The
Secretary, Tamil Nadu Wakf Board & Anr Vs. Syed Fatima Nachi [1996] INSC
770 (9 July 1996)
M.M.
Punchhi, Sujata V. Manohar Punchhi, J.
ACT:
HEAD NOTE:
Special
leave granted.
The
Secretary of the Tamil Nadu Wakf Board, Madras, and the Superintendent of Wakfs. Tirunelveli, the Appellants herein,
are aggrieved against an order of the High Court of Madras, dated 16.3.1994 in Crl.
O.P. No. 3557/93 declining to interfere and quash a proceeding in M.C. No.11/92
pending on the file of the Court of the Judicial Magistrate, Tiruchendur, in
which the respondent - Syed Fatima Nachi - is claiming maintenance as the
applicant.
The
respondent is a Muslim divorced wife. She filed a petition against the
appellants under Section 4(2) of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 (for short 'the Act') seeking maintenance at the rate of
Rs.750/- per mensem. The petition was founded on the facts that she was married
to one Syed Ahmed Moulana on 10.6.1980 in accordance with the tenets of Muslim
Law and out of the wedlock, she had procreated female twins on 6.4.1981. Her
husband divorced her on 12.6.1986 and since then she has not remarried.
Claiming that the respondent had no income or means to maintain herself, as
well as her minor female children, none of them owning any property, she was,
thus, unable to maintain herself and required intervention of the Court in
providing her a suitable sum for maintenance. She claimed that she had earlier
been leading a good life as a married woman but after divorce, was in dire
straits and in suffering. She claimed that under the Mohammedan Law, a Muslim
woman, in such circumstances, can get maintenance from her prospective heirs.
According to her, a host of relatives as given in the Act as well as under the
Mohammedan Law are responsible to provide maintenance to her and if those are
unable to do so, the claim of maintenance must be met by the Wakf Board. it was
also maintained that neither her prospective heirs not her parents were in a
position to provide maintenance to her and thus there lay a bounden duty on the
Wakf Board to that effect; hence claim of Rs. 750/- per mensem.
Instead
of facing the petition on merit to its logical end, the appellants, who were
the only respondents in that petition, moved the High Court of Madras praying
for quashing of proceedings in exercise of its diverse powers under the Code of
Criminal Procedure, but the High Court declined to do so. They have, in turn,
approached this Court for the same purpose, basing their claim on the same
grounds as before the High Court.
The
Parliament enacted the act to undo the effect of a Constitution Bench decision
of this Court in Mohd. Ahmad Khan v. Shah bano Begam (1985 2 SCC 556) because
the said decision was strongly opposed to by a sizeable section of the Muslim
Community. The Act as Preamble suggests, came to protect the rights of Muslim
women who have been divorced by, or obtained divorce from, their husbands and
to provide for matters connected therewith or incidental thereto. The brief
text of the Act embodies the all important Section 4 whereunder orders can be
made for payment of maintenance.
The
said provision is reproduced hereunder:
"4.
Order for payment of maintenance.-
(1)
Notwithstanding anything contained in the foregoing provisions of this Act or
in any other law for the time being in force, where a Magistrate is satisfied
that a divorced woman has not re-married and is not able to maintain herself
after the iddat period, he may make an order directing such of her relatives as
would be entitled to inherit her property on her death according to Muslim law
to pay such reasonable and fair maintenance to her as he may determine fit and
proper, having regard to the needs of the divorced woman, the standard of life
enjoyed by her during her marriage and the means of such relatives and such
maintenance shall be payable by such relatives in the proportions in which they
would inherit her property and at such periods as he may specify in his order :
Provided
that where such divorced woman has children, the Magistrate shall order only
such children to pay maintenance to her, and in the event of any such children
being unable to pay such maintenance, the Magistrate shall order the parents of
such divorced woman to pay maintenance to her;
Provided
further that if any of the parents is unable to pay his or her share of the
maintenance ordered by the Magistrate on the ground of his or her not having
the means to pay the same, the Magistrate may, on proof of such inability being
furnished to him, order that the share of such relatives in the maintenance
ordered by him be paid by such of the other relatives as may appear to the
Magistrate to have the means of paying the same in such proportions as the
Magistrate may think fit to order.
(2)
Where a divorced woman is unable to maintain herself and she has no relatives
as mentioned in sub-section (1) or such relatives or any one of them have not
enough means to pay the maintenance ordered by the Magistrate or the other
relatives have not the means to pay the shares of those relatives whose shares
have been ordered by the Magistrate to be paid by such other relatives under
the proviso to sub-section (1) the Magistrate may, by order, direct the State Wakf
Board established under Section 9 of the Wakf Act, 1954 (29 of 1954), or under
any other law for the time being in force in a State, functioning in the area
in which the woman resides, to pay such maintenance as determined by him under
sub-section (1) or, as the case may be, to pay the shares of such of the
relatives who are unable to pay, at such periods as he may specify in his
order." (emphasis supplied) A bare reading of the provision shows that a
divorced woman is entitled to claim a reasonable and fair maintenance from such
of her relatives as would be entitled to inherit her property on her death,
according to Muslim Law, provided she has not re-married and is not able to
maintain herself.
