re-
noticed. The respondent No. 2 vaguely makes certain generalized accusations against the
wife-appellant and states that ever since the marriage he found his wife to be sharp, shrewd
and mischievous. Accusing the wife of having brought disgrace to the family, the Respondent
No. 2 proceeds to state vide para 12 (translated into English): “The answering respondent,
 245

feeling fade up with all such activities unbecoming of the wife-petitioner, has divorced her on
11.7.1987”. The particulars of the alleged talaq are not pleaded nor the circumstances under
which and the persons, if any, in whose presence talaq was pronounced have been stated.
Such deficiency continued to prevail even during the trial and the respondent No. 2, except
examining himself, adduced no evidence in proof of talaq said to have been given by him on
11.7.1987. There are no reasons substantiated in justification of talaq and no plea or proof
that any effort at reconciliation preceded the talaq.
16. We are also of the opinion that the talaq to be effective has to be pronounced. The
term ‘pronounce’ means to proclaim, to utter formally, to utter rhetorically, to declare to,
utter, to articulate (See Chambers 20th Century Dictionary, New Edition, p. 1030). There is
no proof of talaq having taken place on 11.7.1987. What the High Court has upheld as talaq
is the plea taken in the written statement and its communication to the wife by delivering a
copy of the written statement on 5.12.1990. We are very clear in our mind that a mere plea
taken in the written statement of a divorce having been pronounced sometime in the past
cannot by itself be treated as effecting talaq on the date of delivery of the copy of the written
statement to the wife. The respondent No. 2 ought to have adduced evidence and proved the
pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written
statement, the plea ought to have been treated as failed. We do not agree with the view
propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their
respective commentaries, wherein a mere plea of previous talaq taken in the written
statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the
marital relationship with effect from the date of filing of the written statement. A plea of
previous divorce taken in the written statement cannot at all be treated as pronouncement of
talaq by the husband on wife on the date of filing of the written statement in the Court
followed by delivery of a copy thereof to the wife. So also the affidavit dated 31.8.1988,
filed in some previous judicial proceedings not inter partes, containing a self-serving
statement of respondent No. 2, could not have been read in evidence as relevant and of any
value.
17. For the foregoing reasons, the appeal is allowed. Neither the marriage between the
parties stands dissolved on 5.12.1990 nor does the liability of the respondent No. 2 to pay
maintenance comes to an end on that day. The respondent No. 2 shall continue to remain
liable for payment of maintenance until the obligation comes to an end in accordance with
law. The costs in this appeal shall be borne by the respondent No. 2.

*****
 Masroor Ahmed v. State (NCT of Delhi)
2008 (103) DRJ 137 (Del.)

BADAR DURREZ AHMED, J. 2. The case is unusual because of the facts which led to
the registration of the FIR in question.The complainant, Aisha Anjum, filed a written
complaint at the police station on 12.12.2006. In her written complaint, she stated that her
marriage was solemnised with the petitioner on 2.4.2004 in accordance with Muslim rites.
She further stated that out of this marital relationship a daughter was born to her. She alleged
that the petitioner and his family members threw her out of the house on account of non-
fulfillment of dowry demands for which she had already complained to the crime against
women cell. It was then alleged that the petitioner had filed a case for restitution of conjugal
rights and on 13.4.2006, from the court itself, she went with her husband to their matrimonial
home. It is further alleged in the written complaint that after her return to her matrimonial
home her husband committed rape on her upto 19.4.2006 because she had later come to learn
that he had already given her talaq earlier and that he had lied in court that she was still his
wife and on this misrepresentation he had taken her home. She further submitted that the
petitioner's family members also knew about the talaq but they participated in the fraud
committed against her. It is further alleged that on 19.4.2006 a second nikah was performed
which came to light only when she obtained a duplicate copy of the nikahnama. She alleged
that the petitioner had unlawful relations with her during that time as he was not her husband
then. She further stated that had she known, at that point of time, that he was not her husband
and that he had already given her talaq, she would never have agreed to have conjugal
relations with him. She alleged that her consent was taken by playing a fraud upon her and
that the petitioner, in the guise of being her lawful husband, had unlawful relations with her
by deceitful means. She reiterated that had she known of the truth at that point of time she
would never have given her consent. She therefore requested that legal action against the
petitioner and other accused persons be taken under sections 376/34 IPC.
3. It is an admitted position that the complainant and the petitioner got married on
2.4.2004 and that they lived together till 8.4.2005. On that date, according to the complainant,
she was thrown out of the house on account of non- fulfillment of dowry demands. But,
according to the petitioner, the complainant left their house without informing him and of her
own will. On 22.10.2005, the complainant gave birth to a baby girl (the said Sara @ Ushna,
who is now about 2 years old). It is alleged by the petitioner that towards the end of October
2005, his brother-in-law and his sister attempted to arrange for the return of the complainant
to her matrimonial home. But, this was in vain. It is further alleged by the petitioner that upon
hearing of the failure of this mission, he became very sad and extremely angry and in this
mental condition, in the presence of his brother-in-law and another man, he uttered the words
giving talaq to his wife (the complainant) approximately three times or even more. According
to the petitioner, he forgot about this incident and continued to make efforts for the return of
his wife. Admittedly, the factum of the purported talaq was not communicated to the
complainant.
4. On 23.3.2006, the petitioner, wanting the return of his wife, filed a suit for restitution
of conjugal rights in the court of the Senior Civil Judge, Delhi. In paragraph 1 of the plaint,
 247

the petitioner stated that the complainant was married to the petitioner on 2.4.2004 at Delhi
and was still the wife of the petitioner. The purported talaq of late October 2005 was not
mentioned in the plaint. On 13.4.2006, statements of the complainant and the petitioner were
recorded in the said suit for restitution of conjugal rights. The complainant stated:- I am ready
to join the company of the plaintiff/ husband and from the court I am going to my
matrimonial home with my husband.
The petitioner made the following statement:-
I have heard the statement of defendant. I am ready to take the defendant/ my wife to my
home. My suit stand[s] satisfied and I do not want to pursue the present matter. My suit may
be disposed of as satisfied. On the basis of these statements, on 13.4.2006 itself, the learned
Civil Judge passed the following order:- It is stated that matter has been settled between the
parties and defendant is ready to join the company of the plaintiff. Statement of parties
recorded. In view of the same suit of the plaintiff is disposed of as satisfied. File be consigned
to Record Room.
5. The complainant returned with the petitioner to their matrimonial home on 13.4.2006
from court itself. Thereafter, another remarkable event allegedly took place. As mentioned in
the FIR, a second nikah was performed between the petitioner and the complainant on
19.4.2006 Which, according to the complaint, the complainant got to know only upon
receiving a duplicate copy of the nikahnama from the Qazi who performed the ceremony.
According to the petitioner, the second nikah was necessitated because after the settlement of
13.4.2006, he was reminded by his brother-in-law that he had already divorced the
complainant by way of a triple talaq in october 2005. Faced with this situation, the petitioner,
who did not want any illegitimacy in his marital status, allegedly sought an opinion from a
mufti on 16.4.2006. The mufti reportedly gave a fatwa on 17.4.2006 that three talaqs
pronounced in one sitting would be regarded as one talaq-e-rajai and, consequently, the
petitioner could have taken back the complainant within the iddat period of three months.
But, as that period had elapsed, the petitioner and the complainant could renew their
matrimonial relationship only by performing a fresh nikah. According to the petitioner, it is
because of this fatwa that the second nikah was performed on 19.4.2006 which, according to
the petitioner, was witnessed by the complainant's brother (Shahid Naeem) who also signed
as a witness on the nikahnama (as also the compromise deed dated 01.09.2007). It was, of
course, earlier alleged by the complainant that the factum of the nikah was not in her
knowledge and came to light much later, before the CAW cell. According to her, signatures
were taken on the pretext that the documents had to be filed in court as a formality.
6. After her return to the matrimonial home on 13.04.2006, the complainant continued to
reside with the petitioner. Once again, there was discord between them and the petitioner
pronounced talaq (again) on 28.08.2006. On 30.8.2006, the petitioner left the matrimonial
home. Since then, she is residing at her parental home. On 6.9.2006, she filed a complaint
before the crime against women cell. It is further alleged by her that during the inquiry it
came to light that the petitioner had given her talaq earlier also (ie., in October, 2005).
According to the complainant, on 3.10.2006 when the petitioner appeared before the CAW
cell, he disclosed that he had already given the first talaq to the complainant in October 2005.
It is then, according to the complaint, that the complainant came to know for the first time
248

that a fraud had been played upon her and that the petitioner had sexual intercourse with her
during 13.4.2006 and 19.4.2006 when, in law, he was not her husband. However, she filed
her written complaint only on 12.12.2006 with regard to the alleged rape committed during
13.4.2006 and 19.4.2006. The FIR under section 376 IPC was registered on the same date
(12.12.2006).
7. The prosecution case is that the sexual intercourse which allegedly took place between
the petitioner and the complainant during 13.4.2006 and 19.4.2006 constituted rape under
section 375 IPC as the complainant had been deceived into believing that the petitioner was
still her husband on 13.4.2006, when the order in the suit for restitution of conjugal rights was
passed. It is contended that the petitioner knew of the talaq, yet, he misrepresented that the
complainant was still his wife and the complainant, believing this, returned to her
matrimonial home. Her consent to re-establish the conjugal relationship was, therefore, based
upon a fraud played by the petitioner and his family members.
8. It is pertinent to mention that the petitioner’s bail application was dismissed by the
learned Additional Sessions Judge on 20.12.2006 holding that the petitioner had not disclosed
the factum of talaq, either to the complainant or to the court, in his suit for restitution of
conjugal rights. It was further held that-
Pronouncement of triple 'talak' amounts to talaq-ul-Biddat which became
rrevocable and it does not lie in the mouth of the applicant to say that the
complainant was his wife. As far as case of re-marriage is concerned, there should be
an intermediate marriage with some other person, consummation of marriage and
then divorce and thereafter applicant can marry the complainant. Therefore, second
marriage on 19.4.06 nowhere answers religious tenets of the parties. Consent, given
by the complainant from 13.4.2006 till 19.4.2006, was a tainted consent, which can
not be termed as free consent by her.
These observations in respect of Muslim law as applicable in India are not correct. The
foundation of the prosecution case as also the decision of the learned sessions judge is that
the marriage stood dissolved by the purported triple talaq of October, 2005. On the contrary,
as indicated below, the foundation is illusory and is not supported by the facts stated in the
complaint considered in the light of the principles of Muslim law as applicable in India. This
would be clear from the discussion below.
On merits: submission that the offence u/s 375 IPC is not made out 11. The settlement
between the petitioner and the complainant would in itself have been sufficient for this court
to exercise its inherent powers to put to an end the FIR in question as also proceedings
emanating from it. This is so because I am of the view that the parties have genuinely settled
all their disputes and have decided to part with each other in terms of the compromise which
brings to an end bitter legal matrimonial battles. The present case being one of them. It is also
worth keeping in mind that the petitioner and the complainant have a daughter, who shall
always remain their daughter even though they no longer remain as husband and wife.
 249

Apart from this, it was also stressed by the learned counsel for the petitioner (and, not
opposed by the learned counsel for the complainant) that on merits The learned counsel for
the petitioner, submitted that-
(1) The alleged triple talaq of october 2005 did not result in a divorce in law. The talaq
was invalid. And, it was not even communicated to the complainant. He relied upon the
following decisions:-
(i) Riaz Fatima v. Mohd Sharif [135 (2006) DLT 205];
(ii) Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan [2002 (3) MhLJ 602(FB)];
(iii) Dilshad Begum Ahmadkhan Pathan v. Ahmadkhan Hanifkhan Pathan [Criminal
Revision Applications 313 and 314/1997 decided on 17.1.2007 (Bombay High Court)];
(iv) Shamim Ara v. State of U.P. [AIR 2002 SC 355].
(2) Consequently, the complainant continued to be the petitioner's wife. Therefore, there
was no question of any rape during 13.4.2006 and 19.4.2006 inasmuch as a wife is excepted
under section 375 IPC itself.
(3) In any event, the triple talaq pronounced in a single sitting could, at best, be regarded
as one talaq and therefore the second nikah performed on 19.4.2006 was permissible and
valid under Muslim personal law.
(4) Consequently, consent can well be presumed for sexual acts prior to the nikah of
19.4.2006. Reliance was placed on State of Andhra Pradesh v. P Narasimha [1994 SCC
(Cri) 1180].
Five questions:-
12. Several questions impinging upon Muslim law concepts arise for consideration. They
are :-
(1) What is the legality and effect of a triple talaq ?
(2) Does a talaq given in anger result in dissolution of marriage?
(3) What is the effect of non-communication of the talaq to the wife?
(4) Was the purported talaq of October 2005 valid?
(5) What is the effect of the second nikah of 19.4.2006 ?
Certain Muslim Law Concepts
13. Before I examine these questions it would be necessary to set out certain concepts of
Muslim law (shariat) which are oft ignored. Islamic jurisprudence (fiqh) has developed from
four roots (usul al-fiqh):- (1) The Quran; (2) the hadis or sunna; (3) Ijma; and (iv) Qiyas.
Employing these usul al-fiqh, the ulema (the learned) conducted a scientific and systematic
inquiry. This is known as the process of ijtihad. Through this process of ijtihad sprung out
various schools of law each of which owed its existence to a renowned master. For example,
the jurisprudence (fiqh) developed by Abu Hanifah and continued by his disciples came to be
known as the Hanafi school. The Maliki school owed its origin to Malik b. Anas, the Shafie
school to al- Shafi'i, the Hanbali school to Ibn-Hanbal and so on. These are the sunni schools.
Similarly, there are shia schools such as the Ithna Ashari, Jaffariya and Ismaili schools. In
India, Muslims are redominantly sunnis and, by and large, they follow the hanafi school. The
shias in India largely follow the Ithna Ashari school.
250

14. In essence, the Shariat is a compendium of rules guiding the life of a Muslim from
birth to death in all aspects of law, ethics and etiquette. These rules have been crystallized
through the process of ijtihad employing the sophisticated jurisprudential techniques. The
primary source is the Quran. Yet, in matters not directly covered by the divine book, rules
were developed looking to the hadis and upon driving a consensus. The differences arose
between the schools because of reliance on different hadis, differences in consensus and
differences on qiyas or aql as the case may be.
15. The question which arises is, given the shariat and its various schools, how does a
person proceed on an issue which is in dispute? The solution is that in matters which can be
settled privately, a person need only consult a mufti (jurisconsult) of his or her school. The
mufti gives his fatwa or advisory decision based on the Shariat of his school. However, if a
matter is carried to the point of litigation and cannot be settled privately then the qazi (judge)
is required to deliver a qaza (judgment) based upon the Shariat. The difference between a
fatwa and a qaza must be kept in the forefront. A fatwa is merely advisory whereas a qaza is
binding. Both, of course, have to be based on the shariat and not on private interpretation de
hors the shariat. The Muslim Personal Law (Shariat) Application Act, 1937 and the various
forms of dissolution of marriage recognised by it.
16. In India, the confusion with regard to application of customary law as part of Muslim
law was set at rest by the enactment of The Muslim Personal Law (Shariat) Application Act,
1937. Section 2 of the 1937 Act reads as under:-
2. Application of Personal Law to Muslims.- Notwithstanding any customs or
usage to the contrary, in all questions (save questions relating to agricultural land)
regarding intestate succession, special property of females, including personal
property inherited or obtained under contract or gift or any other provision of
Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian,
khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust
properties, and wakfs (other than charities and charitable institutions and charitable
and religious endowments) the rule of decision in cases where the parties are
Muslims shall be the Muslim Personal Law (Shariat).
The key words are notwithstanding any customs or usage to the contrary and the rule of
decision in cases where the parties are Muslims shall be the Muslim personal law (shariat).
This provision requires the court before which any question relating to, inter-alia, dissolution
of marriage is in issue and where the parties are Muslims to apply the Muslim personal law
(shariat) irrespective of any contrary custom or usage. This is an injunction upon the court.
What is also of great significance is the expression -- dissolution of marriage, including talaq,
ila, zihar, lian, khula and mubaraat.. This gives statutory recognition to the fact that under
muslim personal law, a dissolution of marriage can be brought about by various means, only
one of which is talaq. Although islam considers divorce to be odious and abominable, yet it is
permissible on grounds of pragmatism, at the core of which is the concept of an irretrievably
broken marriage. An elaborate lattice of modes of dissolution of marriage has been put in
place, though with differing amplitude and width under the different schools, in an attempt to
take care of all possibilities. Khula, for example, is the mode of dissolution when the wife
does not want to continue with the marital tie. She proposes to her husband for dissolution of
 251

the marriage. This may or may not accompany her offer to give something in return.
Generally, the wife offers to give up her claim to Mahr (dower). Khula is a divorce which
proceeds from the wife which the husband cannot refuse subject only to reasonable
negotiation with regard to what the wife has offered to give him in return. Mubaraat is where
both the wife and husband decide to mutually put an end to their marital tie. Since this is
divorce by mutual consent there is no necessity for the wife to give up or offer anything to the
husband. It is important to note that both under khula and mubaraat there is no need for
specifying any reason for the divorce. It takes place if the wife (in the case of khula) or the
wife and husband together (in the case of mubaraat) decide to separate on a no fault/no blame
basis. Resort to khula (and to a lesser degree, mubaraat) as a mode of dissolution of marriage
is quite common in India.
17. Ila and Zihar as modes of divorce are virtually non-existent in India. However, lian is
sometimes resorted to. If a man accuses his wife of adultery (zina), but is unable to prove the
allegation, the wife has the right to approach the qazi for dissolution of marriage. In India, a
regular suit has to be filed. Once such a suit is filed by the wife, the husband has the option of
retracting his charge of adultery, whereupon the suit shall fail. However, if he persists then he
is required to make four oaths in support of the charge. The wife makes four oaths of her
innocence, after which the court declares the marriage dissolved. This is the process of
dissolution of marriage by lian.
The Dissolution of Muslim Marriage Act, 1939
18. At this juncture it would be relevant to mention the Dissolution of Muslim Marriages
Act, 1939 which enabled muslim women of all sects to seek dissolution of marriage by a
decree of the court under the various grounds enumerated in section 2 thereof which included
the husband's cruelty, impotency, failure to maintain, leprosy, virulent venereal disease, etc..
Section 2(ix) of the 1939 Act contained the residuary clause entitling a Muslim woman to
seek dissolution of her marriage through a court on any other ground which is recognised as
valid for the dissolution of marriages under Muslim law. So, the position after the 1937 and
1939 Acts is that dissolution of a Muslim marriage is permissible by the modes of talaq, ila,
zihar, lian, khula and mubaraat (as mentioned in the 1937 Act) as also on a wife's suit under
the 1939 Act, on any of the grounds mentioned therein or on any other ground which is
recognised as valid for the dissolution of marriages under Muslim law which would include
lian. Divorce through talaq, ila, zihar, khula and mubaraat takes place without the
intervention of the court. Divorce under the 1939 Act (which would also include lian) is
through a wife's suit and by a decree of the court. The muslim wife, therefore, can seek
divorce either outside the court (through khula) or through court (under the 1939 Act or lian).
She can also put an end to the marital tie by pronouncing talaq upon herself in the case of
talaq-e- tafwiz where the husband delegates the power of pronouncing talaq to his wife.
On the other hand, the Muslim husband can dissolve the marriage only outside court
through talaq (ila and zihar being virtually non-existent in India). Both the husband and wife
can mutually decide to dissolve the marriage, again without the intervention of court, through
mubaraat.
252

