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PUNJAB & HARYANA HIGH COURT
H.S.Brar, K.S.Kumaran and Swatanter Kumar JJ.
Kaka
Versus
Hassan Bano
Criminal Revision No. 45 of 1992,
Decided On : OCTOBER 21, 1997
The Muslim Women (Protection of Rights on Divorce) Act, 1986 (the Act) does not invalidate or render ineffective orders passed under Section 125 of the Code of Criminal Procedure, 1973 (the Code), which have become final, as the Act does not divest parties of vested rights and benefits. The right of a minor child to claim maintenance under Section 125 of the Code is not affected by the Act, except for the initial period of two years from the date of birth of the child, if the father has provided reasonable and fair provision and maintenance to the child. The claim of maintenance by a divorced Muslim wife is not restricted to the Iddat period unless the husband has provided adequate provision for her life or till she remarries. A divorced Muslim woman cannot have recourse to the provisions of Sections 125 to 128 of the Code after the commencement of the Act, unless both parties submit affidavits to be governed by such provisions in furtherance of Section 5 of the Act.
Fact of the Case:
The petitioner, a Muslim husband, challenged the order of the Magistrate directing him to pay maintenance to his divorced wife and child under Section 125 of the Code of Criminal Procedure, 1973 (the Code). The petitioner argued that the order was invalidated by the Muslim Women (Protection of Rights on Divorce) Act, 1986 (the Act), which provides for maintenance of divorced Muslim women. The petitioner also argued that he had no obligation to pay maintenance beyond the Iddat period as he had divorced his wife in 1987.
Finding of the Court:
The Court held that the Act does not invalidate or render ineffective orders passed under Section 125 of the Code, which have become final, as the Act does not divest parties of vested rights and benefits. The Court also held that the right of a minor child to claim maintenance under Section 125 of the Code is not affected by the Act, except for the initial period of two years from the date of birth of the child, if the father has provided reasonable and fair provision and maintenance to the child. The Court further held that the claim of maintenance by a divorced Muslim wife is not restricted to the Iddat period unless the husband has provided adequate provision for her life or till she remarries. Finally, the Court held that a divorced Muslim woman cannot have recourse to the provisions of Sections 125 to 128 of the Code after the commencement of the Act, unless both parties submit affidavits to be governed by such provisions in furtherance of Section 5 of the Act.
Issues: 1. Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986 (the Act) invalidates or renders ineffective orders passed under Section 125 of the Code of Criminal Procedure, 1973 (the Code), which have become final? 2. Whether the right of a minor child to claim maintenance under Section 125 of the Code is affected by the Act? 3. Whether the claim of maintenance by a divorced Muslim wife is restricted to the Iddat period? 4. Whether a divorced Muslim woman can have recourse to the provisions of Sections 125 to 128 of the Code after the commencement of the Act?
Ratio Decidendi: 1. The Act does not contain any provision that expressly or impliedly invalidates or renders ineffective orders passed under Section 125 of the Code, which have become final. 2. The Act provides for maintenance of divorced Muslim women, but it does not affect the right of a minor child to claim maintenance under Section 125 of the Code, except for the initial period of two years from the date of birth of the child, if the father has provided reasonable and fair provision and maintenance to the child. 3. The claim of maintenance by a divorced Muslim wife is not restricted to the Iddat period unless the husband has provided adequate provision for her life or till she remarries. 4. A divorced Muslim woman cannot have recourse to the provisions of Sections 125 to 128 of the Code after the commencement of the Act, unless both parties submit affidavits to be governed by such provisions in furtherance of Section 5 of the Act.
Final Decision: The Court dismissed the revision petition preferred by the husband against the order dated 21.12.1991. The Court further directed the petitioner to pay the arrears of maintenance to his divorced wife and child, up-to-date within a period of three months from the date of the judgment.
Swatanter Kumar, J.
1. The people of India gave unto themselves a resolution to constitute India into a sovereign, socialistic, secular, democratic, republic with a purpose and object to secure to its citizens justice in all spheres, liberty in belief and expression and equality of status and opportunity to promote fraternity assuring the dignity of the individual and the unity and integrity of the nation. This is what the preamble to the Constitution of India says in explicit words. Dignity of an individual irrespective of the status, religion, class and community to which he or she belongs is of paramount consideration to the State and its instrumentalities. An un-qualified effort on the part of the State to assure the basic need of an individual is a constitutional obligation. Secularism in a democratic system is an extended principle of assured equality. The Constitution is the apex law and is above all other of its kin. Laws, whether they are enacted by the State or the Centre, within the sphere of their legislative jurisdiction and the customary or personal laws, all must give way to the supreme law of land; the Constitution of India. All other laws must flow in comity to the constitutional law and all laws must be subject to the provisions framed protections provided and limitations imposed under the Constitution. The Constitution in our democratic system is the veritable precept to all other law irrespective of their origin and the authority legislating.
2. The term, secularism being one of the basic structures of the Constitution of India has a possible perversive meaning and connotation in the entire social and legal set up of our country. Secularism is the belief that the state, morals, education, etc. should be independent of religion says G.J. Holyoakes system of social ethics (refer The Chambers 20th Century Dictionary).
3. Sections 125 to 128 in Chapter IX of the Criminal Procedure Code, 1973, hereinafter referred to as the Code, are a self contained Code in a Code. In other words, a full self-contained procedure has been provided for a wife divorced or not, to claim maintenance from her husband and other relations where the person having sufficient means, neglects or refuses to maintain the wife or his legitimate or illegitimate children married or not who are unable to maintain themselves. The purpose of these provisions is to provide immediate means of subsistence to the applicant before the applicant is withered away by the hard ways of life and realities, for lack of minimum means. These provisions universally apply to all applicants irrespective of the community, caste or creed they belong to. A divorced wife, too could raise a claim and is entitled to receive maintenance, if she satisfies the basic ingredients of these provisions contained in the Code and her claim falls in line with the settled principles of law.
4. We have opted for a secular republic. Secularism under the Constitution means that the State does not owe loyalty to any particular religion and there is no State religion. The Constitution gives equal freedom to all religions. Every one has the freedom to follow and propagate his own religion. But the religion of the individual or denomination has nothing to do in the matter of socio-economic laws of State. The freedom of religion under the Constitution does not allow religion to impinge adversely on the secular rights of the citizens and/or power of the State to regulate socio-economic relations.
5. Personal law cannot take away the statutory right and it must tilt in favour of the statutory rights when the situation so demands. Propriety of legislative discipline and catena of judgments of the highest Court of the land have consistently settled the proposition that statutory laws take precedence over personal laws and statutory law has to be subject to the constitutional mandate.
6. No amount of work in customary or statutory law can be permitted to create a dent in the basic struc
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