IMPORTANT POINT
Muslim divorced woman would be entitled to plead and prove such relevant facts in one proceedings, as to the inability of her relations maintaining her and directing her claim against State Wakf Board in the first instance.

Headnote:Muslim Women (Protection of Rights on Divorce) Act, 1986-Section 4(2)-Maintenance claim by divorced muslim woman for her self and for two minor female daughters against Wakf Board-Petition to quash proceedings on plea that unless sub-section (1) of Section 4 was got exhausted by proper order sub-section (2) of Section 4 could not be invoked-Provision is integrated whole-Claimant would instead be entitled to plead and prove such relevant facts in one proceedings as to the inability of her relations maintaining her and directing her claim against State Wakf Board in the first instance-High Court committed no error in declining to interfere at the initial stage of proceedings.
Held : 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-sections (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 a 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 to 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 afore mentioned, 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 provision, 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. (Para 9)

JUDGMENT

Punchhi, J.-Special leave granted.

2. 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.

3. 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 nor 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.

4. 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.

5. The Parliament enacted the Act to undo the effect of a Constitution Bench decision of this Court in Mohd. Ahmad Knah v. Shah Bano Begam1, because the said decision was strongly opposed to by a sizeable section of the Muslim Community. The Act, as the 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

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1996 Supreme(SC) 1028

IMPORTANT POINTMuslim divorced woman would be entitled to plead and prove such relevant facts in one proceedings, as to the inability of her relations maintaining her and directing her claim against State Wakf Board in the first instance.

Cases Referred (1)

IMPORTANT POINT
Muslim divorced woman would be entitled to plead and prove such relevant facts in one proceedings, as to the inability of her relations maintaining her and directing her claim against State Wakf Board in the first instance.