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SUPREME COURT OF INDIA
DIVISION BENCH
SHABANA BANO — Appellant
Vs.
IMRAN KHAN — Respondent
( Before : Deepak Verma, J; B. Sudershan Reddy, J )
Criminal Appeal No. 2309 of 2009 (Arising out of S.L.P. (Criminal) No. 717 of 2009)
Decided on : 04-12-2009
Criminal Procedure Code, 1973 (CrPC) - Section 125, Section 126, Section
127, Section 128, Section 488
Family Courts Act, 1984 - Section 20, Section 7, Section 7(1)
Muslim Women (Protection of Rights on Divorce) Act, 1986 - Section 4
Wakf Act, 1954 - Section 5, Section 9
Family Courts Act, 1984 - Sections 7 and 20 - Criminal Procedure Code, 1973
(CrPC) - Section 125 - Maintenance - A Family Court established under 1984
Act shall exclusively have jurisdiction to adjudicate upon applications filed
under Section 125 of Cr.P.C. - Provisions of 1984 Act shall have overriding
effect on all other enactments in force dealing with this issue.
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Muslim Women (Protection of Rights on Divorce) Act, 1986 - Section 4 -
Criminal Procedure Code, 1973 (CrPC) - Section 125 - Maintenance -
Appellant's petition under Section 125 of Cr.P.C. would be maintainable before
Family Court as long as appellant does not remarry - Amount of maintenance
to be awarded under Section 125 of Cr.P.C. cannot be restricted for iddat
period only - Impugned orders set aside - Appeal allowed.
Counsel for Appearing Parties
D. Mahesh Babu, for the Appellant; S. K. Dubey Rajesh, Dharam Singh and Yogesh Tiwari, for
the Respondent
Cases Referred
Danial Latifi and Another Vs. Union of India, (2001) 8 AD 1 : AIR 2001 SC 3958 :
(2001) CriLJ 4660 : (2001) 2 DMC 714 : (2001) 8 JT 218 : (2001) 6 SCALE 537 :
(2001) 7 SCC 740 : (2001) AIRSCW 3932 : (2001) 7 Supreme 297
Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, AIR 1985 SC 945 : (1985)
CriLJ 875 : (1985) 1 Crimes 975 : (1985) 1 SCALE 767 : (1985) 2 SCC 556 : (1985)
3 SCR 844
Vijay Kumar Prasad Vs. State of Bihar and Others, AIR 2004 SC 2123 : (2004) CriLJ
2047 : (2004) 1 DMC 716 : (2004) 4 JT 532 : (2004) 4 SCALE 287 : (2004) 5 SCC
196 : (2004) 1 SCR 935 : (2004) AIRSCW 2276 : (2004) 3 Supreme 134
Iqbal Bano Vs. State of U.P. and Another, AIR 2007 SC 2215 : (2007) 4 CTC 90 :
(2007) 8 JT 648 : (2007) 8 SCALE 426 : (2007) 6 SCC 785 : (2007) 7 SCR 949 :
(2007) AIRSCW 3880 : (2007) 5 Supreme 98
Final Result : Allowed
JUDGMENT
Deepak Verma, J.—Leave granted.
2. Appellant Shabana Bano was married to the respondent Imran Khan according to
Muslim rites at Gwalior on 26.11.2001. According to the appellant, at the time of
marriage, necessary household goods to be used by the couple were given. However,
despite this, the respondent-husband and his family members treated the appellant with
cruelty and continued to demand more dowry.
3. After some time, the appellant became pregnant and was taken to her parents' house by
the respondent. The respondent threatened the appellant that in case his demand of dowry
is not met by the appellant's parents, then she would not be taken back to her matrimonial
home even after delivery.