19. The 1939 Act introduced a very salutary principle into Muslim law as it is
administered in India. This is the principle of applying beneficial provisions of one school to
adherents of other schools as well. The Statement of Objects and Reasons of the 1939 Act
clearly indicates the application of Maliki law to all Muslim women seeking divorce through
court. It was specifically noted in the said Statement of Objects and Reasons that the Hanafi
Jurists, however, have clearly laid down that in cases in which the application of Hanafi Law
causes hardship, it is permissible to apply the provisions of the Maliki, Shafii or Hambali
Law.
Talaq and its three forms
20. I now return to the central point in this case -- talaq. This mode of dissolving a
marriage is unique to Mslim law. In this connection the Supreme Court, in Zohara Khatoon
v. Mohd. Ibrahim [(1981) 2 SCC 509], observed :-
There can be no doubt that under the Mahomedan law the commonest form of divorce is
a unilateral declaration of pronouncement of divorce of the wife by the husband according to
the various forms recognised by the law. A divorce given unilaterally by the husband is
especially peculiar to Mahomedan law. In no other law has the husband got a unilateral right
to divorce his wife by a simple declaration because other laws viz. the Hindu law or the Parsi
Marriage and Divorce Act, 1936, contemplate only a dissolution of marriage on certain
grounds brought about by one of the spouses in a Court of law.
Three forms of talaq have been in existence (1) Ahsan talaq; (2) Hasan talaq; and (3)
Talaq-e-bidaat.
21. Ahsan talaq: When the husband makes a single pronouncement of talaq during a
period of purity (tuhr) followed by abstinence from sexual intercourse for the period of iddat,
such a talaq is called ahsan talaq. A divorce of this kind is revocable during the period of
iddat. It becomes irrevocable when the period of iddat expires. It is irrevocable in the sense
that the former husband and wife cannot resume a legitimate marital relationship unless they
contract a fresh nikah with a fresh mahr. This is subject to a limitation and that is that if the
talaq was the third time such a talaq was pronounced, then they cannot re-marry unless the
wife were to have, in the intervening period, married someone else and her marriage had been
dissolved either through divorce or death of that person and the iddat of divorce or death has
expired. This latter process is known as halala. However, the process of halala cannot be
employed as a device to re-marry the same spouse but, it must happen in the natural course of
events. It is, in effect, a near impossibility and, for all intents and purposes, the third talaq
brings about a final parting of the erstwhile spouses.
22. Hasan talaq: Where the husband makes a single pronouncement of divorce during
three successive tuhrs, without any sexual intercourse during the said tuhrs, the divorce is
known as hasan talaq. The first two pronouncements are revocable. The third is irrevocable.
The first two pronouncements can be revoked during iddat. The third, cannot be. And, after
iddat, the former husband and wife cannot even enter into a nikah unless the said process of
halala is completed.
 253

23. Talaq-e-bidaat: Where three pronouncements are made in one go (triple talaq) either
in one sentence or in three sentences signifying a clear intention to divorce the wife, for
instance, the husband saying ‘I divorce you three times’ or ‘I divorce you, I divorce you, I
divorce you’ or the much publicised ‘Talaq, talaq, talaq’.
Sanctity and effect of Talaq-e-bidaat or triple talaq.
24. There is no difficulty with ahsan talaq or hasan talaq. Both have legal recognition
under all fiqh schools, sunni or shia. The difficulty lies with triple talaq which is classed as
bidaat (an innovation). Generally speaking, the shia schools do not recognise triple talaq as
bringing about a valid divorce. There is, however, difference of opinion even within the sunni
schools as to whether the triple talaq should be treated as three talaqs, irrevocably bringing to
an end the marital relationship or as one rajai (revocable) talaq, operating in much the same
way as an ahsan talaq.
26. It is accepted by all schools of law that talaq-e-bidaat is sinful31. Yet some schools
regard it as valid. Courts in India have also held it to be valid. The expression ‘bad in
theology but valid in law’ is often used in this context. The fact remains that it is considered
to be sinful. It was deprecated by prophet Muhammad. It is definitely not recommended or
even approved by any school. It is not even considered to be a valid divorce by shia schools.
There are views even amongst the sunni schools that the triple talaq pronounced in one go
would not be regarded as three talaqs but only as one. Judicial notice can be taken of the fact
that the harsh abruptness of triple talaq has brought about extreme misery to the divorced
women and even to the men who are left with no chance to undo the wrong or any scope to
bring about a reconciliation. It is an innovation which may have served a purpose at a
particular point of time in history but, if it is rooted out such a move would not be contrary to
any basic tenet of Islam or the Quran or any ruling of the
Prophet Muhammad.
27. In this background, I would hold that a triple talaq (talaq-e-bidaat), even for sunni
Muslims be regarded as one revocable talaq. This would enable the husband to have time to
think and to have ample opportunity to revoke the same during the iddat period. All this
while, family members of the spouses could make sincere efforts at bringing about a
reconciliation. Moreover, even if the iddat period expires and the talaq can no longer be
revoked as a consequence of it, the estranged couple still has an opportunity to re-enter
matrimony by contracting a fresh nikah on fresh terms of mahr etc.
Importance of the attempt at reconciliation
28. The attempt at reconciliation which is recommended under the shariat, has been
assigned a key role by the Supreme Court. This, we shall see presently. It all began with the
decision of Baharul Islam J. of the Gauhati High Court in a case under section 125 CrPC for
maintenance by a wife in Sri Jiauddin v. Mrs Anwara Begum [(1981) 1 Gauhati Law
Reports 358]. When the wife (Anwara Begum) filed the petition for maintenance, Jiauddin
alleged in his written statement before the Magistrate that he had pronounced talaq earlier and
that Anwara Begum was no longer his wife. No evidence of the pronouncement of talaq was
produced. When the matter reached the High Court, the question was -- whether there had
254

been a valid talaq? Baharul Islam J. observed that while a Muslim marriage was a civil
contract, a high degree of sanctity attached to it.
The necessity of dissolution was recognized but, only under exceptional circumstamces.
He held that:-
talaq must be for reasonable cause and be preceded by attempts at reconciliation
between the husband and the wife by two arbiters one from the wife’s family the
other from the husbands. If the attempts fail, talaq may be effected.
29. In arriving at this conclusion, Baharul Islam J. considered various verses of the Quran
and opinions of scholars and jurists such as Mohammad Ali, Yusuf Ali, Ameer Ali and
Fyzee. The learned Judge went on to hold:-
In other words, an attempt at reconciliation by two relatives one each of the parties, is an
essential condition precedent to talaq.
30. In a subsequent decision of a Division Bench (Baharul Islam CJ and D. Pathak J. of
the Gauhati High Court in the case of Mst Rukia Khatun v. Abdul Khalique Laskar [(1981)
1 Gauhati Law Reports 375], the decision in Jiauddin was held to have correctly laid down
the law on the subject and the decisions of the Calcutta and Bombay High Courts in ILR 59
Calcutta 83335 and ILR 30 Bombay 53736 were observed to be not correct law. In Rukia
Khatun, the said Division Bench held:-
In our opinion the correct law of talaq as ordained by Holy Quran is: (i) that talaq
must be for a reasonable cause; and (ii) that it must be preceded by an attempt at
reconciliation between the husband and wife by two arbiters, one chosen by the wife
from her family and the other by the husband from his. If their attempts fail, talaq
may be effected.
31. Now I come to the decision of the Supreme Court in Shamim Ara v. State of U.P.:
[AIR 2002 SC 3551] which was also a case arising out of an application for maintenance
under section 125 CrPC filed by a wife. To avoid the payment of maintenance, the husband
had taken the plea in his written statement that he had already divorced her by pronouncing
talaq. The Supreme Court referred to the two decisions of the Gauhati High Court in
Jiauddin and Rukia Khatun and expressed its agreement with the abovementioned
observations made in those judgments. Thereafter, examining the facts of the case before it,
the Supreme Court noted that no evidence in proof of the alleged talaq had been adduced by
the husband and that there were no reasons substantiated in justification of talaq and no plea
or proof that any effort at reconciliation preceded the talaq. The Supreme Court held that a
talaq has to be pronounced to be effective. It said:-
A plea of previous divorce taken in the written statement cannot at all be treated
as pronouncement of talaq by the husband on wife on the date of the filing of the
written statement in the court followed by delivery of a copy thereof to the wife.
32. In these circumstances, the Supreme Court held that the marriage was not dissolved
and that the liability of the husband to pay maintenance continued. Thus, after Shamim Ara,
the position of the law relating to talaq, where it is contested by either spouse, is that, if it has
to take effect, first of all the pronouncement of talaq must be proved (it is not sufficient to
 255

merely state in court in a written statement or in some other pleading that talaq was given at
some earlier point of time), then reasonable cause must be shown as also the attempt at
reconciliation must be demonstrated to have taken place. This would apply to ahsan talaq,
hasan talaq as also talaq-e-bidaat. The latter, also because of the view taken by me that a
talaq-e-bidaat or triple talaq (so called) shall be regarded as one revocable talaq. An issue
which needs to be un-knotted is does the attempt at reconciliation necessarily have to precede
the pronouncement of talaq or can it be after the pronouncement also? The two Gauhati High
Court decisions and that of the Supreme Court in Shamim Ara have gone on the
understanding that the attempt at reconciliation must precede the pronouncement of talaq
itself. But, those decisions did not consider the distinction between a revocable and an
irrevocable talaq. Those decisions, in my respectful view, proceeded on the basis that the
talaq in each of the cases was of an irrevocable nature. Once a talaq is of the irrevocable kind,
it is obvious that the effort at reconciliation must precede its pronouncement. But, where a
talaq is revocable, the attempts at reconciliation can take place even after the pronouncement.
This is so, because, in a revocable talaq, the dissolution of marriage does not take place at the
time of pronouncement but is automatically deferred till the end of the iddat period. This
duration is specifically provided so that the man may review his decision and a reconciliation
can be attempted. A hasan talaq is revocable. So also are the first two talaq pronouncements
in the case of ahsan talaq. Now, talaq-e-bidaat has also been held by me to be operative as a
single revocable talaq. In all these cases of revocable talaq, the attempt at reconciliation may,
in my view, take place after the pronouncement of talaq. The crucial point is that for a
pronouncement of talaq to result in the dissolution of the marital tie there must be an attempt
at reconciliation. In the case of an irrevocable talaq, it must precede the pronouncement and
in the case of a revocable talaq, it may precede or it may be after the pronouncement but
before the end of the iddat period.
Pronouncement of talaq and dissolution of marriage
33. In this connection it would be relevant to note that pronouncement of talaq does not
ipso facto amount to a dissolution of the marital tie between husband and wife. Some
assistance may be taken of traditional English law in explaining the concept. As indicated in
Jowitt's Dictionary of English Law, Edition-II, Sweet and Maxwell, divorce was a term used
by the ecclesiastical courts to signify an interference by them with the relation of husband and
wife. It was of two kinds a divorce a mensa et thoro (from bed and board), granted in cases
where the husband or wife had been guilty of such conduct as to make conjugal intercourse
impossible (as in the case of adultery, cruelty, etc.); and a divorce a vinculo matrimonii (from
the bond of marriage), granted where the marriage was voidable or void ipso jure (as in the
case of the parties being within the prohibited degrees, or one of them having been already
married, or being impotent when married). The former is now represented by judicial
separation, the latter by a decree of nullity of marriage.
34. In Halsbury's Law of England, Fourth Edition, Volume 13, in paragraphs 501 and
502 it is mentioned that the law relating to matrimonial causes was much influenced by the
ecclesiastical canons and former practice of the ecclesiastic courts. That influence gradually
diminished, and modern legislation has very considerably cut it down. It was also noted that
from the middle of the twelfth century the ecclesiastic courts were recognized as having
256

exclusive jurisdiction in matters of marriage and divorce, as that term was then understood,
and since the Church of Rome was the supreme ecclesiastic authority in England the
ecclesiastic courts applied the canon law in matrimonial causes. Christian marriage was
indissoluble, but divorce a mensa et thoro, in the nature of the present day judicial separation,
that is divorce without the right thereafter to marry another person while the former spouse
still lives, was granted for certain causes. Subsequently, there developed in course of time a
method of divorce a vinculo matrimonii, that is divorce in its current meaning of dissolution
with the right thereafter to marry another person while the former spouse still lives. It was
also noted that after the enactment of Matrimonial Causes Act, 1857 in England, divorce
means dissolution of marriage with the right thereafter to marry another person while the
former spouse still lives.
35. From the above discussion, it is clear that the marital relations between husband and
wife under English law could be interfered with by way of judicial separation, annulment of
marriage or dissolution of marriage. The last of the expressions has now become synonymous
with the word divorce. It is, however, important to note that traditional divorce included the
concept of judicial separation without resulting in a dissolution of marriage. Principles under
Muslim Law are somewhat different from the straightforward classification of a divorce
implying dissolution of marriage. When a talaq is pronounced, the marital relationship may
not terminate immediately. If the talaq is revocable then the same can be revoked during the
iddat period. If it is so revoked, then the marital tie between the husband and the wife is not
severed and no dissolution of marriage takes place. However, if the talaq is not revoked
during the period of iddat, then upon the termination of such period, dissolution of marriage
takes place. During the period of iddat, under Muslim Law, the wife upon whom talaq has
been pronounced, has the right of residence as well as of maintenance and she cannot be
disturbed from where she was residing at the time of pronouncement of talaq. She continues
to be the wife of the petitioner for the entire duration of the period of iddat and, therefore, her
status would be akin to that of a wife under traditional English law in the case of divorce a
mensa et thoro. The dissolution of marriage takes place only upon
the completion of the iddat period provided the talaq is not revoked. It is then that the
parties are released from their marital bond and a divorce a vinculo matrimonii takes place
amounting to dissolution of marriage. These are also important factors to be kept in mind
while construing the question of divorce under Muslim Law. It is, therefore prescribed that
the period during which the marital tie remains in suspense ought to be utilized for the
purposes of bringing about a reconciliation between the husband and the wife and it is for this
purpose that the courts have recognized that a reconciliation must be attempted in the manner
indicated in the Quran.
Can talaq be pronounced in the absence of the wife? Is communication of the
pronouncement of talaq necessary?
36. The Supreme Court made it clear in Shamim Ara that a talaq, to be effective, has to
be pronounced. The manner of pronouncement of oral talaq also brings in differences in
hanafi and ithna ashari schools. For one, the latter requires the presence of two competent
witnesses, while the former does not. Then there is the issue of communication. A talaq may
be pronounced in the absence of the wife. But, does it not need to be communicated to her?
 257

As discussed above, pronouncement of talaq materially alters the status of the wife. Her
rights and liabilities flow from the nature of the talaq. Is it a revocable talaq or is it an
irrevocable talaq? Then there is the question of iddat. Her right to residence. Her right to
maintenance. Her right to mahr (if deferred). Custody of children, if any. Her right of
pledging her husband’s credit for obtaining the means of subsistence. How would she know
that it is time for her to exercise these rights (or time for her not to exercise them, as in the
case of pledging her husband’s credit) if she does not even know that her husband has
pronounced talaq? So, linked with the question of her rights is the issue of communication of
the talaq to her Furthermore, as pointed out above, the iddat period, in the case of a revocable
talaq, is also a period during which the husband and wife have a re-think and attempt
reconciliation. How would this be possible if the husband pronounces talaq secretly and does
not at all inform the wife about it? Consequently, while it may not be essential that the talaq
has to be pronounced in the presence of the wife, it is essential that such pronouncement, to
be effective, is made known to her, communicated to her, at the earliest. Otherwise she would
be deprived of her rights post talaq and pre-dissolution. What is the earliest will depend on
the facts and circumstances of each case and would necessarily be a function of the access to
communication that the husband and wife have. In the modern day, where every nook and
cranny has landline or cellular coverage, in almost every case it would mean the same day.
To my mind, communication is an essential element of pronouncement. Where the
pronouncement of talaq is made in the presence of the wife, the acts of pronouncement and
communication take place simultaneously. The act of pronouncement includes the act of
communication. Where the wife is not present, pronouncement and communication are
separated by time. The pronouncement would be valid provided it is communicated to the
wife. The talaq would be effective from the date the pronouncement is communicated to the
wife. In case it is not communicated at all, even after a reasonable length of time, a vital
ingredient of pronouncement would be missing and such a talaq would not take effect.
The answers to the five questions
37. (1) What is the legality and effect of a triple talaq ?
It is not even considered to be a valid divorce by shia schools. I hold that a triple talaq
which is talaq-e-bidaat, even for sunni muslims be regarded as onerevocable talaq.
(2) Does a talaq given in anger result in dissolution of marriage ?
If a talaq is pronounced in extreme anger where the husband has lost con trol of himself it
would not be effective or valid.
(3) What is the effect of non-communication of the talaq to the wife?
If the pronouncement of talaq is communicated to the wife, the talaq shall take effect on
the date it is so communicated. However, if it is not communicated at all the talaq would not
take effect.
(4) Was the purported talaq of October 2005 valid? No. First of all, it was given, if at all,
in extreme anger. Secondly, it was never communicated to the complainant, at least not by
the relevant period (i.e., till 13.04.2006 or even by 19.04.2006). Thirdly, there was no attempt
at reconciliation in the manner suggested in the Quran either before or after the purported
258

pronouncement of talaq in October 2005. Consequently, the marital tie of the petitioner and
the complainant subsisted during the relevant period (ie.,13.04.2006 to 19.04.2006).
Therefore, the offence of rape is not made out even on the basis of allegations contained in
the complaint.
(5) What is the effect of the second nikah of 19.4.2006 ?
It was not necessary. Since the marriage was subsisting, the second nikah between them
would be of no effect. However, had the purported talaq of October, 2005 been valid, it
would have operated as a single revocable talaq and it would have been permissible for the
couple to re-marry. In that case, the second nikah would have been effective and valid. And,
then, the presumption of consent just prior to the marriage would be available to the
petitioner. But, we need not labour on that aspect as the talaq of October, 2005 itself was
invalid and their first marriage subsisted.

*****
 Ghulam Sakina v. Falak Sher Allah Bakhsh
AIR 1950 Lah. 45

MOHD. SHARIF, J. – This second appeal by the plaintiff arises out of her suit for
dissolution of marriage. It was alleged that she was never given in marriage to the defendant
as he proclaimed it to be, that if any such marriage be held to have taken place during her
infancy she never approved of it and had repudiated it and that she was a Sunni girl and the
defendant was a Shia and the marriage between them was not good. The defendant
maintained that the marriage was performed by her father when she was five years’ old, that
his marriage was an exchange marriage in lieu of the marriage of his own sister with the
uncle of the plaintiff and that the parties had lived for some time as husband and wife and the
marriage had been consummated. It was denied that the defendant was a Shia; both the
parties belonged to the Sunni sect. The trial Judge found that the plaintiff was married by her
father during her infancy in 1932 and that there was no credible proof of the consummation
of marriage. The issue as to the parties belonging to different sects was not pressed. On
these finding the plaintiff was awarded a decree. On appeal by the defendant, the learned
District Judge, Mianwali, came to a contrary conclusion as to the consummation of marriage
and for that reason accepted the appeal. The plaintiff has now come up in second appeal.
2. The marriage between the parties is recorded in the marriage register marked Ex. D-2.
It was performed by the father as guardian on 23rd November 1932. The father examined as
P.W. 1 had to admit this. The plaintiff according to the birth entry produced by her, was born
on 13th November 1931, i.e., she was about a year old when the marriage is said to have been
celebrated. It is common ground that the plaintiff is the only daughter of her parents. This,
coupled with the statement of Ghulam Rasul, D.W. 7, the Nikah Khawan, that the girl was, at
the time of the marriage, stated to be 3 or 4 months old and Falak Sher defendant about 5 or 7
years old, would demonstrate that the birth entry of 13th November 1931 related to the
plaintiff herself. This is not in any way weakened by the evidence of Dr. Utam Chand P.W.
10 who examined the plaintiff as to her age and according to his estimate, she was about 17
years old at the time of the examination.
3. The sole question for decision in this case is whether the plaintiff had repudiated
her marriage in accordance with the requirements of S. 2, Dissolution of Muslim Marriages
Act, 1939. The relevant portion is reproduced below:
Section 2. A woman married under Muslim law shall be entitled to obtain a decree
for the dissolution of her marriage on any one or more of the following grounds,
namely-
(vii) that she having been given in marriage by her father or other guardian
before she attained the age of 15 years repudiated the marriage before attaining the
age of 18 years provided that the marriage has not been consummated.
4. It would not be disputed that the plaintiff was married by her father long long before
she was 15 years old and the suit for dissolution of marriage was instituted on 29 th August
1945 when she was about 14 years old according to her birth entry and about 17 years old
according to medical testimony; in any case before she attained the age of 18 years.
260

5. The evidence as to the alleged consummation is of very unsatisfactory character. The

approximate time at which this took place, was not at all specified in the statement filed by
the defendant. In para 2, “about one year ago” was written but these words were scored
through. Before the issues, the plaintiff made a request to the Court that the defendant be
directed to disclose the exact time when the marriage was consummated. The defendant
evaded this enquiry by stating that the matter could be ascertained during the course of his
cross-examination and the trial Court left it at that. It was desirable that the defendant should
have been made to specify approximately, if not exactly, the time when the parties were said
to have lived as husband and wife.
6. The learned District Judge held the consummation of the marriage proved as
(N)o less than two persons who were examined as respectable witnesses by the
plaintiff, admitted in the lower Court that the marriage had been consummated. It is
immaterial that they were related to the defendant because in cases of the present
type the relations of the parties are the most natural witnesses and their evidence is
entitled to due weight. Nor is this all. The plaintiff was pointedly asked to submit
herself to medical examination in order to ascertain whether she was still a virgo
intacta as claimed by her. She had not however the courage to be examined by the
doctor and a very strong presumption naturally arises that the marriage has been
consummated.
7. The two persons referred to by the learned District Judge were apparently P.W. 2
Muhammad Niwaz and P.W. 7 Allah Bakhsh, the former is the brother of the defendant and
the latter is the father. Both these persons had to be examined with reference to some of the
letters exchanged between the father of the plaintiff and the defendant’s father. These letters
indicated that the plaintiff’s father was not willing to send her to the house of the defendant
and the marriage was said to be no longer in force. The correspondence clearly revealed that
during the year 1944 there were dissensions between the couple and they did not live
together. The production by the plaintiff of P.W. 2 and P.W. 7 could not attract the remarks
made by their Lordships in Shatrugan Das v. Sham Das [AIR 1938 PC 59]. There the
plaintiff himself refrained from giving evidence on his own behalf and adopted instead the
tactics of calling Sham Das defendant 1 as a witness for the plaintiff with the usual result that
important features of his case were denied by his own witness. Their Lordships condemned
this practice and approved of the course taken by the High Court in treating the plaintiff as a
person who put defendant 1 forward as a witness of truth.
8. The case for the defendant as disclosed during the course of the trial was that there was
a rapprochement between the parties about December 1944 and after that the plaintiff went to
live with the defendant as his wife. The evidence of this rapprochement has been discussed
and examined in detail by the 1st Court and the lower appellate Court had nothing to say
about it. On a reconsideration of this evidence, there does not appear to be any reason to
differ from the conclusions of the trial Court. There was a good deal of discrepancy in the
statements of the witnesses regarding the taking of a second marriage party to the house of
the plaintiff after the alleged compromise and no good reason could be adduced to discredit
the evidence led by the plaintiff that she all along lived in her father’s house and did not go to
the house of the defendant.
 261

