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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.820 OF 2014 (Arising out of S.L.P. (Criminal) No. 4377 of 2012)

Shamim Bano … Appellant

Versus

Asraf Khan …Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The appellant, Shamim Bano, and the respondent, Asraf  

Khan,  were  married  on  17.11.1993  according  to  the  

Muslim Shariyat  law.   As the appellant was meted with  

cruelty  and  torture  by  the  husband  and  his  family

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members regarding demand of dowry, she was compelled  

to lodge a report at the Mahila Thana, Durg, on 6.9.1994,  

on the basis of which a criminal case under Section 498-A  

read with Section 34 IPC was initiated and, eventually, it  

was tried by the learned Magistrate at Rajnandgaon who  

acquitted the accused persons of the said charges.   

3. Be  it  noted,  during  the  pendency  of  the  criminal  case  

under  Section  498-A/34  IPC  before  the  trial  court,  the  

appellant  filed  an  application  under  Section  125 of  the  

Code of Criminal Procedure (for short “the Code”) in the  

Court of Judicial Magistrate First Class, Durg for grant of  

maintenance  on  the  ground  of  desertion  and  cruelty.  

While  the  application  for  grant  of  maintenance  was  

pending,  divorce  between  the  appellant  and  the  

respondent took place on 5.5.1997.  At that juncture, the  

appellant filed Criminal Case No. 56 of 1997 under Section  

3 of the Muslim Women (Protection of Rights on Divorce)  

Act, 1986 (for brevity “the Act”) before the learned Judicial  

Magistrate First Class, Durg.  The learned Magistrate, who  

was hearing the application preferred under Section 125

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of  the  Code,  dismissed  the  same on  14.7.1999  on  the  

ground  that  the  appellant  had  not  been  able  to  prove  

cruelty and had been living separately and hence, she was  

not  entitled  to  get  the  benefit  of  maintenance.   The  

learned  Magistrate,  while  dealing  with  the  application  

preferred  under  Section  3  of  the  Act,  allowed  the  

application directing the husband and others to pay a sum  

of  Rs.11,786/-  towards  mahr,  return  of  goods  and  

ornaments and a sum of Rs.1,750/- towards maintenance  

during the Iddat period.

4. Being grieved by the order not granting maintenance, the  

appellant filed Criminal Revision No. 275 of 1999 and the  

revisional court concurred with the view expressed by the  

learned Magistrate and upheld the order of dismissal.  The  

aforesaid situation constrained the appellant to invoke the  

jurisdiction  of  the  High  Court  under  Section 482 of  the  

code in Misc. Crl. Case No. 188 of 2005.  Before the High  

Court a preliminary objection was raised on behalf of the  

respondent-husband that the petition under Section 125  

of the Code was not maintainable by a divorced woman

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without  complying  with  the  provisions  contained  in  

Section 5 of the Act.  It was further put forth that initial  

action under Section 125 of the Code by the appellant-

wife  was  tenable  but  the  same deserved to  be  thrown  

overboard after she had filed an application under Section  

3 of the Act for return of gifts and properties, for payment  

of  mahr  and  also  for  grant  of  maintenance  during  the  

‘Iddat’ period.  It was also urged that the wife was only  

entitled to maintenance during the Iddat period and the  

same having been granted in the application, which was  

filed after the divorce, grant of any maintenance did not  

arise in exercise of power under Section 125 of the Code.  

Quite  apart  from the  above,  both  the  parties  also  had  

advanced  certain  contentions  with  regard  to  obtaining  

factual score.

5. The High Court, after referring to certain authorities, came  

to  hold  that  a  Muslim  woman  is  entitled  to  claim  

maintenance under Section 125 of the Code even beyond  

the period of Iddat if she was unable to maintain herself;  

that where an application under Section 3 of the Act had

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already  been moved,  the  applicability  of  the  provisions  

contained in Sections 125 to 128 of the Code in the matter  

of claim of maintenance would depend upon exercise of  

statutory option by the divorced woman and her former  

husband  by  way  of  declaration  either  in  the  form  of  

affidavit  or  in  any  other  declaration  in  writing  in  such  

format as has been provided either jointly or separately  

that  they  would  be  preferred  to  be  governed  by  the  

provisions of the Code; that the applicability of Sections  

125 to 128 of the Code would depend upon exercise of  

statutory option available to parties under Section 5 of the  

Act and as the appellant-wife had taken recourse to the  

provisions contained in the Act,  it  was to be concluded  

that she was to be governed by the provisions of the Act;  