4. Appellant delivered a child in her parental home. Since even after delivery, respondent
did not think it proper to discharge his responsibility by taking her back, she was
constrained to file a petition u/s 125 of the Code of Criminal Procedure (for short, 'Cr.P.C.')
against the respondent in the Court of Family Judge, Gwalior. It was averred by the
appellant that respondent has been earning a sum of Rs. 12,000/- per month by doing some
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private work and she had no money to maintain herself and her new-born child. Thus, she
claimed a sum of Rs. 3000/- per month from the respondent towards maintenance.
5. On notice being issued to the respondent, he denied all the contents of the petition filed
by the appellant u/s 125 of the Cr.P.C. except admitting his marriage with the appellant.
6. Preliminary objections were raised by the respondent that appellant has already been
divorced on 20.8.2004 in accordance with Muslim Law. Thus, under the provisions of
Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as
`Muslim Act'), appellant is not entitled to any maintenance after the divorce and after the
expiry of the iddat period. It was also contended by him that appellant herself is earning
Rs. 6,000/- per month by giving private tuitions and is not dependent on the income of the
respondent, thus, she is not entitled to any maintenance. It was also contended by
respondent that appellant had gone to her parental home on her own free-will and accord,
after taking all the jewellery and a sum of Rs. 1000/- and despite notice being sent, she has
not returned to her matrimonial home. Thus, for all these reasons, she is not entitled to
receive any amount of maintenance.
7. The Family Court was pleased to frame issues and parties went to trial. After considering
the matter from all angles, the learned Judge of the Family Court partly allowed the
appellant's application as under:
(1) respondent shall pay Rs. 2000/- per month as maintenance allowance to the petitioner
from 26.4.2004, date of institution of petition to the date of divorce, i.e. 20.8.2004 and
thereafter from 20.8.2004 to the period of iddat.
(2) respondent will bear cost of the suit of himself as well as of petitioner.
8. Thus, the claim of the appellant was allowed to the extent of Rs. 2,000/- per month
towards maintenance from the date of institution of the petition till the date of divorce, i.e.,
20.8.2004 and further from the said date till the expiry of iddat period but amount of
maintenance thereafter was denied.
9. The appellant was, therefore, constrained to carry the matter further by filing Criminal
Revision No. 285 of 2008 before the Gwalior Bench of the High Court of Madhya Pradesh.
The said Criminal Revision came to be disposed of by learned Single Judge on 26.9.2008
and the order of the Family Court has substantially been upheld and consequently, the
appellant's Revision has been dismissed. It is this order and the order passed by the Family
Court which are the subject-matter of challenge in this appeal by grant of special leave.
10. At the outset, learned Counsel for the appellant contended that learned Single Judge has
gravely erred in dismissing the appellant's Revision on misconception of law on the ground
that after divorce of a Muslim wife, a petition u/s 125 of the Cr.P.C. would not be
maintainable. It was also contended that learned Single Judge proceeded on wrong
assumption in dismissing appellant's Revision claiming maintenance u/s 125 of the Cr.P.C.
It was also argued that both the courts below completely lost sight of the provisions of
Section 7(1)(f) of the Family Courts Act, 1984 (hereinafter referred to as the 'Family Act').
11. On the other hand, Shri S.K. Dubey, learned Senior Counsel for the respondent
contended that no illegality or perversity can be found in the order passed by the learned
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Single Judge and the same calls for no interference. It was also contended that the appeal
being devoid of any merit and substance, deserves to be dismissed.
12. In the light of the aforesaid contentions, we have heard the learned Counsel for the
parties and perused the records.
13. The basic and foremost question that arises for consideration is whether a Muslim
divorced wife would be entitled to receive the amount of maintenance from her divorced
husband u/s 125 of the Cr.P.C. and, if yes, then through which forum.