9. Much capital was sought to be made out of the refusal of the plaintiff to submit to
medical examination. It was urged that she had once been examined by a male doctor and if
she was honest in her assertions, there should have been no objection on her part to an
examination by a lady doctor. The medical examination was evidently made in support of
her claim that she was below 18 years as required by S. 2, Dissolution of Muslim Marriages
Act. A similar argument was advanced with success in Atkia Begum v. Muhammad Ibrahim
[36 I.C. 20]. At p. 25, Col. 1, it was noted that the learned Judges of the High Court had
thought that the lady’s refusal to submit to medical examination was very significant that it
showed the respondent’s bona fides in the truth of his case; that he was suggesting a test
which if his case was false, would have put him out of Court; that a lady doctor could have
given most valuable evidence on these points even without a minute examination as to
whether the appellant was a virgin or not and that a medical examination would have been of
the utmost value... Their Lordships of the Privy Council did not agree with these remarks.
The refusal of the plaintiff to have her examined by a lady doctor could not, therefore, be
taken to be a proof of the consummation of marriage which should have been proved as a fact
on the consideration of the entire evidence in the case.
10. The real significance of “option of puberty” and the manner how is it to be exercised,
seems to have been not properly grasped or appreciated. The marriage under Muhammadan
law is in the nature of a contract and as such, requires the free and unfettered consent of the
parties to it. Normally speaking, a man and a woman should conclude the contract between
themselves but in the case of minors, i.e., who have not attained the age of puberty as
recognised by Muhammadan law, the contract might be entered into by their respective
guardians. Before the Dissolution of Muslim Marriages Act, 1939, a minor girl given in
marriage by the father or the father’s father, had no option to repudiate it on the attainment of
her puberty but this has now been changed. The contract of the father or the father’s father
stands on no higher footing than that of any other guardian and the minor could repudiate or
ratify the contract made on his or her behalf during the minority, after the attainment of
puberty. “Puberty” under Muhammadan law is presumed, in the absence of evidence, on
completion of the age of 15 years. It would, therefore, necessarily follow that the minor
should exercise the option after the age of 15 years unless there was evidence to the contrary
that the puberty had been attained earlier and the burden of proving this shall lie upon the
person so pleading. Anything done by the minor during the minority would not destroy the
right which could accrue only after puberty. The co-habitation of a minor girl would not thus
put an end to the “option” to repudiate the marriage after puberty. The assent should come
after puberty and not before, for the simple reason that the minor is incompetent to contract;
nor should the consummation have taken place without her consent [Baillie 1.59 and Abdul
Karim v. Amina Bai, AIR 1935 Bom 308]. This assent might either be express or implied. It
might be by words or by conduct like cohabitation with the husband. It is also essential that a
girl should be aware of the marriage before she could be expected to exercise her option.
11. In the present case, the plaintiff at the time of the alleged consummation, was still
below 15 years and assuming consummation to be a fact, it could not destroy her right to
repudiate the marriage after she had attained the age of 15. She had three years within which
262

to proclaim the exercise of that right and the institution of a suit was one mode of proclaiming
it. The plaintiff had not therefore lost her right to repudiate the marriage given to her by law.
12. For the reasons given above I would accept this appeal, set aside the judgment and
decree of the learned District Judge and restore that of the trial Judge and decree the
plaintiff’s suit with costs throughout.

*****
 A. Yousuf Rawther v. Sowramma
AIR 1971 Ker. 266

V.R. KRISHNA IYER, J. - This case, like most others, reveals a human conflict, over-
dramatised by both sides and dressed up in legal habiliments, as usual; and when, as here,
parties project a matrimonial imbroglio on the forensic screen, the court attempts a
reconciliation between law and justice. What deeply disturbs a judge in such case-situations
is the conflict between doing justice by promoting a rapprochement and enforcing the law
heedless of consequence. Sowramma, a Hanafi girl, around 15, married in 1962 Yusuf
Rowthan, nearly twice her age, but the husband’s home hardly found them together for more
than a few days and after a long spell of living apart, an action for dissolution was instituted
by the wife against the husband. The matrimonial court should, and I did, suggest to counsel,
in vain though, to persuade the parties to repair the broken bond. Unhappily, irreversible
changes in the conjugal chemistry baulked the effort, the husband having taken another wife
and the latter having wed again after dissolution was granted in appeal. And thus their hearts
are pledged to other partners. The prospect of bringing together the sundered ends of the
conjugal knot being absent a decision on the merits, according to the law of the parties, has to
be rendered now. Even so, the legal impact of such subsequent events on granting or
moulding the relief falls to be considered.
2. A brief narration of the facts will help to appreciate the questions argued before me,
with thoroughness and fairness, by counsel for the appellant and his learned friend opposite.
(A young advocate of this court, Sri Manhu, who has impressed me with his industrious bent
and depth of preparation on questions of Muslim law, has, as amicus curiae, brought into my
judicial ken old texts and odd material which are outside the orbit of the practising lawyer).
The plaintiff had attained puberty even before her marriage and soon after the wedding, the
bridal pair moved on to the husband’s house. The very next day the defendant left for
Coimbatore where he was running a radio dealer’s business. A month’s sojourn in the house
of the husband, and then the girl went back to her parents, the reason for her return being
blamed by each on the other. This separation lasted for over two years during which span the
defendant admittedly failed to maintain the wife, the ground alleged by the defendant being
that he was willing and, indeed, anxious to keep her with him but she wrongfully refused to
return to the conjugal home-thanks to the objectional inhibition by the father of the girl. The
husband, finding the young wife recalcitrant, moved the mosque committee, through his
brother (Ext. D2) but the effort failed and so they reported that divorce was the only solution
(Ext. D4). Anyway, after preliminary skirmishes, in the shape of lawyer notices, a litigation
for dissolution of marriage erupted. The trial court dismissed the suit but the Subordinate
Judge’s Court granted a decree for dissolution of the marriage. The aggrieved husband has
come up to this court challenging the validity of the decree of the lower appellate court. His
counsel, Shri Chandrasekhara Menon, has highlighted a seminal issue of Muslim law – the
right of a female wrongfully leaving the matrimonial home to claim dissolution through court
for mere failure of the husband to maintain the erring wife for 2 years.
3. The concurrent findings are that the plaintiff was 15 years old, that she had attained
puberty and the marriage had been consummated. Again, while both the courts have held that
264

the defendant had failed to provide maintenance for the plaintiff for a period of two years,
they have also recorded a crucial finding “that it was through her own conduct that she led
her husband...... to stop maintenance for a period of 2 years”.
4. The claim of a Muslim wife to divorce is now provided for and canalised by the
Dissolution of Muslim Marriages Act, Act 8 of 1939 (for short, referred to as the Act).
Section 2 is the charter of the wife and, in this case, the plaintiff has pressed into service sub-
sections (ii), (vii) and (ix) thereof. I shall deal briefly with the second ground, which has been
negatived by both the courts, and then pass on to the first and the last which, in the
circumstances of this case, require detailed consideration. Section 2, cl (vii) vests in the
woman, who has been given in marriage by her father or other guardian before she attains the
age of 15 years, the right to repudiate the marriage before attaining the age of 18 years,
provided that the marriage has not been consummated. The plaintiff and her father had no
qualms in pleading notwithstanding the Child Marriage Restraint Act, 1929, that the girl was
only 13 ½ years old at the time of the marriage. Social legislation without the community’s
militant backing, is often a flop. However, the court held: “as there is no evidence to show
that the plaintiff was under the age of 15 years when her marriage was solemnised and as the
probabilities establish that the marriage had been consummated it is obvious that the second
ground which the plaintiff relied upon for dissolution of her marriage with the defendant has
not been made out”. On these findings, Section 2 (vii) is off altogether. However, the
assumption of the learned Subordinate Judge that if the marriage has been consummated
Section 2 (vii) is excluded irrespective of the tender age of the female partner, may be open to
question. The Lahore High Court had occasion to consider the import to this provision in a
ruling reported in Mt. Ghulam Sakina v. Falak Sher Allah Baksh [AIR 1950 Lah 45]. The
learned Judge expatiated on the real significance of the option of puberty thus:
The marriage under Muhammadan law is in the nature of a contract and as such
requires the free and unfettered consent of the parties to it. Normally speaking, a man
and a woman should conclude the contract between themselves but in the case of
minors i.e., who have not attained the age of puberty as recognised by Muhammadan
law, the contract might be entered into by their respective guardians. Before the Act 8
of 1939 (The Dissolution of Muslim Marriages Act 1939) a minor girl given in
marriage by the father or the father’s father, had no option to repudiate it on the
attainment of her puberty but this has now been changed. The contract of the father
or the father’s father stands on no higher footing than that of any other guardian and
the minor could repudiate or ratify the contract made on his or her behalf during the
minority after the attainment of puberty. ‘Puberty’ under Muhammadan law is
presumed in the absence of evidence, on completion of the age of 15 years. It would,
therefore, necessarily follow that the minor should exercise the option after the age of
15 years unless there was evidence to the contrary that the puberty had been attained
earlier and the burden of proving this shall lie upon the person so pleading. Anything
done by minor during the minority would not destroy the right which could accrue
only after puberty. The co-habitation of a minor girl would not thus put an end to the
‘option’ to repudiate the marriage after puberty.
 265

There is persuasiveness in this reasoning but on the facts found in the present case, even
the Lahore view cannot sustain the plaintiff’s claim, while another ruling reported in Rabia
Khatoon v. Mohd. Mukhtar Ahmad [AIR 1966 All 548] goes against her stand.
5. Now, to the other grounds. Section 2 (ix) of the Act is of wide import and preserves the
woman’s right to dissolution of her marriage on any ground recognised as good under
Muslim law. Thus, it is perfectly open to a female spouse to press into service not merely the
ground set out in Cls. (i) to (viii) but also any other which has enjoyed recognition under the
Shariat. Section 2 (ii) liberates a woman from her matrimonial bondage if her husband “has
neglected or has failed to provide for her maintenance for a period of two years”. We have,
therefore, to examine whether the plaintiff has been able to make out any ground sanctioned
by the Muslim law or set out in Section 2 (ii) of the Act. There is a sharp cleavage of opinion
in India on the scope and meaning of this latter provision while the former clause has not
been expressly pronounced upon.
6. The interpretation of a legislation, obviously intended to protect a weaker section of
the community, like women, must be informed by the social perspective and purpose and,
within its grammatical flexibility, must further the beneficent object. And so we must
appreciate the Islamic ethos and the general sociological background which inspired the
enactment of the law before locating the precise connotation of the words used in the statute.
7. There has been considerable argument at the bar – and precedents have been piled up
by each side – as to the meaning to be given to the expression ‘failed to provide for her
maintenance’ and about the grounds recognised as valid for dissolution under Muslim law.
Since infallibility is not an attribute of the judiciary, the view has been ventured by Muslim
jurists that the Indo-Anglian judicial exposition of the Islamic law of divorce has not exactly
been just to the Holy Prophet or the Holy Book. Marginal distortions are inevitable when the
Judicial Committee in Downing Street has to interpret Manu and Muhammad of India and
Arabia. The soul of a culture – law is largely the formalised and enforceable expression of a
community’s cultural norms – cannot be fully understood by alien minds. The view that the
Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not
accord with Islamic injunctions. The statement that the wife can buy a divorce only with the
consent of or as delegated by the husband is also not wholly correct. Indeed, a deeper study of
the subject discloses a surprisingly rational, realistic and modern law of divorce and this is a
relevant enquiry to apply Section 2 (ix) and to construe correctly Section 2 (ii) of the Act.
Marriage under Islam is but a civil contract, and not a sacrament, in the sense that
those who are once joined in wed-lock can never be separated. It may be controlled,
and under certain circumstances, dissolved by the will of the parties concerned.
Public declaration is no doubt necessary but it is not a condition of the validity of the
marriage. Nor is any religious ceremony deemed absolutely essential. [The Religion
of Islam by Ahmad A. Galwash, p. 104]
It is impossible to miss the touch of modernity about this provision; for the features
emphasised are precisely what we find in the civil marriage laws of advanced countries and
also in the Special Marriage Act, Act 43 of 1954. Religious ceremonies occur even in Muslim
weddings although they are not absolutely essential. For that matter, many non-Muslim
266

marriages, (e.g. Marumakkathayees) also do not insist, for their validity, on religious
ceremonies and registered marriages are innocent of priestly rituals. It is a popular fallacy that
a Muslim male enjoys, under the Quranic law, unbridled authority to liquidate the marriage.
“The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as
she remains faithful and obedient to him, “if they (namely, women) obey you, then do not
seek a way against them”. (Quran IV:34). The Islamic “law gives to the man primarily the
faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders
the married life unhappy; but in the absence of serious reasons, no man can justify a divorce
either in the eye of religion or the law. If he abandons his wife or puts her away in simple
caprice, he draws upon himself the divine anger for the curse of God, said the Prophet, rests
on him who repudiates his wife capriciously.” As the learned author, Ahmad A. Galwash
notices, the pagan Arab, before the time of the Prophet, was absolutely free to repudiate his
wife whenever it suited his whim, but when the Prophet came. He declared divorce to be “the
most disliked of lawful things in the sight of God. He was indeed never tired of expressing
his abhorrence of divorce. Once he said: "God created not anything on the face of the earth
which He loveth more than the act of manumission (of slaves) nor did He create anything on
the face of the earth which He detesteth more than the act of divorce”. Commentators on the
Quran have rightly observed - and this tallies with the law now administered in some Muslim
countries like Iraq – that the husband must satisfy the court about the reasons for divorce.
However, Muslim law, as applied in India, has taken a course contrary to the spirit of what
the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing
with the wife’s right to divorce. Dr. Galwash deduces.
Marriage being regarded as a civil contract and as such not indissoluble, the
Islamic law naturally recognises the right in both the parties, to dissolve the contract
under certain given circumstances. Divorce, then, is a natural corollary to the
conception of marriage as a contract,
It is clear, then, that Islam discourages divorce in principle, and permits it only
when it has become altogether impossible for the parties, to live together in peace and
harmony. It avoids, therefore, greater evil by choosing the lesser one, and opens a
way for the parties to seek agreeable companions and, thus, to accommodate
themselves more comfortably in their new homes. We have to examine whether the
Islamic law allows the wife to claim divorce when she finds the yoke difficult to
endure “for such is marriage without love...... a hardship more cruel than any divorce
whatever”. The learned author referred to above states, “Before the advent of Islam,
neither the Jews nor the Arabs recognised the right of divorce for women: and it was
the Holy Quran that, for the first time in the history of Arabia, gave this great
privilege to women”. After quoting from the Quran and the Prophet, Dr. Galwash
concludes that “divorce is permissible in Islam only in cases of extreme emergency.
When all efforts for effecting a reconciliation have failed, the parties may proceed to
a dissolution of the marriage by ‘Talaq’ or by ‘Khola’. When the proposal of divorce
proceeds from the husband, it is called ‘Talaq’, and when it takes effect at the
instance of the wife it is called ‘Kholaa’.” Consistently with the secular concept of
marriage and divorce, the law insists that at the time of Talaq the husband must pay
 267

off the settlement debt to the wife and at the time of Kholaa she has to surrender to
the husband her dower or abandon some of her rights, as compensation.
9. The decisions of court and the books on Islamic law frequently refer to the words and
deeds of the Prophet in support of this truly forward step. He said “if a woman be prejudiced
by a marriage, let it be broken off”. “The first ‘kholaa’ case in Islam is quoted by Bukhari in
the following words: The wife of Thabit-ibn-Quais came to the Prophet and said ‘O
Messenger of God, I am not angry with Thabet for his temper or religion; but I am afraid that
something may happen to me contrary to Islam, on which account I wish to be separated from
him.’ The Prophet said: ‘Will you give back to Thabit the garden which he gave to you as
your settlement?” She said, ‘Yes’: Then the Prophet said to Thabit. ‘Take your garden and
divorce her at once’.” (Bukhari is the greatest commentary of Mohammadan orthodox
traditions). “This tradition clearly tells us that Thabit was blameless, and that the proposal for
separation emanated from the wife who feared she would not be able to observe the bounds
set by God namely not to perform her functions as a wife. The Prophet here permitted the
woman to release herself by returning to the husband the ante-nuptial settlement, as
compensation for the release granted to her.” Asma, one of the wives of the Holy Prophet,
asked for divorce before he went to her , and the Prophet released her as she had desired.
10. The Indian Judges have been sharply divided on the woman’s right to divorce. Is she
eligible only if she has not violated her conjugal duties? Or can she ask for it on mere failure
of the husband to provide maintenance for her for two years, the wife’s delinquency being
irrelevant? If the latter view be the law, judges fear that women, with vicious appetite, may
with impunity desert their men and yet demand divorce – forgetting, firstly that even under
the present law, as administered in India, the Muslim husband has the right to walk out of the
wedlock at his whim and secondly, that such an irreparably marred married life was not
worth keeping alive. The learned Munsif chose to follow the leading case in AIR 1951 Nag
375, while in appeal, the Subordinate Judge was impressed by the reasoning in AIR 1950
Sind 8. Neither the Kerala High Court nor the Supreme Court has spoken on the issue and,
speaking for myself, the Islamic law’s serious realism on divorce, when regarded as the
correct perspective, excludes blameworthy conduct as a factor and reads the failure to provide
maintenance for two years as an index of irreconcilable breach, so that the mere fact of non-
maintenance for the statutory period entitles the wife to sue for dissolution.
11. Mulla, in his book on Mahomedan Law, commenting on the failure to maintain the
wife as a ground for divorce under the Act, says:
Failure to maintain the wife need not be wilful. Even if the failure to provide for
her maintenance is due to poverty, failing health, loss of work, imprisonment or to
any other cause, the wife would be entitled to divorce...... unless, it is submitted, her
conduct has been such as to disentitle her to maintenance under the Mahomedan
Law. In 1942 it was held by the Chief court of Sind that the Act was not intended to
abrogate the general law applicable to Mahomedans, and ‘the husband cannot be said
to have neglected or failed to provide maintenance for his wife unless under the
general Mahomedan Law he was under an obligation to maintain her’. The wife’s
suit for divorce was dismissed as it was found that she was neither faithful not
268

obedient to her husband, So also was the wife’s suit dismissed, where the wife, who
lived separately, was not ready and willing to perform her part of marital duties.
The Nagpur High Court read Section 2(ii) of the Act to mean that where the wife
voluntarily stayed away from her husband’s house despite the husband’s request to return to
his house and live with him, there was no neglect or failure to maintain the wife merely
because he did not send any money to her during this period and the wife was not entitled to
claim divorce. Mudholkar, J. was of the view that the words “to provide for her maintenance”
occurring in Cl. (ii) would apply only when there was a duty to maintain under the general
Mahomedan law.
12. The learned Judge explained the need to answer the question with reference to the
Muslim law:
It is true that Act 8 of 1939 observed his Lordship, “crystallises a portion of the
Muslim law.... but it is precisely for that reason that it must be taken in conjunction
with the whole of the Muslim law as it stands. Under the Muslim law, it is the duty of
the wife to obey her husband and to live with him unless he refuses to live with her or
unless he makes it difficult for her to live with him .... When the law enjoins a duty
on the husband to maintain his wife, it is obvious that the wife can only be
maintained at the place where she ought properly to be...... If she wants for no reason
to be maintained elsewhere, she can clearly claim no maintenance from husband
under the Mahomedan law. Since her right to claim maintenance is limited to this
extent by the Mahomedan law, it must necessarily follow that in Cl. (ii) of Section 2
of the Act 8 of 1939 the Legislature intended to refer only to this limited right and to
no other ........... It would be against all canons of judicial interpretation to hold that a
wife’s right of maintenance, in so far as Act 8 of 1939 is concerned, is different from
that contained in the rest of the Mahomedan law.
13. A Division Bench of the Rajasthan High Court (AIR 1956 Raj 102 at p. 103) agreed
with the construction and observed:
(W)e are of opinion that the failure or neglect to provide maintenance in order to
give rise to claim for dissolution, must be without any justification. For if there is
justification, there cannot be said to be neglect. Neglect or failure implies non-
performance of a duty. But if the husband is released from the duty on account of the
conduct of the lady herself, the husband cannot be said to have neglected or failed to
provide maintenance.
The Peshawar court also was of opinion that where the wife was entirely to blame, it
could not be said that the husband had failed or neglected to provide for her maintenance
within the meaning of Section 2 (ii) of the Act. Their Lordships harked back to and endorsed
the opinion expressed in AIR 1944 All 23 “that the word ‘neglect’ implies wilful failure and
that the words ‘has failed to provide’ are not very happy, but even they imply an omission of
duty.” Allsop Ag. C. J., speaking on behalf of the Bench in AIR 1947 All 3, said:
The Act does not mean that the husband is bound to follow his wife wherever she
may go and force money or food or clothes upon her..........If she refused to avail
 269

