2007 Supreme(Gau) 118

IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
Md. Siddique Ali
Vs.
Mustt Fatema Rashid
Decided On: 06.02.2007

A Muslim woman, whose marriage has been dissolved by pronouncement of talaq, cannot make or maintain an application, under Section 125 CrPC, seeking maintenance from her former husband, who has dissolved the marriage by pronouncement of talaq, except when, on the date of the first hearing of the application under Section 3(2), a divorced woman and her former husband, in terms of Section 5, declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 Cr.PC.

Headnote:

Whether a Muslim woman, whose marriage has been dissolved by-pronouncement of talaq, can make or maintain an application, under Section 125 CrPC, seeking maintenance from her former husband, who has dissolved the marriage by pronouncement of talaq? If so, what are the conditions subject to which such a claim for maintenance by a Muslim divorced woman can be maintained under Section 125 Cr.PC? While dealing with a proceeding under the Muslim Women (Protection of Rights on Divorce) Act, 1986, (in short, 'the MW Act'), whether the court can direct a husband, who has dissolved his marriage by pronouncement of talaq, to pay maintenance allowance per month if he has already paid maintenance to his former wife for the period of iddat? Is a Muslim divorced woman entitled to make an application, under Section 3 of the MW Act, for direction to her former husband, who has dissolved the marriage by pronouncement of talaq and has also paid 'maintenance' to her for the period of iddat, to make 'provision' for her beyond the period of iddat and if so, subject to what conditions, such a direction can be given? Whether a proceeding under the MW Act is maintainable in a Family Court, constituted under the Family Court Act, 1984?

Fact of the Case:

The present set of revision petitions have raised prominent questions, which the court has addressed in this judgement. These questions include whether a Muslim woman, whose marriage has been dissolved by pronouncement of talaq, can make or maintain an application, under Section 125 CrPC, seeking maintenance from her former husband, who has dissolved the marriage by pronouncement of talaq. Additionally, the court has examined whether a Muslim divorced woman is entitled to make an application, under Section 3 of the MW Act, for direction to her former husband, who has dissolved the marriage by pronouncement of talaq and has also paid 'maintenance' to her for the period of iddat, to make 'provision' for her beyond the period of iddat. Furthermore, the court has considered whether a proceeding under the MW Act is maintainable in a Family Court, constituted under the Family Court Act, 1984.

Finding of the Court:

1. A Muslim woman, whose marriage has been dissolved by pronouncement of talaq, cannot make or maintain an application, under Section 125 CrPC, seeking maintenance from her former husband, who has dissolved the marriage by pronouncement of talaq, except when, on the date of the first hearing of the application under Section 3(2), a divorced woman and her former husband, in terms of Section 5, declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 Cr.PC. 2. A Muslim divorced woman is entitled to claim maintenance, beyond the period of iddat, from her former husband. However, the obligation of a Muslim husband to pay maintenance is confined to the period of iddat and once the period of iddat expires, the responsibility of providing maintenance falls on the relatives of the Muslim divorcee and when there is no relative or when there are relatives, but the relatives are not capable of supporting the divorcee, then, the court can order the State Wakf Board to pay the 'maintenance'. 3. A Muslim divorced woman is entitled to make an application, under Section 3 of the MW Act, for direction to her former husband, who has dissolved the marriage by pronouncement of talaq and has also paid 'maintenance' to her for the period of iddat, to make 'provision' for her beyond the period of iddat. The 'provision', so made, would obviously include her 'maintenance' as well. This 'provision' must be made by the former husband within the period of iddat and not thereafter. 4. A Family Court does not have the jurisdiction to entertain applications of a Muslim divorced woman under Section 3 and/or 4 of the MW Act.

Issues: 1. Whether a Muslim woman, whose marriage has been dissolved by pronouncement of talaq, can make or maintain an application, under Section 125 CrPC, seeking maintenance from her former husband, who has dissolved the marriage by pronouncement of talaq? 2. Whether a Muslim divorced woman is entitled to claim maintenance, beyond the period of iddat, from her former husband? 3. Whether a Muslim divorced woman is entitled to make an application, under Section 3 of the MW Act, for direction to her former husband, who has dissolved the marriage by pronouncement of talaq and has also paid 'maintenance' to her for the period of iddat, to make 'provision' for her beyond the period of iddat? 4. Whether a proceeding under the MW Act is maintainable in a Family Court, constituted under the Family Court Act, 1984?

Ratio Decidendi: 1. The court held that a Muslim woman, whose marriage has been dissolved by pronouncement of talaq, cannot make or maintain an application, under Section 125 CrPC, seeking maintenance from her former husband, who has dissolved the marriage by pronouncement of talaq, except when, on the date of the first hearing of the application under Section 3(2), a divorced woman and her former husband, in terms of Section 5, declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 Cr.PC. The court reasoned that the MW Act is a special mechanism for protecting the rights of the Muslim women, who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. 2. The court held that a Muslim divorced woman is entitled to claim maintenance, beyond the period of iddat, from her former husband. However, the obligation of a Muslim husband to pay maintenance is confined to the period of iddat and once the period of iddat expires, the responsibility of providing maintenance falls on the relatives of the Muslim divorcee and when there is no relative or when there are relatives, but the relatives are not capable of supporting the divorcee, then, the court can order the State Wakf Board to pay the 'maintenance'. The court relied on the decision in Danial Latifi v. Union of India, wherein the Supreme Court held that the maintenance under the MW Act is to be paid by the husband for the duration of the iddat period and this obligation does not extend beyond the period of iddat. 3. The court held that a Muslim divorced woman is entitled to make an application, under Section 3 of the MW Act, for direction to her former husband, who has dissolved the marriage by pronouncement of talaq and has also paid 'maintenance' to her for the period of iddat, to make 'provision' for her beyond the period of iddat. The 'provision', so made, would obviously include her 'maintenance' as well. This 'provision' must be made by the former husband within the period of iddat and not thereafter. The court reasoned that the MW Act casts two distinct and separate obligations on the husband, namely, (i) to make a "reasonable and fair provision" for his divorced wife; and (ii) to provide "maintenance" for her. 4. The court held that a Family Court does not have the jurisdiction to entertain applications of a Muslim divorced woman under Section 3 and/or 4 of the MW Act. The court reasoned that the MW Act is a later enactment and, hence, the provisions of the Family Courts Act, 1984, will not override the provisions of the MW Act. Additionally, the court noted that there is no enactment containing an express provision that the Family Courts shall have the jurisdiction to deal with applications made under the MW Act.

Final Decision: 1. The court dismissed the revision petition filed by the Muslim woman, who had sought maintenance from her former husband under Section 125 CrPC, as she had not made a declaration under Section 5 of the MW Act to be governed by the provisions of Sections 125 to 128 Cr.PC. 2. The court allowed the revision petition filed by the Muslim woman, who had sought maintenance from her former husband beyond the period of iddat, and directed the husband to pay maintenance to the wife. 3. The court allowed the revision petition filed by the Muslim woman, who had sought direction to her former husband to make 'provision' for her beyond the period of iddat, and directed the husband to make such 'provision'. 4. The court dismissed the revision petition filed by the Muslim woman, who had sought to maintain an application under the MW Act in a Family Court, as the Family Court did not have the jurisdiction to entertain such applications.