s^; p^ -..-^:. PETITIONER HIGH COURTOF CHHATTISGARH AT BILASPUR [SB:Hon'ble IWr.T.P.Sharma.J.I Criminal Misc.Petition No. 429/2008 Sheikh Israfil Mohammad son of Sheikh Peer Mohammad aged about 36 years, resident of Adarsh Nagar, Ward No.2 Kawardha, Tahsil Kawardha, District Kabirdham, CG. VERSUS RESPONDENT Anwari Begum D/o Safil Khan aged about 23 years, resident of village S. Lohara, Tahsil Sahaspur Lohara, District Kabirdham (Kawardha) CG. Mrs. Fauzia Mirza counsel for the petitioner. Mr. Ajit Singh counsel for the respondent. PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE (ORAUORDER (12.02.2009) This petition is directed against the order dated 12.8.2008passed by the Sessions Judge Kabirdham in Criminal Revision No. 49/2008 affirming the order dated 24.4.2008 passed by the Judicial Magistrate First Class, Kawardha in Criminal Case No. 130/2007 whereby learned Magistrate has awarded maintenance in favour of the respondent under Section 3(2) of the Muslim Women (Protection of Rights on Divorce) Act 1986 (for brevity "the Act"). 2. The order is challenged on the ground thatthe Courts below have committed an illegality in awarding the maintenance in favour of a divorced Muslim woman in violation ofthe provisions ofSection 3(2) oftheAct. 3. The facts of the case in brief are that the respondent was married to the petitioner. Both.the petitionerandthe respondent are Muslims. Previously the respondent filed a petition under Section 125 of the Code of Criminal Procedure —2-— (for brevity "the Code") for maintenance which was dismissed by the Competent Court on the ground that the divorced Muslim woman is not entitled for maintenance in accordance with Section 125 of the Code. Then she filed a petitionfor maintenance under the provisions of Section 3(2) of the Act stating therein that she is entitled for Mahr as well as monthly maintenance of Rs. 3000 after divorce which was not paid to her after the period of Iddat. The said petition was opposed by the present petitioner on the ground that he is liable to pay maintenance only till Iddat which he has already paid and he is not liable to pay future maintenance according to the provisions of Section 3(2) of the Act. After affording opportunity of hearing to the parties, the Magistrate awarded the maintenance of Rs. 1200 per month from the date on which divorce was effected apart from the amount of Mahr. Against the said order the revision was preferred which wasdismissed and the order passed by the Magistrate was affirmed. 4. Heard counsel for the parties and perused the material available on record including the orders passed by both the Courts below. 5. Counsel for the petitioner submits that in this case the respondent is a divorced Muslim woman. The petitioner who is the husband ofthe respondent is liable to the maintenance till the period of Iddat in accordance with the provisions of Section 3(2) (a) of the Act. Counsel for the petitioner further submits that if the respondent is not able to maintain herself after the period of Iddat, the other relatives who are entitled to inherit her property on her death or the Wakf Board are liable to maintain her. In accordance with Section 4 of the Act the present petitioner is not liable for the maintenance of the respondent after the period of Iddat but in this case the courts below have awarded the future maintenance after Iddat and thereby committed illegality. It is submitted that Section 3 and 4 of the Act begin with the word "notwithstanding" and thus excludes any other law for the time being in force. In other words they being the npn obstante clause exclude any other provision for the time being in force. Reliance is placed on the decision of the Supreme Court in the matter of Mannalal Khetan etc. vs. Kedar Nath Khetan and others etc. in which it has been held negative, prohibitory and exclusive words are indicatiye of the legislative intent when the statute is mandatory. Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statutory provision imperative. 6. On the other hand counsel for the respondent supported the impugned order and submitted that a divorced Muslim woman is entitled for future maintenance and the husband is under obligation to make fair provisions for the same within the period of Iddat but he has not made any provision for the future maintenance and therefore he is liable for the future maintenance of the respondent during her lifetime. The courts below have not committed any illegality or irregularity in awarding the maintenance in favour of the respondent. Reliance is placed on the decision of the Supreme Court in the matter of Iqbal Bano v. State of U.P. and another^ in which it has been held that liability of a Muslim husband to his divorced wife under Section 3(1) (a) of the Act is not confined to the period of Iddat. He is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance. 7. In this case both the petitioner and the respondent being Muslim are governed by the Muslim Law. For the maintenance of divorced Muslim woman special Act has been enacted by the Parliament. Sections 3 and 4 of the Act read as under: 3. Mahr or other properties of IVIuslim woman to be given to her at the time of divorce. - (1) Notwithstanding anything contained in any otherlaw for the time being in force, adivorced woman shall be entitled to- (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains the children bom to her before or after her divorce, a reasonable and fair provision and ' AIR 1977 SC 536 2 (2007) 6 SCC 785 -<-<- 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 ofmahr 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 marhage or after the marn'age by her relatives or friends or the husband or any relatives of the husband or his friends. (2) Where a reasonable and fair pmvision 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, ifhe is satisfied that- (a) herhusband having sufTicient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance forherand thechildren; 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. make an order, within one monfh 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 fit and proper having regard to the needs ofthe 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 cfoM/er or ?