herself of the shelter which was offered to her, she cannot complain and is certainly
not entitled to a decree.
14. Even here, I may mention that Section 2 (ii) does not speak of the wife’s right of
maintenance but only of the fact of her being provided with maintenance and this is the ratio
of the ruling in AIR 1950 Sind 8. Tyabji, C. J., elaborately examined this branch of Muslim
jurisprudence as well as the precedents under Section 2 (ii) of the Act and wound up:
Having very carefully considered the reasoning in all these cases (His Lordship
adverts to the rulings pro and con) I can see no reason for taking a different view of
the question before us from that which I expressed in Hajra’s case (Suit No. 288 of
1942). The plain ordinary grammatical meaning of the words: ‘Has failed to provide
maintenance’ in Cl. (ii) appears to me to be very clear. It is true that these words
occur in an enactment which deals with the dissolution of Muslim marriages, but the
meaning of these words cannot therefore be different from what it would be for
instance, if these words were used with reference to a Hindu or a Christian or a Parsi
husband .......The question whether there was a failure to maintain was a pure
question of fact, which did not in any manner depend upon the circumstances in
which the failure had occurred..... As I pointed out in Hajra’s case, Muslim morals
and ideas undoubtedly expect every husband to maintain his wife as long as the
marriage subsists, even when the wife does not in law be able to enforce any claim
for maintenance. It is therefore no less correct to speak of a man’s failure to maintain
his wife even when she is not entitled to claim maintenance, than it is to speak of a
man’s failure to pay his debts of honour on bets or his debts which have become time
barred.......In the cases in which it has been held that there could be no failure to
maintain, unless the wife was entitled to enforce a claim for maintenance, the plain
ordinary meaning of the words, it seems to me, was intentionally departed from, on
the express ground that the ordinary meaning of the words was not the one which
could really have been intended, that the really intended meaning had been sought to
be expressed, rather unhappily, by the use of words which in fact had a different
meaning; and the supposed intended meaning which necessarily involved importing
into the enacted words something which was not there, was then preferred to the
ordinary meaning; on the supposition that unless that was done an abrogation of the
general Muhammadan law and a startling state of affairs would result.......
The learned Chief Justice expatiated on the Muslim law and observed:
The principles upon which maintenance is enforced during the subsistence of a
marriage, and those upon which a dissolution is allowed, are entirely different. A
dissolution of a marriage is allowed when a cessation of the state of marriage has in
reality taken place, or the continuance of the marriage has become injurious to the
wife. The continuance of a state of affairs in which a marriage had ceased to be a
reality, when the husband and the wife no longer lived ‘within the limits of Allah’ is
abhorred in Islam, and the prophet enjoined that such a state of affairs should be
ended. The main object of enacting the Dissolution of Muslim Marriages Act was to
bring the law as administered in this sub-continent into conformity with the
authoritative texts.
270

15. Tyabji, C. J. relied on Beckett, J., (AIR 1943 Sind 65) who had made a like approach.
In AIR 1941 Lah 167, Abdul Rashid, J. stated:
Where the words of the statute are unambiguous, effect must be given to them
whatever the consequences. It is laid down expressly in Cl. (iv) of Section 2, that
where the husband has failed to perform without reasonable cause his marital
obligations for a period of three years the wife is entitled to a dissolution of her
marriage. In Cl. (ii), however, the words ‘without reasonable cause’ do not occur. It
must, therefore, be held that whatever the cause may be the wife is entitled to a
decree for the dissolution of her marriage, if the husband fails to maintain her for a
period of two years, even though the wife may have contributed towards the failure
of the maintenance by her husband.:
This observation was extracted, with approval, in the Sind decision and the ancient texts,
traditions and fatwaas were adverted to for holding that the Indian Hanafis had all along
allowed divorce for simple failure by the husband to maintain his wife. The most compelling
argument in the Sind ruling runs thus:
The Muslim marriage differs from the Hindu and from most Christian marriages
in that it is not a sacrament. This involves an essentially different attitude towards
dissolutions. There is no merit in preserving intact the connection of marriage when
the parties are not able and fail ‘to live within the limits of Allah’, that is to fulfil
their mutual marital obligations, and there is no desecration involved in dissolving a
marriage which has failed. The entire emphasis is on making the marital union a
reality, and when this is not possible, and the marriage becomes injurious to the
parties, the Quran enjoins a dissolution. The husband is given an almost unfettered
power of divorce, the only restraints upon him being those imposed by the law
relating to dower and by his own conscience. He has to remember the Prophet’s
words: “Of all things permitted by the law, the worst is divorce.’ The Quran enjoins a
husband either to render to his wife all her rights as a wife and to treat her with
kindness in the approved manner, or to set her free by divorcing her, and enjoins him
not to retain a wife to her injury (Cf. verses II, 229 and 231). Any suspension of the
marriage is strongly condemned (Cf. e.g. Quran IV, 129). The attitude of the Prophet
is illustrated by the well-known instance of Jameela, the wife of Sabit Bin Kais, who
hated her husband intensely although her husband was extremely fond of her.
According to the account given in Bukhari (Bu. 68:11) Jameela appeared before the
Prophet and admitted that she had no complaint to make against Sabit either as
regards his morals or as regards his religion. She pleaded, however, that she could not
be wholeheartedly loyal to her husband, as a Muslim wife ought to be, because she
hated him, and she did not desire to live disloyally (‘in Kufr’). The Prophet asked her
whether she was willing to return the garden which her husband had given to her, and
on her agreeing to do so, the Prophet sent for Sabit, asked him to take back the
garden, and to divorce Jameela. From the earliest times Muslim wives have been held
to be entitled to a dissolution when it was clearly shown that the parties could not live
‘within the limits of Allah’, when (1) instead of the marriage being a reality, a
suspension of the marriage had in fact occurred, or (2) when the continuance of the
 271

marriage involved injury to the wife. The grounds upon which a dissolution can be
claimed are based mainly on these two principles ....... When a husband and a wife
have been living apart, and the wife is not being maintained by the husband, a
dissolution is not permitted as a punishment for the husband who had failed to fulfil
one of the obligations of marriage, or allowed as a means of enforcing the wife’s
rights to maintenance. In the Muslim law of dissolutions, the failure to maintain when
it has continued for a prolonged period in such circumstances, is regarded as an
instance where a cessation or suspension of the marriage had occurred. It will be seen
therefore that the wife’s disobedience or refusal to live with her husband does not
affect the principle on which the dissolution is allowed.
16. I am impressed with the reasoning of Tyabji, C. J. which, in my humble view,
accords with the holy Islamic texts and the ethos of the Muslim community which together
serve as a backdrop for the proper understanding of the provisions of the Act 8 of 1939.
17. I may also point out with satisfaction that this secular and pragmatic approach of the
Muslim law of divorce happily harmonises with contemporary concepts in advanced
countries.
One of the serious apprehensions judges have voiced, if the view accepted in AIR 1950
Sind 8 were to be adopted, is that the women may be tempted to claim divorce by their own
delinquency and family ties may become tenuous and snap. Such a fear is misplaced and (sic)
has been neatly expressed by Bertrand Russel in his “Marriage and Morals”.
One of the most curious things about divorce is the difference which has often
existed between law and custom. The easiest divorce laws by no means always
produce the greatest number of divorces.......I think this distinction between law and
custom is important, for while I favour a somewhat lenient law on the subject, there
are to my mind, so long as the biparental family persists as the norm, strong reasons
why custom should be against divorce, except in somewhat extreme cases. I take this
view because I regard marriage not primarily as a sexual partnership, but above all as
an undertaking to co-operate in the procreation and rearing of children.
The law of the Marumakkathayees provides a large licence for divorce but actual
experience allays the alarm. The law has to provide for possibilities; social opinion regulates
the probabilities. For all these reasons, I hold that a Muslim woman, under Section 2 (ii) of
the Act, can sue for dissolution on the score that she has not as a fact been maintained even if
there is good cause for it--the voice of the law, echoing public policy is often that of the
realist, not of the moralist.
18. The view I have accepted has one other great advantage in that the Muslim woman
(like any other woman) comes back into her own when the Prophet’s words are fulfilled,
when roughly equal rights are enjoyed by both spouses, when the talaq technique of instant
divorce is matched somewhat by the Khulaa device of delayed dissolution operated under
judicial supervision. The social imbalance between the sexes will thus be removed and the
inarticulate major premise of equal justice realised.
19. Act 8 of 1939 does not abrogate the grounds already available to a woman and
Section 2 (ix) is clearly a statutory preservation of prior Islamic rights. I have dilated on the
272

incidents of Khulaa the last gateway for a Muslim woman out of an irreparably embittered
co-existence. Having affirmed the decree under Section 2 (ii) of the Act, the applicability of
Section 2 (ix) is, perhaps, supererogatory. I do not decide the plaintiff’s claim to Khulaa
under Section 2 (ix) of the Act. Having succeeded on the ground set out in Section 2 (ii) of
the Act the respondent is entitled to a divorce. The appeal fails and is dismissed.

*****
 Itwari v. Asghari
AIR 1960 All. 684

S.S. DHAWAN, J. - This is a Muslim husband’s appeal against the decision of the learned
District Judge, Rampur, dismissing his suit for restitution of conjugal rights against his first
wife who refused to return to him after he had taken a second wife and accused him of cruelty
to her. The appellant Itwari was married to Smt. Asghari about the year 1950 and lived with
her for sometime. Then things went wrong and the wife ultimately left him to live with her
parents; but he took no steps to bring her back and married another woman.
The first wife filed an application for maintenance under Sec. 488 Cr. P. C. Thereupon
the husband filed a suit against her for restitution of conjugal rights. For some reasons he
impleaded her father and two brothers as co-defendants. The wife contested the suit and
alleged that she had been turned out by her husband who had formed an illicit union with
another woman whom he subsequently married. She alleged that he had beaten her, deprived
her of her ornaments and thus caused her physical and mental pain. He had also not paid her
dower.
2. The learned Munsif decreed the husband’s suit and held that the wife had failed to
prove that she was really ill-treated and that the husband had not been guilty of such cruelty
as would disentitle him to a decree for restitution of conjugal rights against her. He held that
the mere fact that the husband had taken a second wife raised no presumption that Smt.
Asghari had suffered inequitable treatment at his hands, and was influenced by the husband’s
explanation that he had not taken his second wife to live in his house with Smt. Asghari.
He also took the view that if the wife felt aggrieved by her husband’s second marriage
she should have obtained a decree for dissolution of marriage and expressed surprise that she
had not done so, thereby adopting the strange and inconsistent view that the husband’s
conduct in taking a second wife is a good ground for the first wife to sue for dissolution of
her marriage and put an end to all the rights of the husband but no ground for contesting the
husband’s suit for assertion of the same rights under the same marriage.
The fact that the wife had taken things lying down weighed with the learned Munsif in
disbelieving her allegation of cruelty against Itwari. He decreed the husband’s suit and also
passed an order directing Smt. Asghari's father and brother not to prevent her from going
back to him.
3. On appeal, the learned District Judge, Rampur reversed the finding of the trial court
and dismissed the husband’s suit with costs. He was of the opinion that Itwari had filed his
suit for restitution of conjugal rights only as a counter-blast to the wife’s claim for
maintenance under Sec. 488 Cr. P. C., and pointed out that, after the wife had left him and
been living with her parents for so many years, he took no steps to get her back and that his
long silence was an indication that he never really cared for her. He observed,
In view of this circumstance I am prepared to believe Smt. Asghari’s evidence
that she was ill-treated and turned out by her husband and that the latter is now
putting up a show to get her back only to escape from the liability to pay maintenance
allowance.
274

He took the view that the wife who had been deserted and not taken care of by the
husband for so many years would not find peace with him after another woman had already
been installed as his wife. Accordingly he allowed the wife’s appeal. Against this decision
Itwari had come to this Court in second appeal.
4. Mr. N. A. Kazmi, learned counsel for the appellant urged the following arguments in
support of the appeal. First, in a suit for restitution of conjugal rights the question whether the
husband has been guilty of such cruelty as will defeat his right to consortium is a mixed
question of law and fact, and the High Court in second appeal can re-examine the evidence
and form its own conclusion whether cruelty has been established against the husband.
Secondly, the mere fact that the husband had taken a second wife is no proof of cruelty as
every Muslim has the right to take several wives upto a maximum of four and the view taken
by the District Judge is wrong in law. Thirdly, to defeat a husband’s suit for assertion of his
conjugal rights there must be proof of cruelty of such a character as to render it unsafe for the
wife to return to her husband’s dominion. I shall now proceed to consider these contentions
on merits.
5 The first question is whether the conduct of the husband in taking a second wife is any
ground for the first wife to refuse to live with him or for dismissing his suit for restitution of
conjugal rights. Learned counsel for the husband vehemently argued that a Muslim husband
has the right under his personal law to take a second wife even while the first marriage
subsists. But this right is not in dispute in this case.
The question before the Court is not whether the husband had the right to take a second
wife but whether this Court, as a court of equity, should lend its assistance to the husband by
compelling the first wife, on pain of severe penalties, to live with him after he has taken a
second wife in the circumstances in which he did.
6 A marriage between Mohammedans is a civil contract and a suit for restitution of
conjugal rights is nothing more than an enforcement of the right to consortium under this
contract. The Court assists the husband by an order compelling the wife to return to
cohabitation with the husband. “Disobedience to the order of the Court would be enforceable
by imprisonment of the wife or attachment of her property, or both”. Moonshee Buzloor
Ruheem v. Shumsoonissa Begum [11 Moo I.A.551, 609], Abdul Kadir v. Salima [ILR 8
All 149 (FB)].
But a decree for specific performance of a contract is an equitable relief and it is within
the discretion of the Court to grant or refuse it in accordance with equitable principles. In
Abdul Kadir case, it was held that in a suit for conjugal rights, the Courts in India shall
function as mixed Courts of equity and be guided by principles of equity well-established
under English Jurisprudence. One of them is that the Court shall take into consideration the
conduct of the person who asks for specific performance.
If the Court feels, on the evidence before it, that he has not come to the Court with clean
hands or that his own conduct as a party has been unworthy, or his suit has been filed with
ulterior motives and not in good faith, or that it would be unjust to compel the wife to live
with him, it may refuse him assistance altogether. The Court will also be justified in refusing
specific performance where the performance of the contract would involve some hardship on
 275

the defendant which he did not foresee, whereas its non-performance would involve no such
hardship on the plaintiff.
7. It follows, therefore, that, in a suit for restitution of conjugal rights by a Muslim
husband against the first wife after he has taken a second, if the Court after a review of the
evidence feels that the circumstances reveal that in taking a second wife the husband has been
guilty of such conduct as to make it inequitable for the Court to compel the first wife to live
with him, it will refuse relief.
8. The husband in the present case takes his stand on the right of every Muslim under his
personal law to have several wives at a time upto a maximum of four. He contends that if the
first wife is permitted to leave the husband merely because he has taken a second, this would
be a virtual denial of his right. It is necessary to examine this argument.
9. Muslim Law permits polygamy but has never encouraged it. The sanction for
polygamy among Muslim is traced to the Koran IV. 3,
“If Ye fear that ye cannot do justice between orphans, then marry what seems
good to you of women, by twos, or threes, or fours or if ye fear that ye cannot be
equitable, then only one, or what your right hand possesses.”
This injunction was really a restrictive measure and reduced the number of wives to four
at a time; it imposed a ceiling on conjugal greed which prevailed among males on an
extensive scale. The right to four wives appears to have been qualified by a ‘better not’
advice, and husbands were enjoined to restrict themselves to one wife if they could not be
impartial between several wives – an impossible condition according to several Muslim
jurists; who rely on it for their argument that Muslim Law in practice discourages polygamy.
10. A Muslim has the undisputed legal right to take as many as four wives at a time. But
it does not follow that Muslim Law in India gives no right to the first wife against a husband
who takes a second wife, or that this law renders her helpless when faced with the prospect of
sharing her husband’s consortium with another woman. In India, a Muslim wife can divorce
her husband, under his delegated power in the event of his taking a second wife, Badu Mia v.
Badrannessa, (AIR 1919 Cal 511).
Again a Muslim wife can stipulate for the power to divorce herself in case of the husband
availing of his legal right to take another wife Sheikh Moh. v. Badrunnissa Bibee [7 Beng
LR App 5 (sic)], Badarannissa Bibi v. Mafiattala [7 Beng LR 442]. In Ayatunnessa Beebee
v. Karam Ali [ILR 36 Cal 23], it was held that a Muslim wife, who has the power given to
her by the marriage contract to divorce herself in the event of the husband taking a second
wife does not lose her option by failing to exercise it the very moment she knows that he has
done so, for “a second marriage is not a single but a continuing wrong to the first wife.”
The court significantly described a second marriage as a “continuing wrong” to the first
wife. The implications of these rights of the first wife are unmistakable. To say the least, a
law cannot regard the husband’s right to compel all his wives to submit to his consortium as
fundamental and inviolate if it permits a wife to make a stipulation that she will break up her
marriage on his taking a second wife. Further, the moral foundation of this right is
considerably weakened if the law, while tolerating it, calls it “a continuing wrong” to the first
276

wife and permits her to stipulate that she will repudiate her marriage vows on the coming of
a second wife.
If Muslim law had regarded a polygamous husband’s right to consortium with the first
wife as fundamental and inviolate, it would have banned such stipulations by the wife as
against Muslim public policy. But it has done no such thing. On the contrary Muslim law has
conferred upon the wife stipulated right to dissolve her marriage on her husband taking a
second wife a force overriding the sanctity of the first marriage itself.
If Mohammadan Law permits and enforces such agreements it follows that it prefers the
breaking up of the first marriage to compelling the first wife to share her husband with the
second. The general law, too, recognises the sanctity of such agreements, and it has been held
that a contract restraining a Muslim husband from entering into a second marriage during the
life time of the first is not void under Sec. 23 of the Contract Act which bans agreements in
restraint of marriage.
11. I am, therefore, of the opinion that Muslim Law as enforced in India has considered
polygamy as an institution to be tolerated but not encouraged, and has not conferred upon the
husband any fundamental right to compel the first wife to share his consortium with another
woman in all circumstances. A Muslim husband has the legal right to take a second wife even
while the first marriage subsists, but if he does so and then seeks the assistance of the Civil
Court to compel the first wife to live with him against her wishes on pain of severe penalties
including attachment of property, she is entitled to raise the question whether the court, as a
court of equity, ought to compel her to submit to co-habitation with such a husband. In that
case the circumstances in which his second marriage took place are relevant and material in
deciding whether his conduct in taking a second wife was in itself an act of cruelty to the
first.
12. Mr. Kazmi contended that the first wife is in no case entitled to consider the second
marriage as an act of cruelty to her. I cannot agree. In Shamsunnissa Begum case, the Privy
Council observed that “the Mohammedan Law, on a question of what is legal cruelty between
man and wife, would probably not differ materially from the English Law”. It follows that
Indian Law does not recognise various types of cruelty such as ‘Muslim’ cruelty, ‘Christian’
cruelty, ‘Hindu’ cruelty, and so on, and that the test of cruelty is based on universal and
humanitarian standards that is to say, conduct of the husband which would cause such bodily
or mental pain as to endanger the wife’s safety or health.
13. What the Court will regard as cruel conduct depends upon the prevailing social
conditions. Not so very long ago in England a husband could inflict corporal chastisement on
the wife without causing comment. Principles governing legal cruelty are well established
and it includes any conduct of such a character as to have caused danger to life, limb, or
health (bodily or mental) or as to give a reasonable apprehension of such a danger (Rayden
on Divorce 5th Edition p. 80).
But in determining what constitutes cruelty, regard must be had to the circumstances of
each particular case, keeping always in view the physical and mental condition of the parties
and their character and social status (ibid p. 80). In deciding what constitutes cruelty, the
Courts have always taken into consideration the prevailing social conditions, and the same
 277

test will apply in a case where the parties are Mohammadans, Muslim society has never
remained static and to contend otherwise is to ignore the record of achievements of Muslim
civilisation and the rich development of Mohammedan jurisprudence in different countries.
Muslim jurisprudence has always taken into account changes in social conditions in
administering Mohammedan Law.
Necessity and the wants of social life are the two all-important guiding principles
recognised by Mohammedan Jurisprudence in conformity to which Laws should be
applied to actual cases, subject only to this reservation that rules, which are covered
by a clear text of the Quran or a precept of indisputable authority, or have been
settled by agreement among the learned, must be enforced as we find them. It seems
to me beyond question that, so long as this condition is borne in mind, the Court in
administering Mohammedan Law is entitled to take into account the circumstances of
actual life and the change in the people’s habits, and modes of living: Mohammedan
Jurisprudence by Sri Abdur Rahim, Tagore Law Lecture – 1908 p. 43.
14. The most convincing proof of the impact of social changes on Muslim Law is the
passing of the Dissolution of Muslim Marriages Act 1939 by which the legislature enabled a
Muslim wife to sue for the dissolution of her marriage on a number of grounds which were
previously not available. One of them is the failure of the husband who has more wives than
one to treat all of them equitably in accordance with the injunctions of the Quran.
It is but a short step from this principle to ask a husband who has taken it into his
head to have a second wife during the subsistence of the first marriage to explain the
reasons for this conduct and in the absence of a convincing explanation, to conclude
that there is little likelihood of the first wife By this Act the legislature has made a
distinct endeavour to ameliorate the lot of the wife and we (the Courts) must apply
the law in consonance with the spirit of the legislature. – Sinha J., in Mt. Sofia
Begum v. Zaheer Hasan [AIR 1947 All 16].
I respectfully agree, and would like to add that in considering the question of cruelty in
any particular case, the Court cannot ignore the prevailing social conditions, the
circumstances of actual life and the change in the people’s habits and modes of living.
15. Today Muslim woman move in society, and it is impossible for any Indian husband
with several wives to cart all of them around. He must select one among them to share his
social life, thus making impartial treatment in polygamy virtually impossible under modern
conditions. Formerly, a Muslim husband could bring a second wife into the household
without necessarily meaning any insult or cruelty to the wife. Occasionally, a second
marriage took place with the consent or even at the suggestion of the first wife.
But social condition and habits among Indian Mussalmans have changed considerably,
and with it the conscience of the Muslim community. Today the importing of a second wife
into the household ordinarily means a stinging insult to the first. It leads to the asking of
awkward questions the raising of unsympathetic eyebrows and the pointing of derisive
fingers at the first wife who is automatically degraded by society. All this is likely to prey
upon her mind and health if she is compelled to live with her husband under the altered
circumstances.
278

