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1990 Supreme(AP) 96
Andhra Pradesh High Court
Judges : RAMANUJULU NAIDU, SARDAR ALI KHAN, V.BHASKARA RAO
Azmath Ali Khan - Appellant
Versus
Qamar Bano - Respondent
Decided On : 03-05-90
A divorced Muslim woman cannot claim maintenance under section 125 of the Code from her former husband after passing of the Act of 1986.
Headnote:
Whether a divorced Muslim woman can claim maintenance under section 125 of the Code from her former husband even after passing of the Act of 1986? Whether the maintenance contemplated under Section 3 (1) (a) of the act of 1986 is restricted only for the period of Iddat or whether a fair and reasonable provision has to be made for future also within the period of Iddat? How far Sections 125 to 128 of the Code can be held to be applicable after coming into force of the Act of 1986 and what should be the mode of disposal of the cases pending before the Courts under these Sections?
Fact of the Case:
A Division Bench of this Court while dealing with the question of the right of a divorced woman to claim maintenance under the Muslim Women (Protection of rights on Divorce) Act, 1986 (hereinafter referred to as the Act) has referred the matter for the Full Bench on certain questions arising about the right of such muslim Divorced Women to claim maintenance under Section 125 of the Code of criminal Procedure, 1973 (herein after referred to as the Cede) from her former husband even after the enforcement of the aforesaid Act.
Finding of the Court:
A divorced Muslim woman cannot claim maintenance under section 125 of the Code from her former husband after passing of the Act of 1986. The maintenance contemplated under Section 3 (1) (a) of the act of 1986 is restricted only for the period of Iddat and the liability of the husband to provide any provision or maintenance after the period of Iddat does not arise. Sections 125 to 128 of the Code are not applicable after coming into force of the Act of 1986, save in so far as the parties exercise their option under Section 5 of the Act, to be governed by the provisions of Sections 125 to 128 of the Code.
Issues: 1. Whether a divorced Muslim woman can claim maintenance under section 125 of the Code from her former husband even after passing of the Act of 1986? 2. Whether the maintenance contemplated under Section 3 (1) (a) of the act of 1986 is restricted only for the period of Iddat or whether a fair and reasonable provision has to be made for future also within the period of Iddat? 3. How far Sections 125 to 128 of the Code can be held to be applicable after coming into force of the Act of 1986 and what should be the mode of disposal of the cases pending before the Courts under these Sections?
Ratio Decidendi: The Act of 1986 has been promulgated in the wake of the furore created after the decision in Shah Bano case in which the principle of Mohammaden LAW with regard to maintenance was given a new interpretation. In fact, the main object of the Act of 1986 is So bring the law in consonance with the principles of mohammaden Law. Section 3 affirms the principle which has been laid down by various authorities about the right of a divorced Muslim wife to claim maintenance from her former husband only for the period of Iddat. Therefore, it cannot be said that Section 3 is something different from what the principle of Mahomaden law provided in regard to payment of maintenance to a divorced Muslim woman.
Final Decision: The questions under reference are answered accordingly.
( 1 ) A Division Bench of this Court while dealing with the question of the right of a divorced woman to claim maintenance under the Muslim Women (Protection of rights on Divorce) Act, 1986 (hereinafter referred to as the Act ) has referred the matter for the Full Bench on certain questions arising about the right of such muslim Divorced Women to claim maintenance under Section 125 of the Code of criminal Procedure, 1973 (herein after referred to as the Cede ) from her former husband even after the enforcement of the aforesaid Act. The Division Bench felt that the matter involves substantial questions of law of general importance having a farreaching effect and therefore it should be placed before a Full Bench for an authoritative pronouncement on the matter. The questions to be considered by the Full bench are as follows: (1) Whether a divorced Muslim woman can claim maintenance under section 125 of the Code from her former husband even after passing of the Act of 1986? (2) Whether the maintenance contemplated under Section 3 (1) (a) of the act of 1986 is restricted only for the period of iddat or whether a fair and reasonable provision has to be made for future also within the period of Iddat? (3) How far Sections 125 to 128 of the Code can be held to be applicable after coming into force of the Act of 1986 and what should be the mode of disposal of the cases pending before the Courts under these Sections?
( 2 ) THE above three questions will therefore have to be considered by this full Bench in the light of the provisions of the Act of 1986, the principles of Mahommaden Law and the provisions of Sections 125 to 128 of the Code.
( 3 ) THE main question with regard to the right of a divorced Muslim woman for maintenance under Section 125 of the Code from her former husband after passing of the Act of 1986 deserves to be taken up first for consideration hinges around section 3 of the Act. Before going to the intricacies of Section 3 of the Act of 1986 it would be necessary to consider the aims and objects for which the Act of 1986 has been passed.
( 4 ) THE decision of the Supreme court in Mohd. Ahmed Khan Vs. Shah bano Begum (1) AIR 1985 SC 945 (for short, Shah Bano case) created a furore among the Muslim community of India who agitated strongly against the decision on the ground that it sought to abrogate the principles of Muslim law with regard to maintenance payable (o a divorced muslim wife. In the wake of the protests made against the said decision the Parliament passed the Act of 1986. It would be be in the fitness of things to make a reference to the objects and reasons of the said act which clearly brings out the circumstances under which the Act was passed and indicates the objects which it seeks to achieve. A perusal of the statement of objects and reasons shows that in the very first sentence it is stated that the Supreme court in Shah Bano case 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. The Court held that it would be incorrect and unjust to extend the above principle of Muslim law to cases in which 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. The above statement is almost taken verbatim from the statement of objects and reasons and it clearly highlights two points which must be kept in mind for the purpose of a decision in the instant case. The first principle which has been recognised in the statement of objects and reasons of the Act of 1986 is that the muslim law limits the husband s liability to provide