14. Section 4 of Muslim Act reads as under:
4. Order for payment of maintenance:
(1) Notwithstanding anything contained in the foregoing provisions of this Act or in any
other law for the time being in force, where a Magistrate is satisfied that a divorced woman
has not re-married and is not able to maintain herself after the iddat period, he may make
an order directing such of her relatives as would be entitled to inherit her property on her
death according to Muslim law to pay such reasonable and fair maintenance to her as he
may determine fit and proper, having regard to the needs of the divorced woman, the
standard of life enjoyed by her during her marriage and the means of such relatives and
such maintenance shall be payable by such relatives in the proportions in which they would
inherit her property and at such periods as he may specify in his order:
Provided that where such divorced woman has children, the Magistrate shall order only
such children to pay maintenance to her, and in the event of any such children being unable
to pay such maintenance, the Magistrate shall order the parents of such divorced woman to
pay maintenance to her:
Provided further that if any of the parents is unable to pay his or her share of the
maintenance ordered by the Magistrate on the ground of his or her not having the means to
pay the same, the Magistrate may, on proof of such inability being furnished to him, order
that the share of such relatives in the maintenance ordered by him be paid by such of the
other relatives as may appear to the Magistrate to have the means of paying the same in
such proportions as the Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain herself and she has no relatives as
mentioned in Sub-section (1) or such relatives or any one of them have not enough means
to pay the maintenance ordered by the Magistrate or the other relatives have not the means
to pay the shares of those relatives whose shares have been ordered by the Magistrate to be
paid by such other relatives under the second proviso to Sub-section (1), the Magistrate
may, by order, direct the State Wakf Board established u/s 9 of the Wakf Act, 1954 (29 of
1954), or under any other law for the time being in force in a State, functioning in the area
in which the woman resides, to pay such maintenance as determined by him under Sub-
section (1) or, as the case may be, to pay the shares of such of the relatives who are unable
to pay, at such periods as he may specify in his order.
15. Section 5 thereof deals with the option to be governed by the provisions of Section 125
to 128 of the Cr.P.C. It appears that parties had not given any joint or separate application
for being considered by the Court. Section 7 thereof deals with transitional provisions.
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16. Family Act, was enacted w.e.f. 14th September, 1984 with a view to promote
conciliation in, and secure speedy settlement of, disputes relating to marriage and family
affairs and for matters connected therewith.
17. The purpose of enactment was essentially to set up family courts for the settlement of
family disputes, emphasizing on conciliation and achieving socially desirable results and
adherence to rigid rules of procedure and evidence should be eliminated. In other words,
the purpose was for early settlement of family disputes.
18. The Act, inter alia, seeks to exclusively provide within jurisdiction of the family courts
the matters relating to maintenance, including proceedings under Chapter IX of the Cr.P.C.
19. Section 7 appearing in Chapter III of the Family Act deals with Jurisdiction. Relevant
provisions thereof 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:
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) a suit or proceeding for maintenance;
(g) ...
20. Section 20 of the Family Act appearing in Chapter VI deals with overriding effect of
the provisions of the Act. The said section reads as under:
20. Act to have overriding effect - The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any other law for the time
being in force or in any instrument having effect by virtue of any law other than this Act.
21. Bare perusal of Section 20 of the Family Act makes it crystal clear that the provisions
of this Act shall have overriding effect on all other enactments in force dealing with this
issue.
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22. Thus, from the abovementioned provisions it is quite discernible that a Family Court
established under the Family Act shall exclusively have jurisdiction to adjudicate upon the
applications filed u/s 125 of Cr.P.C.
23. In the light of the aforesaid contentions and in view of the pronouncement of
judgments detailing the said issue, learned Counsel for the appellant submits that matter
stands finally settled but learned Single Judge wholly misconstrued the various provisions
of the different Acts as mentioned hereinabove, thus, committed a grave error in rejecting
the appellant's prayer.
24. In our opinion, the point stands settled by judgment of this Court reported in Danial
Latifi and Another Vs. Union of India, pronounced by a Constitution Bench of this Court.