A husband who takes a second wife in these days will not be permitted to pretend that he
did not realise the likely effect of his action on the feelings and health of the first wife. Under
the law, the husband will be presumed to intend the natural consequences of his own conduct.
Simpson v. Simpson [(1951) 1 All ER 955]. Under the prevailing conditions the very act of
taking a second wife, in the absence of a weighty and convincing explanation, raises a
presumption of cruelty to the first. (The Calcutta High Court called it a “continuing wrong”).
The onus today would be on the husband who takes a second wife to explain his action
and prove that his taking a second wife involved no insult or cruelty to the first. For example,
he may rebut the presumption of cruelty by proving that his second marriage took place at the
suggestion of the first wife or reveal some other relevant circumstances which will disprove
cruelty. But in the absence of a cogent explanation the Court will presume, under modern
conditions, that the action of the husband in taking a second wife involved cruelty to the first
and that it would be inequitable for the Court to compel her against her wishes to live with
such a husband.
16. Mr. Kazmi relied on an observation of the late Sir Din Shah Mulla in his Principles
of Mohammedan Law, 14th edition page 246, that:
cruelty, when it is of such a character as to render it unsafe for the wife to return
to her dominion, is a valid defence.
to a suit for restitution of conjugal rights by the husband. Learned counsel argued that cruelty
which would fall short of this standard is no defence. I do not read any such meaning in that
eminent author’s observation which is really borrowed from the judgment of the Privy
Council in Shamsunnisa Begum case. But I have indicated that the Privy Council observed
in that case that the Mohammedan Law is not very different from the English Law on the
question of cruelty.
The Court will grant the equitable relief of restitution in accordance with the social
conscience of the Muslim community, though always regarding the fundamental principles of
the Mohammedan Law in the matter of marriage and other relations as sacrosanct. That law
has always permitted and continues to permit a Mohammedan to marry several wives upto
the limit of four. But the exercise of this right has never been encouraged and if the husband,
after taking a second wife against the wishes of the first, also wants the assistance of the Civil
Court to compel the first to live with him, the Court will respect the sanctity of the second
marriage, but it will not compel the first wife, against her wishes, to live with the husband
under the altered circumstances and share his consortium with another woman if it concludes,
on a review of the evidence, that it will be inequitable to compel her to do so.
17. Counsel for the appellant argued vehemently that dismissal of the husband’s suit
against the first wife virtually means a denial of his right to marry a second time while the
first marriage subsists. I do not agree. A Muslim husband has always the right to take a
second wife. If he does so, he cannot be prosecuted for bigamy, the second marriage is valid,
the children of the second wife are legitimate and he is entitled to the enjoyment of his rights
(subject to his obligations) under the second marriage.
But it is not at all necessary for the enjoyment and consummation of his rights under the
second marriage that he should apportion his consortium between two women. On the
 279

contrary, nothing is more likely to mar the conjugal bliss of his second marriage than that his
new wife should be asked to share it with the old. The second wife is not likely to view with
sympathy her husband’s attempt to compel the old wife to return to his consortium and, to put
it very mildly, the dismissal of her husband’s suit for restitution against the first wife is not
likely to break the second wife’s heart.
Therefore, if, in his conjugal greed, the husband does not rest content with the enjoyment
of his new connubial bliss but, like Oliver, asks for more, and is refused relief by the Court,
he cannot complain that his rights under the first marriage have been impaired. The Court
will be justified in inquiring whether it will be equitable to compel his first wife to submit to
his consortium in the altered circumstances.
18. Even in the absence of satisfactory proof of the husband’s cruelty, the Court will not
pass a decree for restitution in favour of the husband if, on the evidence, it feels that the
circumstances are such that it will be unjust and inequitable to compel her to live with him.
In Hamid Hussain v. Kubra Begum [AIR 1918 All 235], a Division Bench of this Court
dismissed a husband’s prayer for restitution on the ground that the parties were on the worst
of terms, that the real reason for the suit was the husband’s desire to obtain possession of the
wife’s property and the Court was of the opinion that by a return to her husband’s custody the
wife’s health and safety would be endangered though there was no satisfactory evidence of
physical cruelty.
In Nawab Bibi v. Allah Ditta [AIR 1924 Lah 188], Shadi Lal, C.J. and Zafar Ali, J.
refused relief to a husband who had been married as an infant to the wife when she was a
minor but had not even cared to bring her to live with him even after she had attained the age
of puberty. In Khurshid Begum v. Abdul Rashi [AIR 1926 Nag 234], the Court refused relief
to a husband because it was of the opinion that the husband and wife had been “on the worst
of terms” for years and the suit had been brought in a struggle for the possession of property.
19. These principles apply to the present case. The lower appellate court has found that
the appellant never really cared for his first wife and filed his suit for restitution only to defeat
her application for maintenance. In the circumstances, his suit was mala fide and rightly
dismissed.
20. Lastly, the appellate court, reversing the finding of the trial court, believed the wife’s
allegation of specific acts of cruelty committed by the husband and held that she had been
deserted and neglected by the husband for so many years. In the circumstances, I concur in
the opinion of the District Judge that it will be inequitable to compel the first wife to live with
such a husband. The appeal is dismissed under O. 41, R. 11, C.P.C.

*****
 Danial Latifi v. Union of India
(2001) 7 SCC 740

S. RAJENDRA BABU, J. - The constitutional validity of the Muslim Women (Protection

of Rights on Divorce) Act, 1986 (“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] 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 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 CrPC. The husband
immediately dissolved the marriage by pronouncing a 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 5000 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.
3. Thus, the principal question for consideration before this Court was the interpretation
of Section 127(3)(b) CrPC 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 CrPC. 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 a 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 CrPC even if it is not relevant in the context of Section
127(3)(b) CrPC. Therefore, this Court held that it is a sum payable on divorce within the
meaning of Section 127(3)(b) CrPC and held that mahr is such a sum which cannot ipso facto
absolve the husband’s liability under the Act.
4. 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) CrPC 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 orders against their former husbands under Section
125 CrPC and such applications were not barred under Section 127(3)(b) CrPC. The husband
 281

had based his entire case on the claim to be excluded from the operation of Section 125 CrPC
on the ground that Muslim law exempted him 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) CrPC 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)
CrPC 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 textbooks 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 those textbooks 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 241-42) 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 case 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
282

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 -
(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 the delivery 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 case 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 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 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 CrPC. Thus it was held that there is no
conflict between the provisions of Section 125 CrPC 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 Jaising raised the following contentions in
support of the petitioners and they are summarised as follows:
 283

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 CrPC has been enacted as a matter of public policy.
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 Parsis,
pagans or heathens. It is submitted that Section 125 CrPC 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 CrPC, 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 CrPC is to offset or to meet a
situation where a divorced wife is likely to be led into destitution or vagrancy. Section
125 CrPC 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 CrPC 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 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
CrPC is to avoid vagrancy, the remedy thereunder cannot be denied to Muslim women.
5. The Act is un-Islamic, unconstitutional and it has the potential of suffocating 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 CrPC 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 CrPC 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 CrPC 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 CrPC,
notwithstanding the fact that the conditions precedent for availing of the said remedies
are satisfied.
284

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 the period of iddat and when that fact has 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 CrPC 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
CrPC so as to exclude them and apply personal law and the policy of Section 125 CrPC is not
to create a right of maintenance dehors the personal law. He further submitted that in Shah
Bano case 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 Shah Bano case. He
submitted that this Court has hazarded the interpretation of an unfamiliar language in relation
to religious tenets and such a course is not safe as has been made clear by Aga Mahomed
Jaffer Bindaneem v. Koolsom Bee Bee [ILR 25 Cal 9 (PC)] 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 the 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 Muslim
divorced wife even when there is a denial of the remedy provided under Section 125 CrPC
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 is different and the
enactment is consistent with law and justice.
12. It was further contended on behalf of the respondents that 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
 285

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 issues, bearing in mind the personal
law of the Muslim community and the fact that the benefits of Section 125 CrPC 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 (sic vagrancy) 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 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 the 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 textbooks, such as—
1. The Turjuman Al-Quran by Maulana Abul Kalam Azad, 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-Fiqha Wa Al Qanun by Dr Mustafa-as-Sabayi;
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 textbooks, it is contended that the view taken in
Shah Bano case on the expression “mata” is not correct and the whole object of the
enactment has been to nullify the effect of Shah Bano case so as to exclude the application of
the provision of Section 125 CrPC, 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 Muslims 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 Verse 241 of Chapter II of
The Holy Quran casts an obligation on a former husband to pay maintenance to the Muslim
286

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 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 the 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 a
typical case of a divorce before consummation to the woman whose mahr was not stipulated
and deals with obligatory rights of maintenance for observing the iddat period or for
breastfeeding 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
Gujarat, 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 CrPC 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 of 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 touchstone 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 CrPC 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 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
 287

not contemplate a situation envisaged by Section 125 CrPC 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 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 CrPC. This decision having imposed
obligations as to the liability of the Muslim husband to pay maintenance to his divorced wife,
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 husbands 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 canvas.
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 as 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 decency of life and dictates
of necessity in the pursuit of social justice should be invariably left to be decided on
288

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;
(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 anyone 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.
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 remarried 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
 289

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 anyone 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 CrPC. 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 CrPC, 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 CrPC 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 solemnised either under the Indian Special Marriage Act, 1954 or a Muslim
woman whose marriage was dissolved either under the Indian Divorce Act, 1869 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. 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.
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
290

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 the
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 maintenance to the wife and if he fails to do so then the wife is entitled to
recover it by filing an application before the Magistrate as provided in Section 3(3) but
nowhere has Parliament provided that reasonable and fair provision and maintenance is
limited only for the iddat period and not beyond it. It would extend to the whole life of the
divorced wife unless she gets married for a second time.
29. The important section in the Act is Section 3 which provides that a divorced woman
is entitled to obtain from her former husband “maintenance”, “provision” and “mahr”, and to
recover from his possession her wedding presents and dowry and authorizes the Magistrate to
order payment or restoration of these sums or properties. 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 Sections 3(1)(c) and 3(1)(d) of the Act.
Precisely, the point that arose for consideration in Shah Bano case was that the husband had
not made a “reasonable and fair provision” for his divorced wife even if he had paid the
 291

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 CrPC. 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, 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”, this Court in Shah Bano 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 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 onetime 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 case, actually codifies the very rationale
contained therein.
30. A comparison of these provisions with Section 125 CrPC will make it clear that
requirements provided in Section 125 and the purpose, object and scope thereof being to
prevent vagrancy by compelling those who can do so to support those who are unable to
support themselves and who have a normal and legitimate claim to support are satisfied. If
that is so, the argument of the petitioners that a different scheme being provided under the
Act which is equally or more beneficial on the interpretation placed by us from the one
provided under the Code of Criminal Procedure deprive them of their right, loses its
significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling
those who are under an obligation to support those who are unable to support themselves and
that object being fulfilled, we find it difficult to accept the contention urged on behalf of the
petitioners.
31. Even under the Act, the parties agreed that the provisions of Section 125 CrPC would
still be attracted and even otherwise, the Magistrate has been conferred with the power to
make appropriate provision for maintenance and, therefore, what could be earlier granted by a
292

Magistrate under Section 125 CrPC would now be granted under the very Act itself. This
being the position, the Act cannot be held to be unconstitutional.
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 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
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
241-42 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 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 case. The learned Solicitor-General contended that
what has been stated in the objects and reasons in the 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 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 case this Court has clearly explained as to the rationale behind Section
125 CrPC to make provision for maintenance to be paid to a divorced Muslim wife and this is
clearly to avoid vagrancy or destitution on the part of a Muslim woman. The contention put
forth on behalf of the Muslim 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 Corpn.[(1985) 3 SCC 545]and Maneka Gandhi v. Union of India
[(1978) 1 SCC 248] held that the concept of “right to life and personal liberty” guaranteed
under Article 21 of the Constitution would include the “right to live with dignity”. Before the
Act, a Muslim woman who was divorced by her husband was granted a right to maintenance
from her husband under the provisions of Section 125 CrPC until she may remarry and such a
right, if deprived, would not be reasonable, just and fair. Thus the provisions of the Act
depriving the divorced Muslim women of such a right to maintenance from her husband and
providing for her maintenance to be paid by the former husband only for the period of iddat
and thereafter to make her run from pillar to post in search of her relatives one after the other
and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and
fair substitute of the provisions of Section 125 CrPC. Such deprivation of the divorced
 293

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 on another
construction which is permissible, the statute remains effective and operative the court will
prefer the latter on the ground that the 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 round.
34. The learned counsel appearing for the Muslim organisations contended after referring
to various passages from the textbooks which we have adverted to earlier to state that the law
is very clear that a divorced Muslim woman is entitled to maintenance only up to 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 a 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 II of The Holy Quran has been referred to in Shah Bano case.
Shah Bano case clearly enunciated what the present law would be. It made a distinction
between the provisions to be made and the maintenance to be paid. It was noticed that the
maintenance is payable only up to the stage of iddat and this provision is applicable in case of
normal circumstances, while in case of a divorced Muslim woman who is unable to maintain
herself, she is entitled to get mata. That is the basis on which the Bench of five Judges of this
Court interpreted the various texts and held so. If that is the legal position, we do not think,
we can state that any other position is possible nor are we to start on a clean slate after having
forgotten the historical background of the enactment. The enactment though purports to
overcome the view expressed in Shah Bano case in relation to a divorced Muslim woman
getting something by way of maintenance in the nature of mata is indeed statutorily
recognised by making provision under the Act for the purpose of the “maintenance” but also
for “provision”. When these two expressions have been used by the enactment, which
obviously means that the legislature did not intend to obliterate the meaning attributed to
these two expressions by this Court in Shah Bano case. Therefore, we are of the view that the
contentions advanced on behalf of the parties to the contrary cannot be sustained.
294

35. In (many cases) while interpreting the provision of Sections 3(1)(a) and 4 of the Act,
it is held that a divorced Muslim woman is entitled to a fair and reasonable provision for her
future being made by her former husband which must include maintenance for the future
extending beyond the iddat period. It was held that the liability of the former husband to
make a reasonable and fair provision under Section 3(1)(a) of the Act is not restricted only
for the period of iddat but that a divorced Muslim woman is entitled to a reasonable and fair
provision for her future being made by her former husband and also to maintenance being
paid to her for the iddat period. A lot of emphasis was laid on the words “made” and “paid”
and were construed to mean not only to make provision for the iddat period but also to make
a reasonable and fair provision for her future. A Full Bench of the Punjab and Haryana High
Court in Kaka v. Hassan Bano [(1998) 2 DMC 85 (P&H) (FB)] has taken the view that
under Section 3(1)(a) of the Act a divorced Muslim woman can claim maintenance which is
not restricted to the iddat period. To the contrary, it has been held that it is not open to the
wife to claim fair and reasonable provision for the future in addition to what she had already
received at the time of her divorce; that the liability of the husband is limited for the period of
iddat and thereafter if she is unable to maintain herself, she has to approach her relatives or
the Wakf Board, by majority decisions in Usman Khan Bahamani v. Fathimunnisa Begum
[AIR 1990 AP 225 (FB)], Abdul Rashid v. Sultana Begum [1992 Cri LJ 76 (Cal)], Abdul
Haq v. Yasmin Talat [1998 Cri LJ 3433 (MP)] and Mohd. Marahim v. Raiza Begum
[(1993) 1 DMC 60]. Thus preponderance of judicial opinion is in favour of what we have
concluded in the interpretation of Section 3 of the Act. The decisions of the High Courts
referred to herein that are contrary to our decision stand overruled.
36. While upholding the validity of the Act, we may sum up our conclusions:
(1) A Muslim husband is liable to make reasonable and fair provision for the future of the
divorced wife which obviously includes her maintenance as well. Such a reasonable and fair
provision extending beyond the iddat period must be made by the husband within the iddat
period in terms of Section 3(1)(a) of the Act.
(2) Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of
the Act to pay maintenance is not confined to the iddat period.
(3) A divorced Muslim woman who has not remarried and who is not able to maintain
herself after the iddat period can proceed as provided under Section 4 of the Act against her
relatives who are liable to maintain her in proportion to the properties which they inherit on
her death according to Muslim law from such divorced woman including her children and
parents. 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.
37. In the result, Writ Petitions Nos. 868, 996, 1001, 1055, 1062, 1236, 1259 and 1281 of
1986 challenging the validity of the provisions of the Act are dismissed.