/)e delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman: Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for the reasons to be recorded by him, dispose of the application after the said period. (4) Ifany personagainst whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, 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 of Criminal Procedure, 1973(2 of 1974) and may sentence such person, for the whole or part of any amount remaining unpaid after fhe execution of fhe 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 said Code." Section 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 the Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself affer 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 marriage and the means of such relatives and such maintenance shall be payable by such relatives in the properties 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 ofany 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 fumished 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 relative 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 orthe other relatives have not the means to pay the shares of those relatives whose shares have been ordered bythe Magistrate to be paid by such other relatives under the second proviso to Sub-section (1), the Magistrate may, byorder 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." According to the provisions of Section 5 of the Act on the declaration by affidavit in writing the parties may opt for the provisions of Chapter IX of the Code of Criminal Procedure. In this case parties have not made any declaration or not opted in accordance with the provisions of Section 5 of the Act. 8. In the light of the decision of the Apex Court in the matter of Mohd. Ahmad Khan v. Shah Bano Begam the Parliament has enacted the Act. Statement of objects and reasons for enacting the law was to provide proper maintenance to the Muslim divorced women within the period of iddat and also forfuture maintenance. Section 5 of the Act is a special provision and provides for the application under Chapter IX of the Code to the parties to the proceedings by affidavit or any other declaration in writing. But in this case the parties have not opted in accordance with Section 5 oftheAct. 9. The provisions relating to the maintenance divorced Muslim woman under Section 3(1) (a) of the Act have been elaborately interpreted by the Constitution Bench ofthe Apex Court in the case ofDanial Latifi and another v. Union of India and law has been declared that liability of Muslim husband to a divorced wife arising out of Section 3 (1) (a) of the Act to pay maintenance is not confined to iddatpenod. Relevant portion reads thus: "35. In Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai , Ali v. Sufaira6 , K. Kunhammed Haji v. K. amina 7, K. Zunaideen v. Ameena Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh while interpreting the provision of Sections 3(1)(a)and 4 ofthe 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 uhder 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 lotof 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 provisipn for her future. A Full Bench of Punjab and Haryana High Court in Kaka V. Hssan Bano 1°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 3 AIR 1985 SC 945 4 (2001) 7 SCC 740 5AIR1988Gujl41 6 (1988) 3 Crimes 147 (Ker) 71995Cri.LJ3371Ker 8(1998)2DMC468(Mad) 9 2000 Cri.L.J. 3560 (Bom) (FB) 10 (1998) 2 DMC 85 (P&H) (FB) 7 for he future in addition to what she had already received at time of 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 , Abdul Rashid v. Sultana Begum 12 Abdul Haq v. Yasmin Talat 13 and Mohd. Marahim v. Raiza Begum . Thus preponderance ofjudicial opinion is in favour of what we have concluded in the iriterpretation of Section 3 of the Act. The decisions of the High Courts referred to herein that are contraryto our decision stand overruled." "36. While upholding the validity o 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 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 Muslimhusband 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 top maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman induding her children and parents. If any of the relatives beingunable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. (3) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India." 10. Thus Section 3 of the Act provides for maintenance to a divorced Muslimwomen within the iddat period and Section 4 provides for maintenance to such women after the iddat period. Sections 3 and 4 are the non obstante clause. Applying the dictum in the matter of Danial Latifi andano?/ier(supra), it has been reiterated by the Apex Court in the matter of Iqbl Bano v. State of U.P. and another that a divorced Muslim woman is entitled forfuture maintenance alsofrom herformer husband. " 1990 Cri.L.J. 1364 121992 Cri.L.J. 76 Cal. 13 1998 Cri.L.J. 4333 (MP) " (1993) 1 DMC 60 15 (2007) 6 SCC 785 r"r ..:<r&A 'S.. 'f ^' '%, 1 \'"i:..JJ %. ! a ;'-$Si23fe^" -'2- 11. Right of maintenance of divorced Muslim women after the period of iddat from her husband and liability ofthe husband has been elaborately interpreted by the Apex Court in the matter of Danial Latifiand another (supra) and in the matter of Iqbal Bao (supra) Thus, in the light of aforesaid declaration of law by the Apex Court a divorced Muslim womah is entitled for future maintenahce from her former husband and the formerhusband is under obligation to maintain her even after the period of iddat. 12. Court below has awarded future maintenanceto the respondent from her former husband on the date of divorce. Provision of Section 3 is a special provision for maintenance ofthe divorced Muslimwomen according to which the divorGed Muslim woman is entitled for maintenance from the date of divoree. Court. Thus Court belowhas not committed any illegality or infirmity in awarding future maintenance to the respondent frdm the date of divorce. Accordingly, the petifioh being without substance is liable t6 be dismissed and it is hereby dismissed. Sd/- T.P.Sharma Judge n^