Such
maintenance, however, shall be pauable by such relatives in proportion to the
share which they would inherit in her property and at such periods as the
Magistrate may specify in his order. If the divorced woman has children, the
first proviso to sub-section (1) of Section 4 mandates that the liability to
maintain her firstly lies on them. In the event of her children being unable to
maintain her, the liability shifts to her parents under the same proviso. The
liability of the relatives other than the children and the parents, follows,
sequentially, subject to the conditions as embodied in the proviso. The
liability of the relatives does not depend on the contingency that the relatives
does not depend on the contingency that the divorced woman has property which
they would inherit. It looks incongruous though that a divorced woman having
property would yet be unable to maintain herself. Seemingly, the phraseology
has been employed to ascertain firstly such of those relatives who could have
inherited her property, fictionally on the basis that she could be having
property, and secondly as if she had died on the date when the need for
identification arose. The speculative plea of any relative that her or she may
not be available to be an heir on the date when the divorced woman would
actually die, would neither be here nor there.
Climbing
down, if the divorced woman has no relatives as mentioned in sub-section (1) or
relatives who have not enough means to pay her maintenance, the State Wakf
Board functioning in the area, in which the divorced woman in resident, has
been foisted with the liability to pay suitable maintenance to her, on the
Magistrate's order and/or direction.
We
have taken care to underline and emphasise certain words in the text of Section
4 (supra). As is evident, there are more than one orders which are contemplated
or conceived of, to be passed by the Magistrate in the morass of fluctuations,
depending upon the existence of children, parents and the heirs and their
capability or inability of making payment of maintenance and as to its
proportions.
The
State Wakf Board comes at the bottom of the list to shoulder the onus of
payment of maintenance. The scheme of the provision is, in a manner, unique in
character, in grading down the responsibility of payment of maintenance from
one to the other and finally coming to rest on the State Wakf Board, which is
the last in line to bear the burden.
The
appellants would have us hold that sub-sections (1) and (2) of Section 4 are
mutually exclusive and the separate language employed therein, to cover
different situation, breeds further exclusivity, as it is contemplated, that orders
after orders might have to be passed by the Magistrate in pursuit to grant the
divorced wife maintenance. It has been vehemently argued on behalf of the
appellants that unless sub-section (1) of Section 4 gets exhausted by proper
orders, sub-section (2) of Section 4 (in which the liability of the State Wakf
Board is to be found) cannot be invoked. In other words, it is contended that
in the present set of proceedings, the appellants cannot be made to face or
litigate about before the Magistrate trying the matter. We regretfully do not
agree to such line of thinking. The appellants would have us hold that the
provision concedes multiplicity of proceedings, broadly in the following manner
:
(1) the
proceedings shall in the first instance be initiated against the children of
the divorced woman;
(2) if
the children are unable to pay maintenance then the second proceedings shall be
initiated against the parents of the divorced woman;
(3) if
the parents or any one of them is unable to pay the respective share of
maintenance then fresh proceedings be started against the relatives;
(4) in
case the relatives are unable to meet the claim of maintenance, fresh
proceedings be initiated against "other relatives" ; and
(5) finally,
when no relatives or any one of them unable to pay maintenance then another set
of proceedings be initiated against the State Wakf Board; all backed by the
orders of the Magistrate. And since the State Wakf Board comes last, it is
maintained that its turn instantly has not yet arrived because no proceedings
have been initiated against the relatives.
Going
by the arguments and the reasoning adopted by the appellants, it would, in our
way of thinking, have a devastating effect on the purpose for which the
provision was enacted. The Drafter's pattern in sub-dividing the provision into
sub-section (1) and (2) evidently was not to cause any split in the legislative
theme because the provision, as it appears to us, is an integrated whole. One
step is dependent on another. It is futile for to divorced woman seeking succour
to run after relatives, be it her children, parents, relatives or other
relatives, who are not possessed of means to offer her maintenance and in
fighting litigations in succession against them, dragging them to courts of law
in order to obtain negative orders justificatory of the last resort of moving
against the State Wakf Board. In our considered view, she would instead be
entitled to plead and prove such relevant facts in one proceeding, as to the
inability of her relations aforementioned, maintaining her and directing her
claim against the State Wakf Board in the first instance. It is, however, open
for the State Wakf Board to controvert that the relations mentioned in the
provisions, or some, of them, have the means to pay maintenance to her. In that
event the Magistrate would perfectly be justified in adding those relatives as
parties to the litigation in order to determine as towards whom shall he direct
his orders for payment of maintenance. In one and the same proceeding, one or
more orders conceivably can be passed in favour of the divorced woman subject
of course to her not re-marrying and remaining unable to maintain herself. We
hold accordingly.
We are
thus satisfied that the High Court committed no wrong in declining to interfere
at the initial stage of the proceedings at the behest of the appellants. They
are at liberty to take before the Magistrate hearing the matter, such defence
as are open to them on the merit of the matter and within the framework of the
legislative scheme embodied in Section 4 of the Act.
Before
parting with the judgment, it need be taken into account that notice to the
respondent was issued, subject to the appellant depositing a sum of Rs.10,000/-
in this Court, irrespective of the result of this case, for the benefit of the
respondent, to obtain it and defray the litigation expenses. The respondent, in
turn, did not engage a counsel but despatched a letter to this Court, praying
that some counsel be arranged by the Court to represent her and that she be
remitted the said sum of Rs.10,000/-. In such a situation, we had appointed Mr.
Uday Umesh Lalit, learned counsel as an amicus curiae to assist us in the
matter on her behalf. We had the advantage of his able assistance in
appreciating this matter. In our view, he deserves a remuneration of Rs.
3,000/-. The Registry is directed accordingly, to make payment to Mr. Lalit out
of the sum deposited. The balance sum of Rs.7,000/- be remitted to the
respondent as succour, to tide over her financial difficulties, which is
ordered not to be taken into account or reckoned in determining any claim for
maintenance.
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