*****
 295

Rana Nahid and Ors. Vs. Sahidul Haq

MANU/SC/0487/2020

R. Banumathi, J.

1. This appeal arises out of the judgment dated 28.07.2010 passed by the High Court of Rajasthan
Bench at Jaipur in S.B. Criminal Revision Petition No. 295 of 2009 in and by which High
Court allowed the revision petition filed by the Respondent thereby setting aside the order
passed by the Family Court which has converted the application for maintenance Under Section
125 Code of Criminal Procedure into Section 3 of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 and also setting aside the maintenance amount awarded to Appellant No. 1.
2. Brief facts of the case which led to the filing of this appeal are thatthe marriage between Appellant
No. 1-Rana Nahid @ Reshma@ Sanaand Respondent Sahidul Haq Chisti was solemnized on 08-03-
1998 as per the Muslim rites and Appellant No. 2- son was born out of the wedlock. Alleging
that Appellant No. 1 was subjected to cruelty and harassment for additional dowry and that
she was thrown out of matrimonial home, Appellants filed a petition Under Section 125 Code
of Criminal Procedure against the Respondent. Thereafter, on 24-03-2008, Appellant No. 1
amended the petition on the basis of divorce given on 23-04-2008 by the Respondent-
Sahidul. The Appellants averred that the Respondent is working as a lecturer in Rajkiya
Moiniya Senior Secondary School, Ajmer and has been earning a sum of Rs. 20,000/- per month
approximately and he also serves in "Mehmani ki Dargah" from where he earns Rs. 20,000/-
per month and thus claimed a maintenance of Rs.6,000/- per month towards her maintenance and
Rs. 2,500/- per month towards maintenance of her son-Appellant No. 2 herein. The Respondent has
admittedthatheis alecturerinGovt.Job andreceivesasalaryofRs.18,500/-per month.
3. The Family Court held that as the Appellant No. 1 is a Muslim divorced woman, her petition for
maintenance Under Section 125 Code of Criminal Procedure is not maintainable. The
Family Court treated the said application Under Section 125 Code of Criminal Procedure as
application Under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act,
1986 (Muslim Women's Protection Act) in the light of the judgment of this Court in Iqbal Bano v.
State of Uttar Pradesh and Anr. MANU/SC/2545/2007 : (2007) 6 SCC 785. The Family Court
ordered Respondent- Sahidul Haq to pay rupees three lakh in lump sum to Appellant No. 1
towards her maintenance and future livelihood. The application of Appellant No. 2
claiming maintenance has been accepted Under Section 125 Code of Criminal Procedure and the
Respondent has been ordered to pay Rs. 2,000/- per month towards his maintenance till
he attainsmajority.
4. Being aggrieved by the quantum of maintenance, the Appellants filed Revision Petition No.
295 of 2009 before the High Court of Rajasthan at Jaipur for enhancement of maintenance. The
Respondent also filed Revision Petition No. 221 of 2009 against the order of the Family Court.
While the matter was pending before the High Court, a sum of Rs. 1,00,000/- was paid by the
Respondent to Appellant No. 1. The High Court held that the application Under Section 125
Code of Criminal Procedure was made before the Family Court which does not have
jurisdiction to entertain an application Under Section 3 of the Muslim Women's Protection Act.
The High Court held that the order of the Family Court converting the application Under Section
125 Code of Criminal Procedure into an application Under Section 3 of the Act is without
296

jurisdiction and on those findings, set aside the order of the Family Court to that extent and allowed
the revision preferred by the Respondent. However, liberty was given to Appellant No. 1 to file an
applicationUnderSection3oftheActof1986 before the Court of competent Magistrate. So far as
the amount of rupees one lakh already paid to Appellant No. 1, she was allowed to retain it,
subject to the final outcome of the application Under Section 3 of the Act. The High Court,
however, maintained the maintenance amount awarded to Appellant No. 2.
5. It is submitted by the learned Counsel for the Appellants that the Family Court has jurisdiction to
decide cases Under Section 3 of the Muslim Women's Protection Act and the High Court was not
right in setting aside the same and erred in directing the Appellant No. 1 to file application Under
Section 3 of Muslim Women's Protection Act.
6. Refuting the contentions, learned Counsel for the Respondent submitted that an application Under
Section 125 Code of Criminal Procedure cannot be maintained by a Divorced Muslim Wife unless
there is a consent of both that the Husband and the divorced Wife to be governed by Section 125
Code of Criminal Procedure as per Section 5 of the Muslim Women's Protection Act. It was
furthersubmitted thatthe Family Court has no jurisdiction to entertain applications Under Section
3 of the Act as the jurisdiction to file the case under Muslim Women's Protection Act has not been
conferred on the family courts Under Section 7(2) (b) of the Family Courts Act, 1984.
7. Having regard to the rival contentions, the question falling for consideration is whether the
family court has jurisdiction to try application filed by Muslim divorced woman for maintenance
Under Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986.
8. For proper appreciation of the contentions, we may usefully refer to the provisions of the Act and the
genesis of the enactments thatare under consideration before us.
9. Under the Muslim personal law, a divorced woman could be awarded maintenance only during the
iddat period and not later. In Mohd. Ahmed Khan v. Shah Bano Begum and Ors.
MANU/SC/0194/1985 : (1985) 2 SCC 556, the Supreme Court upheld the right of Muslim
divorced wife Under Section 125 Code of Criminal Procedure because Explanation (b) of
Section 125(1) Code of Criminal Procedure includes a divorced wife till she
remarries. In Shah Bano case, the Supreme Court has held that a Muslim divorced
woman unable to maintain herself is entitled to claim maintenance Under Section 125 Code of
Criminal Procedure even after the iddat period was over.
10. After Shah Bano case, the Muslim Women (Protection of Rights on Divorce) Act (For short
'Muslim Women Protection Act') was enacted with effect from 19.05.1986 as per which adivorced
Muslim woman is not only entitled to maintenance for the iddat period from her former husband
but also to a reasonable and fair provision for the future. The preamble of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 reads as under:
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.
11. Muslim Women (Protection of Rights on Divorce) Act, 1986 does not deviate itself from
the purpose, object and scope of the provisions of maintenance under Criminal Procedure
Code. The provisions of the Act are not inconsistent with the provisions of Chapter IX of
the Code. The provision of this enactment provides remedies beneficial to the Muslim
women divorcee by making the former husband liable to provide the divorced woman with
reasonable and fair provision in addition to providing maintenance and where the husband fails to
 297

comply with the order without sufficient cause, the Magistrate may issue warrant for
levying the amount of maintenance and may sentence him to imprisonmentfor atermwhich
may extend to one year. The near relatives of the woman are also made liable Under Section 4 of
the Act. In case, the relatives are not in a position to pay her, the State Wakf Board is also made
liable to provide maintenance. While the Code of Criminal Procedure provides the relief
of maintenance only, the Act of 1986 furnishes to divorcedwoman,additionally, 'a reasonable
and fair provision', the relief of recovery of dower and return of marital gifts.
12. The important Section in the Act, 1986 is Section 3 which provides that a divorced woman
is entitled to obtain from her former husband "maintenance", "reasonable and fair Provision"
and "Mahr" etc. After the enforcement of the Muslim Women's Protection Act, a divorced
Muslim woman is entitled to maintenance not only for the period of iddat from her former
husband but also to a reasonable and fair provision for her future. The wordings of Section 3 of
the Act 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.
Section 3 of the Act prescribes forum for redress and the manner in which the order is to be
executed. The Act confers exclusive jurisdiction on the Magistrate of the First Class to entertain
an application under the Act by a Muslim woman where she resides.
13. In Danial Latifi and Anr. v. Union of India, MANU/SC/0595/2001 : (2001) 7 SCC 740, the
Constitution Bench of the Supreme Court considered the constitutional validity of the
provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and upheld the
validity of the provisions of the Act and held as under:
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 divorceecan 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
herorhasnotdelivered thepropertiesgiventoherbeforeoratthetime 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 andmaintenancetothedivorcedwomanashemaythinkfitand properhaving
regardtotheneedsofthedivorcedwoman,standardof 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 the 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 maintenancetohiserstwhilewifeafterdivorceandtheperiodofiddat.
.........
The important Section in the Act is Section 3 which provides that a divorced woman is entitled
to obtain from her former husband "maintenance", "provision" and "mahr", and to recover from
his possession her wedding presents and dowry and authorizes the Magistrate to order payment or
restoration of these sums or properties. 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 thatthe husband has
298

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",butonthetimebywhichan 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 perSections3(1)(c)and3(1)(d)oftheAct "
A comparison of these provisions with Section 125 Code of Criminal Procedure will make it clear
that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent
vagrancy by compelling those who can do so to support those who are unable to support themselves
and who have a normal and legitimate claim to support are satisfied. If that is so, the argument of the
Petitioners thata different schemebeing provided under the Act which is equally or more beneficial on
theinterpretationplacedbyusfromtheoneprovided undertheCodeofCriminalProceduredeprivethemof
their right, loses its significance. The object and scope of Section 125 Code of Criminal Procedure
is to prevent vagrancy bycompelling those who are under an obligation to support those who areunable
to support themselves and that object being fulfilled, we find it difficult to accept the contention
urged on behalf of thePetitioners.
[Underlining added]
The Constitution Bench upheld the provisions of the Act. But the Constitution Bench did not authoritatively
decide on the question whether the Family Court would have jurisdiction to entertain an application
filed by a divorced Muslim Woman for maintenance under the provisions of the Muslim Women
Protection Act
14. Under Section 3(1)(a) of the 1986 Act, a divorcee is entitled to get a reasonable and fair provision
and maintenance to be made and paid to her within the iddat period. On construing the
expression, "a fair and reasonable provision and maintenance" as used in Section 3(1)(a) of
the 1986 Act, the Supreme Court in Danial Latifi case has summed up its conclusion as
under:
36. Whileupholding thevalidityof theAct,wemaysumupourconclusions:
(1) A Muslim husband is liable to make reasonable and fair provision for the future of the
divorced wife which obviously includes her maintenanceaswell. Such areasonableand 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 a Muslim husband to his divorced wife arising Under Section 3(1)(a) of the Act
to pay maintenance is not confined to the iddat period.
(3) A divorced Muslim woman who has not remarried and who is not able to maintain herself
after the iddat period can proceed as provided Under Section 4 of the Act against her
relatives who are liable to maintain her in proportion to the properties which they inherit
on her death according to Muslim law from such divorced woman including her children
and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct
theState WakfBoardestablishedundertheActtopaysuchmaintenance.
(4) TheprovisionsoftheActdonotoffendArticles14,15and21of the Constitution of India.
15. Section 3 of 1986 Act opens with the words "notwithstanding anything contained in any other law
for the time being in force," a divorced woman shall be entitled to rights enumerated in Clauses (a)
 299

to (d) of Section 3(1) of 1986 Act. Muslim Women Protection Act may have conferred more
rights but the Act confers these rights notwithstanding anything contained in Section 125 Code
of Criminal Procedure The non-obstante Clause has to be understood fairly and reasonably. The
non-obstante Clause cannot be lightly assumed to bring in the effect of supersession. It should not
be allowed to demolish or extinguish the existing right unless the legislative intention
is clear, manifest and unambiguous. In Shabana Bano v. Imran Khan
MANU/SC/1859/2009 : (2010) 1 SCC 666, the Supreme Court quashed the order of
the Family Court holding that even if the Muslim wife had been divorced during the
period her application for maintenance is pending, she would be entitled to claim
maintenance from her husband Under Section 125 Code of Criminal Procedure So,
the case has been remanded to Family Court for disposal of the case on its merits in
accordance with law.
16. We may also refer to Section 5 of the Muslim Women's Protection Act which gives
divorced Muslim couples "an option to be governed by the provisions of Sections 125 to
128 of the Code of Criminal Procedure, 1973" which they could jointly exercise at the first
hearing of the case under the Act. Section 5 of the Act enables the parties at the stage of first
hearing, to withdraw from the applicability of the Muslim Women's Protection Act and be
governed by the provisions of Criminal Procedure Code. Under Section 5 of the Muslim Women
Protection Act, on the date of the first hearing, a divorced woman and her former husband can
declare thattheyprefertobegovernedbySections125to128ofthe Code and then the Magistrate
has to dispose of the application accordingly. Otherwise, the Magistrate has to deal with the
application as per the provisions of the Muslim Women Protection Act. Section 7 of the Muslim
Women Protection Act deals with Transitional Provisions. As per Section 7 of the Act, an
applicationbya divorced woman Under Section125 or UnderSection 127 of the Code pending
before a Magistrate on the commencement of Muslim Women Protection Act, shall,
notwithstanding anything contained in that Code, subject to the provisions of Section 5 of the
Act, shall be disposed of by such Magistrate in accordance with the provisions of the Muslim
Women Protection Act. This makes the legal provision very clear.That is only a Magistrate of the
First Class exercising jurisdiction under the Code can dispose of the application in accordance
withtheprovisionsofthe Muslim Women Protection Act.
17. The Family Courts Act, 1984 was enacted in public interest for the establishment of Family Courts
for the speedy settlement of family disputes and it came into force on 14.09.1984. The
jurisdiction of Family Courts is provided for in Section 7 of the Act. Sections 7 and 8 of the Act
read as under:
7. Jurisdiction. -- (1) Subject to the other provisions of this Act, a Family Court shall --
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under
any law for the time being in force in respect of suits and proceedings of the nature referred to in the
Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or,
as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court
extends.

Explanation. -- The suits and proceedings referred to in this Sub-section are suits and proceedings of the
following nature, namely:
300

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage
(declaring the marriage to be null and void or, as the case may be, annulling the marriage) or
restitution of conjugalrightsorjudicialseparationordissolutionofmarriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial
status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the
parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital
relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise --
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for
maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(a) such other jurisdiction as maybe conferred on it by any other enactment.

18. Section 7(1)(a) of the Family Courts Act confers the entire jurisdiction hitherto exercised by any
district court or any subordinate civil court in suits or proceedings relating to matters mentioned in
clauses (a) to (g) of the Explanation. Sub-clause (b) creates a legal fiction endowing upon the
Family Courts the status of the District Court or subordinate Civil Court. Section 7(1) can apply
only when:(i) the suit or proceeding is of the nature envisaged by Clauses (a) to (g) of the
Explanation; and (ii) concerning the matter where the jurisdictions are exercisable by any
District Court or Subordinate Court. On these counts, the application Under Section 3 of
Muslim Women's Protection Act cannot be said to be covered by Section 7(1) of the Act. As
provided in Section 3(2) of Muslim Women's Protection Act, application can be moved only
before the First Class Magistrate having jurisdiction in the area under Criminal Procedure Code.
Thus, an application Under Section 3 of the Act cannot be maintained before the Family Court
UnderSection7(1)oftheFamilyCourtsAct.
19. Section 7(2)(a) confers jurisdiction upon the Family Court hitherto exercisable by a First Class
Magistrate under Chapter IX (relating to order for maintenance of wife, children and parents) of the
Criminal Procedure Code. Sub-section (2)(a) of Section 7 of the Family Courts Act confers limited
jurisdiction upon the Family Court relating to those matters only as are covered under Chapter IX
of Criminal Procedure Code. Section 7(2)(b) however relates to conferment of any additional
jurisdiction on the Family Courts by other enactments. This provision is in the nature of an
enabling provision by which legislature can enlarge the Court's jurisdiction by conferring
additional jurisdiction.
20. The expression "conferred on it" occurring in Sub-clause (b) of Section 7(2) speaks of
conferment of the jurisdiction on the Family Court by an enactment. Thus, Under Section 7(2)(b),
the jurisdiction must be specifically conferred and cannot be assumed or deemed to have
been conferred. The provisions of the Muslim Women's Protection Act do not confer any
jurisdiction on the Family Court. As pointed out earlier, Section 3(2) of the Muslim
Women's Protection Act provides that the application may be made to a Magistrate; but not
to the Family Court. The Muslim Women's Protection Act was enacted in 1986 subsequent to the
 301

Family Courts Act, 1984. In the light of the provisions, Under Section 3(2) of the
Muslim Women's Protection Act especially conferring jurisdiction upon the First Class
Judicial Magistrate, the application Under Section 3 can lie only to the Magistrate having
jurisdiction in thearea.
21. Considering the provisions of Section 3 of Muslim Women's Protection Act vis-Ã - vis the
provisions of the Family Courts Act in Anjum Hasan Siddiqui v. Smt. Salma B.
MANU/UP/0073/1992 : AIR 1992 All 322, the learned Single Judge of the Allahabad High
Court held as under:
8. Apart from the above no application Under Section 3 lies to the district court or sub-ordinate civil
court. As provided in Section 3(2) of 1986 Act, the application can be moved before the first class
Magistrate having jurisdiction in the area under the Code of Criminal Procedure. Thus, Section
7(1)does not help the Respondent at all.
9. Sub-clause (2) of Section 7 of the Family Court Act is also of no help to the Respondent since the
Act confers only a limited jurisdiction relating to those maters only as are covered by Chapter IX
of the Criminal P.C. Only this limited jurisdiction has been transferred to the Family Court. To this
extent alone, the first Class Magistrate having jurisdiction in the area for which Family Court
has been established loses his jurisdiction which is thence forth exercisable by the Family Court
only.
10. Thus, we have seen that neither Under Sub-section (1) nor Under Sub- section (2) of Section 7
the Family Court's Act has any jurisdiction to entertain an application of the nature
contemplated by Section 3 of the 1986 Act.
11. Faced with such a situation the learned Counsel for the Respondent turned to Sub-section
(2)(b). He urged that jurisdiction may be deemed to have been conferred on the Family Court under
this provision. We are afraid, the learned Counsel is again on a weak ground. The words 'conferred on
it' in Sub-clause (b) speaks of conferment of jurisdiction on the Family Court by an enactment.
The jurisdiction must be specifically conferred and cannot be assumed to have been conferred. No
provisions of 1986 Act however, confers any such jurisdiction on the Family Court. On the other
hand Section 3(2) of the 1986 Act provides that the application may be made to a Magistrate and
not to the Family Court. Apart from this the 1986 Act was enacted subsequent to the Family
Court Act and its provisions supersedes all earlier enactments. Hence this Section must prevail
over the Family Courts Act, 1984. Thus an application Under Section 3 can lie only to the
Magistrate having jurisdiction in thearea.
12 . Section 3 of the 1986 Act itself recognises rights of divorced Muslim Woman, prescribes a
forum for redress thereof and prescribes the manner of execution of the order made in that behalf. This
makes the Act complete in itself and does not depend for support on any other enactment. The Section
begins with a non-obstante Clause and it overrides all other provisions of the then existing laws. Alt
provisions contrary to what is contained in Section 3 of 1986 Act, including the Family Courts Act,
1984, shall stand superseded by its provision. A comparison of the provisions of 1984 and 1986
Acts would also show that the purpose and scope of the two Acts is somewhat different. Section 3 is
only limited to certain claims enumerated therein which alone can be put forward by a divorced
Muslim Woman under the Act in the mannerprescribed......

(Underlining added)
22. The question whether the Family Court has jurisdiction to try application of the Muslim divorced
302

woman for maintenance after coming into force the Muslim Women's Protection Act, was
considered by the Full Bench of Bombay High Court in Karim Abdul Rehman Shaikh v.
Shehnaz Karim Shaikh and Ors. MANU/MH/0595/2000 : 2000 (3) Mh.L.J. 555 which also
took the same view that a Muslim woman can apply Under Sections 3 and 4 of the Muslim
Women's Protection Act only to the First Class Magistrate having jurisdiction under the Code and
the Family Court cannot deal with such applications and held asunder:
61. It is important to note that there is no enactment containing an express provision that the Family Court
shall have jurisdiction to deal with applications made by a divorced Muslim women Under Sections 3
and 4 of the Muslim Women Act. On the contrary, the scheme of the Muslim Women Act shows thatsuch
application can be made only to the Magistrate of First Class exercising jurisdiction under the Code. The
Family Court's Act is a prior enactment. Muslim Women Act does not even refer to the Family Court's Act. Ifit
wastheintentionof thelegislaturetoseethataMuslim womencanfile application before a Family Court an
express provision to that effect would have been found in the Muslim Women Act. On the contrary, Under
Section 5 of the Muslim Women Act, a divorced women and her former husband can declare that they
prefer to be governed by Sections 125 to 128 of the Code and then the Magistrate has to dispose of the
application accordingly. Otherwise, the Magistrate has to deal with it as per the provisions of the
Muslim Women Act. There is no provision under which a Muslim women can prefer to go to a Family
Court by making a joint declaration with her husband. Section 7 says that application by a divorced
women Under Section 125 or Under Section 127 of the Code pending before a Magistrate on the
commencement of the Muslim Women Act shall notwithstanding anything contained in that Code and
subject to the provisions of Section 5 of the Muslim Women Act shall be disposed of by such
Magistrate in accordance with the provisions of the Muslim Women Act. This makes the legal provision
very clear. It is only a Magistrate of the First Class exercising jurisdiction under the Code who can
dispose of even the pending applications and that too in accordance with the provisions of the Muslim
Women Act. Therefore, there is nothing in the provisions of the Muslim Women Act to suggest that the
Family Court has jurisdiction to entertain applications Under Sections 3 and 4 of the Muslim Women
Act.

62. Similar view has been taken by Division Bench of this Court in Noor Jamaal's case (supra) and
we respectfully concur with the said view. We do not concur with decision of the Division Bench of
this Court in Allabuksh's case (supra) which holds that, where a Family Court has been established, the
power and jurisdiction of the Family Court to entertain an application by a divorced Muslim wife is not
taken away expressly or by necessary implication by the Muslim Women Act and the remedy
under the Muslim Women Actis anadditional remedy.In ouropinion, the factthattheMuslim WomenAct
doesnotrefertoaFamily Courtor doesnot say thatapplicationUnder Sections 3and 4canbefiled beforethe
Family Court is very material. If the jurisdiction of the Family Court was sought to be protected, there
would have been an express provision making it clear that the Family Court has jurisdiction to
entertain applications of divorced Muslim women Under Sections 3 and 4 of the Muslim Women
Act. We therefore hold that after coming into force of the Muslim Women Act, a Muslim women can
apply Under Sections 3 and 4 of the said Act only to the First Class Magistrate having jurisdiction
undertheCode. The Family Court cannot deal with such applications.