Paras 30, 31 and 32 thereof fully establish the said right of the appellant. The said
paragraphs are reproduced herein under:
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 Magistrate u/s 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 Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, . In
this case to find out the personal law of Muslims with regard to divorced women's rights,
the starting point should be Shah Bano's case and not the original texts or any other
material - all the more so when varying versions as to the authenticity of the source are
shown to exist. Hence, we have refrained from referring to them in detail. That declaration
was made after considering the Holy Quran, and other commentaries or other texts. When
a Constitution Bench of this Court analysed Suras 241-242 of Chapter II of the Holy Quran
and other relevant textual material, we do not think, it is open for us to re-examine that
position and delve into a research to reach another conclusion. We respectfully abide by
what has been stated therein. All that needs to be considered is whether in the Act specific
deviation has been made from the personal laws as declared by this Court in Shah Bano's
case without mutilating its underlying ratio. We have carefully analysed the same and come
to the conclusion that the Act actually and in reality codifies what was stated in Shah
Bano's case. The learned Solicitor General contended that what has been stated in the
Objects and Reasons in Bill leading to the Act is a fact and that we should presume to be
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correct. We have analysed the facts and the law in Shah Bano's case and proceeded to find
out the impact of the same on the Act. If the language of the Act is as we have stated, the
mere fact that the Legislature took note of certain facts in enacting the law will not be of
much materiality.
25. Judgment of this Court reported in Iqbal Bano Vs. State of U.P. and Another, whereby
the provisions contained in Section 125 of the Cr.P.C. have been aptly considered and the
relevant portion of the order passed in Iqbal Bano's case reads as under:
10. Proceedings u/s 125 Cr.P.C. are civil in nature. Even if the Court noticed that there was
a divorced woman in the case in question, it was open to it to treat it as a petition under the
Act considering the beneficial nature of the legislation. Proceedings u/s 125 Cr.P.C. and
claims made under the Act are tried by the same court. In Vijay Kumar Prasad Vs. State of
Bihar and Others, it was held that proceedings u/s 125 Cr.P.C. are civil in nature. It was
noted as follows: (SCC p.200, Para 14).
14. The basic distinction between Section 488 of the old Code and Section 126 of the Code
is that Section 126 has essentially enlarged the venue of proceedings for maintenance so as
to move the place where the wife may be residing on the date of application. The change
was thought necessary because of certain observations by the Law Commission, taking
note of the fact that often deserted wives are compelled to live with their relatives far away
from the place where the husband and wife last resided together. As noted by this Court in
several cases, proceedings u/s 125 of the Code are of civil nature. Unlike Clauses (b) and
(c) of Section 126(1) an application by the father or the mother claiming maintenance has
to be filed where the person from whom maintenance is claimed lives.
26. In the light of the findings already recorded in earlier paras, it is not necessary for us to
go into the merits. The point stands well settled which we would like to reiterate.
27. The appellant's petition u/s 125 of the Cr.P.C. would be maintainable before the Family
Court as long as appellant does not remarry. The amount of maintenance to be awarded u/s
125 of the Cr.P.C. cannot be restricted for the iddat period only.
28. Learned Single Judge appeared to be little confused with regard to different provisions
of Muslim Act, Family Act and Cr.P.C. and thus was wholly unjustified in rejecting the
appellant's Revision.
29. Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi
(supra) and Iqbal Bano (supra) would make it crystal clear that even a divorced Muslim
woman would be entitled to claim maintenance from her divorced husband, as long as she
does not remarry. This being a beneficial piece of legislation, the benefit thereof must
accrue to the divorced Muslim women.
30. In the light of the aforesaid discussion, the impugned orders are hereby set aside and
quashed. It is held that even if a Muslim woman has been divorced, she would be entitled
to claim maintenance from her husband u/s 125 of the Cr.P.C. after the expiry of period of
iddat also, as long as she does not remarry.
31. As a necessary consequence thereof, the matter is remanded to the Family Court at
Gwalior for its disposal on merits at an early date, in accordance with law. The respondent
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shall bear the cost of litigation of the appellant. Counsel's fees Rs. 5,000/-.
32. Consequently, the appeal stands allowed to the extent indicated above.
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