[Underlining added]
23. In the present case, we are concerned with the question whether the application Under Section 3(2) of
 303

the Act of 1986 can be filed before the Family Court or whether the Family Court can convert the
petition for maintenance Under Section 125 Code of Criminal Procedure to one Under Section 3
or Section 4 of the Act of 1986. I fully agree with the view taken by the Full Bench of the Bombay
High Court in Karim Abdul Rehman Sheikh case. Since the Muslim Women's Protection Act, 1986
does not refer to the Family Court or does not say that an application Under Sections 3 and 4 can be
filed before the Family Court, in my view, the Family Court cannot entertain the application
of divorced Muslim woman Under Sections 3 and 4 of the Muslim Women's Protection
Act, 1986.
24. The learned Counsel for the Appellant placed reliance upon the judgment in Iqbal Bano case and
submitted that in the said case, the Magistrate has converted the petition for maintenance
Under Section 125 Code of Criminal Procedure to the application Under Section 3 of the
Muslim Women's Protection Act, 1986 and the same was upheld by the Supreme Court. The facts
of the Iqbal Bano case are clearly distinguishable from the facts of the present case. In Iqbal Bano
case, the application Under Section 125 Code of Criminal Procedure was made before the Magistrate
which also had jurisdiction to entertain application Under Section 3 of the Muslim Women's
Protection Act. In that context, the Supreme Court upheld the order converting the application
Under Section 125 Code of Criminal Procedure as the one Under Section 3 of the Muslim Women's
Protection Act.
25. Therefore, the application Under Section 3(2) of the Act of 1986 by the divorced wife has to be filed
before the competent Magistrate having jurisdiction if she claims maintenance beyond the iddat
period. Even if the Family Court has been established in that area, the Family Court not having
been conferred the jurisdiction Under Section 7 of the Family Courts Act, 1984 to entertain
an application filed Under Section 3 of the Muslim Women Protection Act, the Family
Court shall have no jurisdiction to entertain an application Under Section 3(2) of the Act of
1986. The Family Court, therefore, cannot convert the petition for maintenance Under
Section125 Code of Criminal Procedure to one Under Section 3 or Section 4 of the Act of 1986.
The High Court, in my view, rightly held that the Family Court has no jurisdiction to
entertain the petition Under Sections 3 and 4 of the Act of 1986 and that the Family Court cannot
convert the petition for maintenance Under Section 125 Code of Criminal Procedure toone Under
Section3or Section 4of theAct of 1986.I do not find any reason warranting interference with the
impugned order.
26. In the result, the appeal is dismissed. The High Court has given liberty to Appellant No. 1
to file application Under Section 3 of the Act of 1986 before the competent Magistrate. The
application if any already filed by the Appellant No. 1 or any application to be filed before the
competent Magistrate of the First Class shall be heard and disposed of as expeditiously as possible.
The Magistrate of the First Class shall not be influenced by any of the views expressed by this
Court or by the High Court and shall consider the matter on its own merits.
Indira Banerjee, J.
27. I have gone through the judgment prepared by my esteemed sister, but I have not been able to
persuade myself to agree that a Family Court constituted under the Family Courts Act, 1984, lacks
jurisdiction to convert an application for maintenance filed by a Muslim woman Under Section 125
of the Code of Criminal Procedure 1973 (hereinafter referred to as "Cr.P.C.") to an application
Under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, (hereinafter
referred to as the "1986 Act for Muslim Women"), and decide the same.
304

28. The facts giving rise to this appeal, have been narrated by my esteemed sister and are not
repeated to avoid prolixity
29. The Family Courts Act, 1984 has been enacted to provide for the establishment of Family Courts inter
alia with a view to secure speedy settlement of disputes relating to marriage and family affairs and
for matters connected therewith.
30. The Statement of Objects and Reasons for enactment of the Family Courts Act records that
several associations of women, other organizations and individuals from time to time, demanded
that Family Courts be set up for the settlement of family disputes, where emphasis should be
laid on conciliation and achieving socially desirable results and adherence to rigid Rules of
procedure and evidence should be eliminated.
31. The Law Commission had, in its 59th Report submitted in 1974, stressed that in dealing with
disputes concerning the family, the Court ought to adopt an approach, radically different from that
adopted in ordinary civil proceedings, and that it should makereasonable effortsatsettlementbefore
the commencement of the trial. In 1976, the Code of Civil Procedure was amended to provide for a
special procedure to be adopted in suits and proceedings relating to matters concerning the
family.
32. Parliament enacted the Family Courts Act to provide for establishment of Family Courts with a
view to promote conciliation in, and secure speedy settlement of disputes relating to marriage
and family affairs, and matters connected therewith.
33. The Family Courts Act is a secular statute,which applies to matterscontemplated therein, irrespective
of the religion of the litigating parties. Section 3 of the Family Courts Act provides for
establishment of Family Courts, after consultation with the High Court.
34. The Family Courts established Under Section 3 of the Family Courts Act, derive jurisdiction
from Section 7 of the said Act which is set out herein below for convenience:
7. Jurisdiction
(1) Subject to the other provisions of this Act, a Family Court shall—
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court
under any law for the time being in force in respect of suits and proceedings of the nature referred to
in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district
court or,as the case may be, such subordinate civil court for the area to which the jurisdiction
of the Family Court extends.
Explanation.--The suits and proceedings referred to in this Sub- section are suits and proceedings of
the following nature, namely:
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring
the marriage to be null and void or, as the case may be, annulling the marriage) or
restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of amarriageor astothematrimonial statusof
anyperson;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties
or of either of them;
a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;
(d) a suit or proceeding for a declaration as to the legitimacy of any person;
(e) a suit or proceeding for maintenance;
 305

(f) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to,
any minor.
(2) Subjecttotheotherprovisions of thisAct,aFamilyCourtshall also have and exercise—
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order
for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2
of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.

35. Section 8 of the Family Courts Act provides:

'Exclusion of jurisdiction and pending proceedings.
Where a Family Court has been established for any area,--
(a) no district court or any subordinate civil court referred to in Sub- section (1) of Section 7 shall, in
relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of
the nature referred to in the Explanation to that Sub-section;
(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under
Chapter IX of the Code of Criminal Procedure, 1973 (2 of1974);
(c) every suit or proceeding of the nature referred to in the Explanation to Sub-section (1) of
Section 7 and every proceeding under Chapter IX of the Code of CriminalProcedure, 1973 (2
of 1974),--
(i) which is pending immediately before the establishment of such Family Court before any
district court or subordinate court referred to in that Sub-section or, as the case may be, before
any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken beforesuch Family Courtif, beforethe
date on which such suit or proceeding was instituted or taken, this Act had come into force and
suchFamilyCourthadbeenestablished,
shall stand transferred to such Family Court on the date on which it is established.
36. On a reading of Section 7(1) along with explanation (f) to Section 7(1) of the Family Courts Act, it
is patently clear that the Family Court, established Under Section 3 of the Family Courts Act, is
clothed with the jurisdiction and powers exercisable by a District Court or any Subordinate Civil
Court, under any law for the time being in force, to entertain and decide any suit or proceeding for
maintenance, which would include an application Under Section 3 of the 1986 Act for Muslim
Women.
37. A Family Court, constituted for adjudication of family disputes, is quite different from the regular
Criminal and Civil Courts. The atmosphere in these Courts is much more informal and far less
intimidating than the atmosphere in regular Civil and Criminal Courts. These Courts are not
bound by Rules of evidence and Rules of procedure. The Family Courts have the power to
devise their own procedure for adjudication of family disputes.
38. Section 5 of the Family Courts Act contemplates association with Family Courts, of social welfare
organizations, persons professionally engaged in promoting welfare of the family, persons
working in the field of social welfare and any other persons, whose association with the Family
Court, would enable it to exercise its jurisdiction more effectively, in accordance with the
purposes of theFamily Courts Act.
39. Section 6 of the Family Courts Act provides for appointment, inter alia, of counsellors to
assist a Family Court, in the discharge of its functions, and Section 9of the Family Courts Act casts
306

a duty on the Family Courts to endeavour, wherever it is possible, to assist and persuade the parties in
arriving at a settlement in respect of the subject matter of the suit or proceeding, and for this purpose a
Family Court may, subject to any Rules made by the High Court, follow such procedure as it may
deem fit. Unlike a Criminal Court or a Civil Court, a Family Court is obliged to adjourn
proceedings, whenever there is reasonable possibility of settlement between the parties.
40. The Family Court is to be deemed to be a Civil Court and have all the powers of such Court Under
Section 10 of the Family Courts Act, and subject to the other provisions of the Family Courts
Act and the Rules made thereunder, the provisions of the Civil Procedure Code, 1908 (hereinafter
referred to as 'CPC') apply tosuits and proceedings before the Family Court, except for
proceedings under Chapter IX of the Code of Criminal Procedure.
41. Notwithstanding Sub-section (1) and Sub-section (2) of Section 10 of the Family Courts Act, which
makes the provisions of the Code of Civil Procedure applicable to suits and proceedings before
the Family Court, other than those under Chapter IX of the Code of Criminal Procedure, and the
provisions of the Code of Criminal Procedure applicable to all the proceedings under Chapter IX
of that Code, it is open to the Family Court to lay down its own procedurewith aview to arrive ata
settlementin respect of the subject matter of the suit or proceeding.
42. Section 12 of the Family Courts Act envisages the assistance inter alia of professional
experts in the field of family welfare, whether or not related to the parties, to assist the Family
Courts in discharging their functions imposed by the Family Courts Act.
43. An important facet of the Family Courts Act is Section 13 of the said Act, which provides that
notwithstanding anything contained in any law, no party to any suit or proceedings before a Family
Court, shall be entitled as of right, to be represented by a legal practitioner. If the Family Court
considers it necessary in the interest of justice, it may seek the assistance of a legal expert as
amicus curiae. In this country, women are, by and large, economically weaker. In the regular
Civil and Criminal Courts, economically weak applicants, unable to afford lawyers of standing
could be pitted against the best legal brains hired by financially strong opponents. However, in
proceedings for maintenance in the Family Court, the parties are equally poised, with the same
standard of legal representation.
44. Another significant feature of the Family Courts Act is Section 14, which enables a Family Court to
receive as evidence, any report, statement, document, information or matter that may in its opinion
help to deal effectively with a dispute, whether or not the same would be otherwise relevant or
admissible under the Indian Evidence Act, 1872.
45. Under Section 16 of the Family Courts Act, the evidence of any person which is of a formal
character,maybe given by affidavit, and subjectto justexceptions, be read in evidence in any suit
or proceedings before a Family Court.
46. Therefore, in proceedings for maintenance, in a Family Court, Certificates, Documents etc.
issued by Authorities/Employers etc. may be proved by affidavits, without requiring presence in
Court of disinterested witnesses, whose failure and/or inability to appear in Court on the dates of
hearingoftendelaystheproceedings.
47. Section 18 of the Family Courts Act makes a decree or order other than an order under Chapter IX of
the Code of Criminal Procedure executable in the same manner as a decree of a Civil Court, as
prescribed by the Code of Civil Procedure. An order under Chapter IX of the Code of Criminal
Procedure may be executed in the manner prescribed for theexecution of such order by theCode of
Criminal Procedure.
 307

48. Where a Family Court has been established for any area, Section 8 of the Family Courts Act
denudestheDistrict CourtoranySubordinate Civil Courtreferredtoin Sub-section (1) of Section
7 of jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to
that sub-section.
49. Section 8(b) of the Family Courts Act prohibits any Magistrate from exercising jurisdiction or
powers under Chapter IX of the CR.P.C. in relation to any area for which a Family Court has
been established.
50. It is important to note that Section 20 of the Family Courts Act, with its non- obstante Clause
gives the provisions of the Family Courts Act overriding effect, over any other law, which would
include the 1986 Act for Muslim Women. The Family Courts Act is to have effect,
notwithstanding anything inconsistent therewith, contained inanyotherlaw,forthetimebeing
in force, or in any instrument having effect, by virtue of any law other than the Family Courts
Act.
51. The non-obstante Clause in Section 20 makes the legislative intent in enacting the Family Courts
Act absolutely clear. The provisions of the Act are to have effect, notwithstanding anything
inconsistent in any other law for the time being in force. In my view, the expression "in any other
law, for the time being in force", cannot be construed narrowly to mean a law which was in
force on the date of enactment and/or enforcement of the Family Courts Act, as sought to be
argued by Counsel appearing on behalf of the Respondent. The expression "any other law for the
time being in force" would include subsequently enacted laws, in force, as long as Section 20 of the
Family Courts Act is in operation.
52. On a reading of Sections 7(1) and 7(2) of the Family Courts Act, it is patently clear that a Family
Court is deemed to be a District Court, or as the case may be Subordinate Civil Court, in the
area to which the jurisdiction of the Family Court extends, in respect of proceedings of the
nature, referred to in the Explanation to Section 7(1) and is to be deemed to be the Court of a
Magistrateof theFirst classfor the purpose of exercising jurisdiction under Chapter IX of the
Code of Criminal Procedure Proceedings for maintenance are essentially civil proceedings.
53. As observed above, the Family Courts have jurisdiction in respect of the matters specified in the
Explanation (f) of Section 7(1), irrespective of religion or faith of the parties to the litigation.
Wherever a Family Court is constituted, such Family Court not only exercises the jurisdiction
and powers of any District Court or Subordinate Civil Court in respect of suits and other
proceedings of the nature referred to in the Explanation (f) to Section 7(1), that is, suits and other
proceedings for maintenance, it also exercises the jurisdiction and powers of a Magistrate of the
First Class under Chapter IX of the Code of Criminal Procedure.
54. Here the relevant provisions are section 125 – 128 of Chapter IX of the Code of Criminal
Procedure 1973. are set out hereinbelow for convenience:

125. ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

Order for maintenance of wives, children and parents.-(1) If any person having sufficient means
neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimateorillegitimateminorchild, whethermarriedornot, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where
such child, is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
308

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may,
upon proof of such neglect or refusal, order such person to make a monthly allowance for
the maintenance of his wife or such child, father or mother, at such monthly rate, as such
Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time
direct;
Explanation.-For the purposes of this Chapter,-
(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is
deemed not to have attained his majority;
(b) "wife includes a woman who has been divorced by, or has obtained a divorce from, her
husband and hasnotremarried.

126. Procedure.-(1) Proceedings Under Section 125 may betaken against any person in anydistrict-
(a) where he is, or
(b) where he or his wife, resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate
child.
(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for
payment of maintenance is proceeded to be made, or, when his personal attendance is dispensed with, in the
presence of his pleader, and shall be recorded in the manner prescribed for summons- cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of
maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attendthe Court, the
Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good
cause shown on an application made within three months from the date thereof subject to such terms
including terms at to payment of costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications Under Section 125 shall have power to make such order as
to costs as may be just.
127 Alteration in allowance.-.......
128. Enforcement of order of maintenance.-A copy of the order of [maintenance or interim
maintenance and expenses of proceeding, asthe case may be,] shall be given without payment to the person
in whose favour it is made, or to his guardian, if any or to the person to [whom the allowance for the
maintenance or the allowance for the interim maintenance and expensesof proceeding,asthecasemay
be,] is to be paid; and such order may be enforced by any Magistrate in any place where the person against
whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment
of the [allowance, or as the case may be, expenses, due].

55. The right to equality, irrespective of religion, is a basic human right, recognized, reaffirmed and
reiterated in the Universal Declaration of Human Rights adopted by the United Nations on
December10,1948.Article2of thedeclaration reads:

Article 2: Everyone is entitled to all the rights and freedoms set forth in the declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or otherstatus.

56. The International Covenant for Civil and Political Rights (ICCPR) obligates the state parties to
 309

ensure equal right of women to enjoyment of all rights mentioned in each of the covenants. This
right is irrespective of religion. Article 14 of the ICCPR mandates "All persons shall be equal
beforetheCourtsandTribunals"and Article 26 declares that "all persons are equal under the
law and are entitled without anydiscrimination,toequal protectionof thelaw".
57. The Convention on the Elimination of All Forms of Discrimination against Women 1979,
commonly referred to as CEDAW, recognizes amongst others, the right of women to equality
irrespective of religion, as a basic human right. Article 2 of CEDAW exhorts State Parties to
ensure adoption of a woman friendly legal system and woman friendly policies and practices.
58. As a signatory to the CEDAW, India is committed to adopt a woman friendly legal system and
woman friendly policies and practices. The 1986 Act for Muslim Women, being a post CEDAW
law, this Court is duty bound to interpret the provisions of the said Act substantively, liberally, and
purposefully, in such a manner as would benefit women of the Muslimcommunity.
59. Under the Indian Constitution, the right to equality is a fundamental right. All persons are equal
before the law and are entitled to equal protection of the laws, be it substantive law or procedural
law. Article 15 of the Constitution of India clearly prohibits discrimination on grounds, inter
alia, of religion or sex.
60. The competing and conflicting principles of religious freedom of citizens and gender
equality for women, has posed a major challenge to the judiciary in India. Personal laws of the
Muslims, which are governed by the Shariat law, are protected under the umbrella of religious
freedom and therefore immune from challenge on the ground of violation of any fundamental right or
other constitutional right. Procedural laws would not, however, enjoy the same immunity to
challenge which substantive Muslim Personal Laws enjoy.
61. Section 125 of the Code of Criminal Procedure is a beneficial piece of legislation, specially enacted
as a measure of social justice, the dominant purpose whereof is to ensure that a wife including a
divorced wife, a child or a parent is not driven to penury and vagrancy. The Section provides a
simple speedy remedy, inter alia, for a wife including a divorced wife, who is neglected by her
husband/ex husband, even though he has sufficient means to maintain her. Such a wife or
divorced wife can obtain an order of maintenance from a Magistrate.
62. ProceedingsUnderSection125of theCodeof Criminal Procedureareof acivil nature,as held by
this Court in Vijay Kumar Prasad v. State of Bihar MANU/SC/0317/2004 : (2004) 5
SCC 196. There is no penal provision for neglect and/or failure tomaintain a wife or a divorced
wife. However,noncomplianceof an order of maintenance attracts the penal provisions of the Code
of Criminal Procedure. In Zohara Khatoon and Anr. v. Mohd. Ibrahim MANU/SC/0186/1981 :
(1981) 2 SCC 509, this Court held that wife includes a woman who has obtained a decree for
dissolution of marriageundertheDissolution of MuslimMarriagesAct,1939.
63. In Md. Ahmed Khan v. Shah Bano Begum and Ors. MANU/SC/0194/1985 : (1985) 2 SCC 556, this
Court held that Section 125 of the Code of Criminal Procedure, which obliges a husband to pay
maintenance to his wife, including a divorced wife, cannot be overridden by the personal laws
of the Muslims.
64. This Court held that although Muslim law limits the husband's liability to provide for maintenance
of the divorced wife to the period of iddat, it would be unjust to extend this principle of Muslim
law to a case, where a divorced wife is unable to maintain herself, in which case she could have
recourse to Section 125 of the Code of Criminal Procedure Unfortunately, the aforesaid judgment
led to protests, from a Section of the Muslim community, after which Parliament enacted the
310

1986 Act for Muslim Women, which nullified the effect of the judgment of this Court in the Shah
Bano Case (supra).
65. The 1986 Act for Muslim Women has been enacted 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.
66. Section 3 of the 1986 Act for Muslim Women provides:
Section 3. Mahr or other properties of Muslim woman to begiven to herat the time of divorce.
(1) Notwithstanding anything contained in anyotherlaw for thetime being in force, a divorced woman
shall be entitled to
(a) a reasonable and fair provision and maintenance to be madeandpaidtoherwithin theiddatperiod
byherformer husband;
(b) where she herself maintains the children born to her before or after her divorce, a reasonable
and fair 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 suchchildren;
(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 her marriage by her
relatives or friends or the husband or any relatives of the husband or his friends.
(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due
has not been made or 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.
(3) Where an application has been made Under Sub-section (2) by a divorced woman, the Magistrate
may, if he is satisfied that-- (a) her husband having sufficient means, has failed or neglected to make
or pay her within the iddat period a reasonable and fair provision and maintenance for her and the
children; or (b) the amount equal to the sum of mahr or dower has not been paid or that the
properties referred to in Clause (d) of Sub-section (1) have not been delivered to her, 3 make an
order, within one month of the date of the filing of the application, directing her former husband to
pay such reasonable and fair provision and maintenance to the divorced woman as he may
determine as it 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 her former husband or, as the case may
be, for the payment of such mahr or dower or the delivery of such properties referred to in Clause
(d) of Sub-section (1) the divorced woman: Provided that if the Magistrate finds it
impracticable to dispose of the application within the said period, he may, for reasons to be
recorded by him, dispose of the application after the said period.
(4) If any person against whom an order has been made Under Sub- section (3) fails without sufficient
causetocomply with theorder, the Magistrate may issue a warrant for levying the amount of
maintenance or mahr or dower due in the manner provided for levying fines under the
Code ofCriminal Procedure, 1973 (2 of 1974), and may sentence such person, for the whole or
part of any amount remaining unpaid after the execution of the warrant, to imprisonment for
a term which may extend to one year or until payment if sooner made, subject to such person
being heard in defence and the said sentence being imposed according to the provisions of
the saidCode.
 311

67. Under Section 3(1) of the 1986 Act for Muslim Women, a divorced Muslim woman would
be entitled to (a) a reasonable and fair provision and maintenance to bemadeand paid toher within
the iddat period by her former husband; (b) where she herself maintains the children born to
her before or after her divorce, a reasonable and fair 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; 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) to all the properties given to
her before or at the time of marriage or after her marriage by her relatives or friends or the husband
or any relatives of the husband or his friends.
68. Section 3(1) of the 1986 Act for Muslim Women, starts with a non obstante clause. The
non-obstante Clause in Section 3(1) gives overriding effect to the substantive provisions
of Section 3(1) of 1986 Act for a Muslim women. A divorced Muslim woman would be
entitled to maintenance in accordance with Section 3(1) of the 1986 Act for Muslim Women,
notwithstanding anything contained in any other law in force, including Sections 125 to 128 of
the Code of Criminal Procedure The non- obstante Clause is restricted in its application to Sub-
section (1) of Section 3. It doesnot apply to Sub-sections (2) and (3) of the 1986 Act for Muslim
Women.
69. . Section 2(c) of the 1986 Act for Muslim women defines "Magistrate to mean Magistrate
of the First Class, exercising jurisdiction under the Code of Criminal Procedure, 1973 in
the area where the divorced woman resides".
70. Section 4 of the 1986 Act for Muslim Women, enabling the Magistrate to direct relatives to pay
maintenance in certain circumstances, is not relevant for the purpose of this application. Section 5
which gives the option to the divorced woman and her husband to be governed by the
provisions of Section 125 to 128 of the Code of Criminal Procedure, provided they give a
declaration by affidavit, is also not attracted in this case, since the Respondent has not agreed to be
governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure.
71. . Section 7 provides that every application by a divorced Muslim woman Under Section
125 or Section 127 of the Code of Criminal Procedure, pending before a Magistrate at the
time of commencement of the 1986 Act for Muslim Women shall, notwithstanding anything
contained in that Code, and subject to the provisions of Section 5 of the 1986 Act for Muslim
Women, of exercising option to be governed by the aforesaid provisions of the Code, be
disposed by the Magistrate in accordancewith theprovisions of 1986ActforMuslim women.
72. . In this case, the Appellant made an application Under Section 125 of Code of Criminal
Procedure claiming maintenance as wife. In course of the proceedings, it transpired that the
Appellant'shusbandhaddivorcedherbythe'Triple Talaq' method, after which the application
of the Appellant was treated as an application Under Section 3 of the 1986 Act for Muslim
Women. It may be pertinent to note that divorce by the 'Triple Talaq' is no longer valid, after
enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019.
73. The question which arises for determination of this Court is, whether the 1986 Act for Muslim
Women, particularly Section 3(2), 3(3), 3(4), 4(c), 4(2) and 7 thereof read with the definition of
"Magistrate" in Section 2(c), impliedly bars the jurisdiction of the Family Court to entertain or
decide anapplication filed by adivorced Muslim Woman for maintenance. A rigid, constricted
reading of the 1986 Act for Muslim Women, to denude the Family Courts constituted under the
Family Courts Act of jurisdiction to decide an application thereunder, is in my view impermissible
312

in law.
74. There can be no dispute that the Family Court alone has jurisdiction in respect of personal and family
matters relating to women and men, irrespective of their religion. Family matters of Muslim women
pertaining inter alia to marriage, divorce etc. are decided by Family Courts, as also claims of
Muslim wives to maintenance Under Section 125 of the Code of Criminal Procedure There could
be no reason to single out divorced Muslim wives to deny them access to the Family Courts, and
that in my view, was never the legislative intent of the 1986 Act for Muslim Women.
75. Equality before the law and equal protection of the laws envisaged in Article 14 of the
Constitution of India applies as much to procedural laws as to substantive laws. This
proposition finds support from the judgment of this Court in State of West Bengal v. Anwar Ali
Sarkar reported in MANU/SC/0033/1952 : AIR 1952 SC 75 Reference may also be made to
the judgment of this Court in D.K. Yadav v. J.M.A. Industries Ltd. reported in
MANU/SC/0529/1993 : (1993)3SCC 259wherethis Cour held:
10. In State of W.B. v. Anwar Ali Sarkar per majority, a seven-Judge Bench heldthattheRuleof
procedurelaiddownbylawcomesasmuchwithinthe purviewofArticle14oftheConstitutionas
anyRuleofsubstantivelaw...
76. . In Lachhman Dass v. State of Punjab reported in MANU/SC/0032/1962 : AIR 1963 SC
222, a Constitution Bench of this Court accepted that Article 14 prohibited discriminatory
legislation whether substantive or procedural. However, the majority found that Article 14 did not
forbid reasonable classification and accordingly rejected a challenge to a law which provided a
special procedure for the recovery of dues from the customers of State Bank. In Lachhman Dass
(supra) the majority held:
22. ....The law is now well settled that while Article 14 prohibits discriminatory
legislation directed against one individual or class of individuals, it does not forbid
reasonable classification, and that for this purpose even one person or group of persons can be a
class. Professor Willis says in his Constitutional Law p. 580 "a law applying to one person or one
class of persons is constitutional if there is sufficient basis or reason for it...
23 .On the principles stated above we are of the opinion that the Patiala State Bank is aclass by itself
and it will be within thepowerof the State to enactalawwithrespecttoit.Wearealsooftheopinionthatthe
differentia between the Patiala State Bank and the other Banks has a rational bearing on the object of the
legislation. If the Funds of the Patiala State Bank are State Funds, a law which assimilates the procedure
for the determination and recovery of amounts due to the Bank from its customers to that prescribed for
the determination and recovery of arrears of revenue must be held to haveajustandreasonablerelationto
thepurposeof thelegislation. A law which provides for State funds being advanced to customers through
State Bank can also provide for its being recovered in the same manner as revenue....
77. Subba Rao J., delivering a separate dissenting judgment held:

51. It is also well settled that the guarantee of equal protection applies against substantive as
well as procedural laws. Jennings in his "Law of the Constitution", 3rd Edn., p. 49 describes the idea
of equality of treatment thus:..'

78. It is true that the view of Subba Rao J. was the minority view. However, there was no difference
between the majority and the minority with the proposition of law summarized by Subba J. as
quoted above.
 313

79. In Meenakshi Mills v.Vishvanatha Sastri reported in MANU/SC/0035/1954 : AIR 1955 SC 13, a
Constitution Bench of this Court held:
6 . .....Article 14 of this Part guarantees to all persons the right of equality before the law and equal
protection of the laws within the territory of India. This Article notonly guaranteesequal protection asregards
substantive laws but procedural laws also come within its ambit. The implication of the Article is that all
litigants similarly situated are entitled to avail themselves of the same procedural rights for relief, and for
defence with like protection and without discrimination. The procedural provisions of Act 30 of 1947
had therefore to stand the challenge of Article 14 and could only be upheld provided they with stood
that challenge.
80. In Budhan Choudhry v. State of Bihar reported in MANU/SC/0047/1954 : AIR 1955 SC
191, a seven Judge Constitution Bench of this Court decided a challenge to Section 30 of
the Code of Criminal Procedure observing that:

5 . The provisions of Article 14 of the Constitution have come up for discussion before this Court
in a number of cases, namely, Chiranjit Lal Chowdhuri v. Union of India [MANU/SC/0009/1950 : AIR
1951 SC 41], State of Bombay v. F.N. Balsara [MANU/SC/0009/1951 : AIR 1951 SC 318], State of West
Bengal v. Anwar Ali Sarkar [MANU/SC/0033/1952 : AIR 1952 SC 75], Kathi Raning Rawat v. State of
Saurashtra[MANU/SC/0041/1952 : AIR 1952 SC 123], Lachmandas Kewalram Ahuja v. State of
Bombay [MANU/SC/0034/1952 : AIR 1952 SC 235] and Qasim Razvi v. State of Hyderabad
[MANU/SC/0083/1953 : AIR 1953 SC 156] and Habeeb Mohamad v. State of Hyderabad
[MANU/SC/0080/1953 : AIR 1953 SC 287]. It is, therefore, not necessary to enter upon any
lengthy discussion as to the meaning, scope and effect of the Article in question. It is now well
established that while Article 14 forbids class legislation, it does not forbid reasonable classification for
the purposes of legislation. In order, however, to pass the test of permissible classification two conditions
must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped together from others left out of the group and (ii) that
differentia must have a rational relation to the object sought to be achieved by the statute in question. The
classification may be founded on different bases; namely, geographical, or according to objects or
occupations or the like. What is necessary is that theremust be a nexus between the basis of classification
and the object of the Act under consideration. It is also well established by the decisions of this Court that
Article 14 condemns discrimination not only by a substantive law but also by a law of procedure. The
contention now put forward as to the invalidity of the trial of the Appellants has, therefore to be tested in the
light of the principles so laid down in the decisions of this Court.

81. The non-obstante Clause in Section 3(1) of the 1986 Act for Muslim Women provides, in
effect and substance, that a divorced Muslim woman would only beentitled to maintenance as
provided in Section 3(1) of the 1986 Act for Muslim Women as enumerated hereinabove,
notwithstandinganyotherlawincluding Section 125 of the Code of Criminal Procedure.
82. It is now settled that a divorced Muslim woman cannot claim maintenance Under Section 125 of the
Code of Criminal Procedure from her husband after the enactment of the 1986 Act for Muslim
Women. However, Under Section 3 read with Section 4 of the 1986 Act for Muslim Women, a
divorced Muslim woman is entitled to an order of maintenance, if she is unable to maintain herself
after the Iddat period and has not remarried. Section 5 of the 1986 Act for Muslim Women
provides that a divorced woman and her former husband might decide by an affidavit or any other
314

declaration in writing, that they would prefer to be governed by the provisions of Section 125 to
128 of the Code of Criminal Procedure.
83. The constitutional validity of the 1986 Act for Muslim Women has been upheld by this Court in
Danial Latifi and Anr.v.Union of India (supra). There is however, no authoritativedecision of this
Court on the question of whether the Family Courts have jurisdiction to decide an application of a
Muslim Woman for maintenance under the provisions of the 1986 Act for Muslim women.
84. As observed above Section 7 of the Family Courts Act expressly confers jurisdiction to a
Family Court to exercise all jurisdiction exercisable by any District Court or any Subordinate
Civil Court, under any law for the time being in force, in respect inter alia of all suits and
proceedings for maintenance. The Family Court has also expresslybeen conferred with jurisdiction
exercisable by a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure
relating to maintenance. Under Section 7(2)(b) of the Family Courts Act, the Family Court may
exercise such other jurisdiction as may be conferred on it by any other enactment.
85. The Family Courts Act, enacted long before enactment of the 1986 Act for Muslim Women,
obviously did not contemplate the later legislation. There is, therefore, no specific mention of the
1986Actfor Muslim Women in theFamily Courts Act.
86. Section 8 excludes the jurisdiction of District Court or Subordinate Civil Court in respect of any
suit or proceeding of the nature referred to in the Explanation to Sub- section (1) of Section 7 and
also excludes the jurisdiction of a Magistrate in relation to an application under Chapter IX of the
Code of Criminal Procedure, once a Family Court is constituted with territorial jurisdiction
coextensive with that of the District Courts or the Subordinate Civil Courts or the Courts of First
Class Magistrates under Chapter IX of the Code of Criminal Procedure There has not been any
amendment in the Family Courts Act afterenactment of the 1986 Act for Muslim Women to expressly
confer jurisdiction on Family Courts in respect of proceedings under the 1986 Act for Muslim
Women.
87. It has thus been argued on behalf of the Respondent that the Family Courts do not have the
jurisdiction exercisable by a Magistrate of the First Class under the 1986 Act for Muslim Women,
since the 1986 Act for Muslim Women, does not confer any such jurisdiction on the Family
Courts, and Section 7 read with Section 8 of the Family Courts Act only clothes the Family Court
with the jurisdiction of the First Class Magistrate in respect of proceeding for maintenance under
Chapter IX of the Code of Criminal Procedure.
88. If thereis anyambiguity,with regardtothe jurisdiction of theFamily Court,by reason of use of the
expression subordinate Civil Court in Section 7(1)(a) and (b) of the Family Courts Act and the
specification of Magistrate of the First Class exercising jurisdiction under Chapter IX of the
Code of Criminal Procedure in Section 7(2)(a) thereof, this Court is duty bound to clear the
ambiguity by interpreting the law in consonance with the fundamental rights conferred Under
Articles 14 and 15 of the Constitution, and the country's commitments under International
Instruments and Covenants such as the CEDAW, keeping in mind the fact that the Family Courts
Act was enacted two years before the 1986 Act for Muslim Women.
89. In Iqbal Bano v. State of UP and Anr. MANU/SC/2545/2007 : (2007) 6 SCC 785, this Court held
that the 1986 Act for Muslim Women only applies to divorced women and not to a woman who was
not divorced. In the aforesaid case, this Court held that proceedings Under Section 125 of the
Code of Criminal Procedure were civil in nature, and if it were noticed that there was a divorced
Muslim woman who had made an application under Section 125 Code of Criminal Procedure, it
 315

was open to the Court to treat the same as a petition under the 1986 Act for Muslim
Women, considering the beneficial nature of the legislation.
90. Sub-section (2) of Section 3 provides that where a reasonable and fair provision and maintenance or
the amount of mahr or dower due has not been made or paid or the properties referred to in Clause (d)
of Sub-section (1) of Section 3 have not been delivered to a divorced woman on her divorce, she or
any one duly authorized by her may,on her behalf, make an application to a Magistrate for an order
for paymentof such provision and maintenance, mahr or dower or the delivery of properties, as the
case may be. In my view, a Family Court having jurisdiction is to be deemed to be the Court of a
Magistrate, for the purpose of deciding the claim of a divorced Muslim Woman to maintenance,
on a harmonious conjoint reading and construction of Sections 7 and 8 of the Family Courts Act
with Sections 3(2), 3(3), 4(1), 4(2), 5 and 7 of the 1986 Act for Muslim Women, in the light of
the overriding provision of Section 20 of the Family Courts Act.
91. Sub-section (2) of Section 3 is an enabling provision which enables a divorced Muslim woman
to make an application to a Magistrate for an order for paymentof maintenance or mehr or dower
or delivery of properties, as the case may be. The non-obstante Clause is restricted to Sub-section
(1) of Section 3 and does not cover Sub-section (2) of Section 3 of the 1986 Act for Muslim
Women. There is no conflict between Section 3(2) of the 1986 Act for Muslim women and the
Family Courts Act. On the other hand, Section 20 of the Family Courts Act, 1984 gives overriding
effect to the Family Courts Act notwithstanding anything therewith contained in any other law in
force. The Family Court is to exercise all the jurisdiction exercisable by any District Court or
any other subordinate Civil court in respect of a proceeding for maintenance.
92. The 1986 Act for Muslim Women is essentially a civil law, which makes provisions for
maintenance for divorced Muslim women and not a criminal statute. The 1986 Act for Muslim
women does contain any penal provision for any default which enables a divorced Muslim
Woman to apply for maintenance under the said Act. The penal provision of the 1986 Act for
Muslim Women is only to enforce compliance with an order Under Section 31 of the said
Act. The punishment of imprisonment is only for non-compliance with the order of
maintenance. The Magistratereferredtoin Section3(2)andotherSectionsof the1986 Act,is,for
all practical purposes, to be deemed to be a Civil Court subordinate to the District Court.
93. Though divorced Muslim women are excluded from the purview of Section 125 of the Code of
Criminal Procedure by reason of the 1986 Act for Muslim Women, Parliament has in its
wisdom considered it necessary to make provisions for expeditious orders in applications for
maintenance filed by divorced Muslim women. It is with this object in mind that Muslim
women have been given the liberty of approaching the Magistrate and the Magistrate is
required to make an order within one month from the date of filing of the application and the order
of the Magistrate is executable in the same manner for levying fines under the Code of
Criminal Procedure Violation of an order of the Magistrate entails sentence of imprisonment for a
term which might extend to one year or until payment if sooner made, subject to such person being
heard in defence and the sentence being imposed according to the provisions of the Code of
Criminal Procedure.
94. In my view, it was never the intention of the 1986 Act for Muslim Women todeprive divorced
Muslim Women from the litigant friendly procedures of the Family Courts Act and denude
Family Courts of jurisdiction to decide applications for maintenance of divorced Muslim
women.
316

95. If proceedings Under Section 125 Code of Criminal Procedure are civil in nature as held by this
Court in Iqbal Bano (Supra), the Court of the Magistrate dealing with an application Under Section
125 Code of Criminal Procedure is to be deemed a Civil Court for the purpose of deciding the
application Under Section 125 Code of Criminal Procedure On a parity of reasoning, an application
Under Section 3/4 of the 1986 Act for Muslim Women is also civil in nature. The Court deciding
an application Under Section 3/4 of the 1986 Act for Muslim Women is to be deemed to be a Civil
Court.
96. Thus, the Family Court would have jurisdiction Under Section 7 of the Family CourtsAct
toentertainanapplicationUnderSection3and4of1986Actfor MuslimWomen, since the Court
of Magistrate dealing with such an application is to be deemed to be a Civil Court
subordinate to the District Court.
97. A literal and rigid interpretation of the expression "Subordinate Civil Court" to single out
divorced Muslim Women seeking maintenance from their husbands, access to Family Courts
when all other women whether divorced or not and even Muslim Women not divorced can
approach Family Courts would be violative of Article 14 of the Constitution.
98. It is true, that a matter which should have been, but has not been provided for in a statute cannot be
supplied by courts, as to do so will be legislation and not construction. But there is no
presumption that a 'casus omissus' exists and language permitting, the courts should avoid creating a
'casus omissus' where there is none.
99. To quote Denning, L.J. in Seaford Court Estates Ltd. v. Asher reported in(1949) 2 All ER 155:

When a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to
work on the constructive task of finding of the intention of Parliament and then he must supplement the
written words so as to give 'force and life' to the intention of the Legislature. A judge should ask himself the
question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would
have straightened it out? He must then do as they would have done. A judge must not alter the material of
which the actis woven, buthe can and should iron outthe creases.
100. The Supreme Court, while dealing with the definition of 'Industry' in the Industrial
Disputes Act, 1947, in Bangalore Water Supply v. A. Rajappa MANU/SC/0257/1978 : AIR
1978 SC 548, approved the Rule of construction stated by Denning, L.J. This Court found the
definition too general and ambiguous. BEG, C.J.I., said that the situation called for "some
judicial heroics to cope with the difficulties raised". Krishna Iyer, J. who delivered the leading
majority judgment in that case referred with approbation to the passage extracted above, from
the judgment of Denning, L.J. in Seaford Court Estates Ltd. v. Asher (supra).

101. The proposition of law which emerges from the judgments referred to above is that, in discharging
its interpretative function, the court can even correct obvious drafting errors. In an appropriate
case, "the court will add words, or omit words or substitute words". But "before interpreting a
statute in this way the Court must be abundantly sure of threematters: (1) the intended purpose of the
statute or provision in question, (2) that by inadvertence the draftsman and Parliament failed to
give effect to that purpose in the provision in question; and (3) the substance of the provision
Parliament would have made, although not necessarily the precise words Parliament would have
used, had the error in the Bill been noticed.
102. Of course in this case, this Court has not added, omitted or substituted anything. This
 317

Court has only given a purposive interpretation to the expression Subordinate Civil Court in
Section 7 of the Family Courts Act to include the Court of a Magistrate empowered to entertain
proceedings for maintenance under the 1986 Act for Muslim Women, which are in essence
and substance, civil proceedings.
103. To quote Venkatarama Aiyar, J. in Tirath Singh v. Bachittar SinghMANU/SC/0048/1955
: AIR 1955 SC 830 "where the language of a statute, in its ordinary meaning and grammatical
construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to
some inconvenience or absurdity, hardship or injustice, presumably not intended, a
construction may be put upon it which modifies the meaning of the words, and even the structure of
the sentence."
104. Tirath Singh v. Bachittar Singh (supra) has been followed in innumerable judgments of
this Court and the passage extracted above has been quoted with approval in Modern School v.
UnionofIndiareportedin(2004)9SCC 741.
105. I am of the view that the Family Court, for the reasons discussed above, had the jurisdiction to
convert the application of the Appellant Under Section 125 of the Code of Criminal Procedure
intoanapplication UnderSection3of the1986Actfor Muslim Women and to decide the same.
106. The appeal should, in my view, be allowed. The judgment and order under appeal are liable to
be set aside.

ORDER
R. Banumathi and Indira Banerjee,JJ.
In view of difference of opinions and the distinguishing judgments (Hon'ble R. Banumathi, J.
dismissed the appeal and Hon'ble Indira Banerjee, J. allowed the appeal), the matter be placed before
Hon'ble the Chief Justice of India for referring the matter to the LargerBench.

THE END