that the claim of the appellant under Section 125 of the  

Code until  she was divorced would be maintainable but  

after the divorce on filing of an application under Section  

3 of the Act, the claim of maintenance, in the absence of  

exercise  of  option  under  Section  5  of  the  Act  to  be  

governed by Section 125 of the Code, was to be governed

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by  the  provisions  contained  in  the  Act;  that  as  the  

application under Section 3 of the Act having already been  

dealt  with  by  the  learned  Magistrate  and  allowed  and  

affirmed by the High Court under Section 482 of the Code,  

the claim of the appellant for grant of maintenance had to  

be confined only to the period before her divorce; and that  

the courts below had rightly concluded that the wife was  

not entitled to maintenance as she had not been able to  

make out a case for grant of maintenance under Section  

125 of the Code; and further that the said orders deserved  

affirmation  as  interim maintenance  was  granted  during  

the pendency of the proceeding upto the date of divorce.  

Being of  this  view,  the High Court  declined to interfere  

with the orders of the courts below in exercise of inherent  

jurisdiction.

6. We  have  heard  Mr.  Fakhruddin,  learned  senior  counsel  

appearing for the appellant, and Mr. Kaustubh Anshuraj,  

learned counsel appearing for the respondent.

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7. The  two  seminal  issues  that  emanate  for  consideration  

are, first, whether the appellant’s application for grant of  

maintenance  under  Section  125  of  the  Code  is  to  be  

restricted to the date of divorce and, as an ancillary to it,  

because of filing of an application under Section 3 of the  

Act after the divorce for grant of mahr and return of gifts  

would disentitle the appellant to sustain the application  

under  Section  125  of  the  Code;  and  second,  whether  

regard  being  had  to  the  present  fact  situation,  as  

observed by the High Court, the consent under Section 5  

of the Act was an imperative to maintain the application.

8. To appreciate the central controversy, it is necessary to  

sit  in a time machine for  apt recapitulation.   In  Mohd.  

Ahmed  Khan  v.  Shah  Bano  Begum  and  others1,  

entertaining an application under Section 125 of the Code,  

the learned Magistrate had granted monthly maintenance  

for  a  particular  sum which  was  enhanced  by  the  High  

Court in exercise of revisional jurisdiction.  The core issue  

before  the  Constitution  Bench  was  whether  a  Muslim  

1 (1985) 2 SCC 556

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divorced  woman  was  entitled  to  grant  of  maintenance  

under Section 125 of the Code.  Answering the said issue,  

after  referring  to  number  of  texts  and  principles  of  

Mohammedan Law, the larger Bench opined that taking  

the language of the statute, as one finds it,  there is no  

escape from the conclusion that a divorced Muslim wife is  

entitled to apply for maintenance under Section 125 of the  

Code and that mahr is not such a quantum which can ipso  

facto absolve the husband of the liability under the Code,  

and would not bring him under Section 127(3)(b) of the  

Code.

9. After the aforesaid decision was rendered, the Parliament  

enacted the Act.  The constitutional validity of the said Act  

was assailed in Danial Latifi and another v. Union of  

India2 wherein  the  Constitution  bench  referred  to  the  

Statement of Objects and Reasons of the Act, took note of  

the true position of the ratio laid down in  Shah Bano’s  

case  and  after  adverting  to  many  a  facet  upheld  the  

constitutional  validity  of  the  Act.   While  interpreting  

2 (2001) 7 SCC 740

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Sections 3 and 4 of the Act, the Court came to hold that  

the intention of the Parliament is that the divorced woman  

gets sufficient means of livelihood after the divorce and,  

therefore, the word “provision” indicates that something is  

provided in advance for meeting some needs.  Thereafter,  

the Court proceeded to state thus: -

“In other words, at the time of divorce the Muslim  husband  is  required  to  contemplate  the  future  needs  and  make  preparatory  arrangements  in  advance for meeting those needs. Reasonable and  fair  provision  may  include  provision  for  her  residence, her food, her clothes, and other articles.  The  expression  “within”  should  be  read  as  “during” or “for” and this cannot be done because  words  cannot  be  construed  contrary  to  their  meaning as the word “within” would mean “on or  before”, “not beyond” and, therefore, it was held  that  the  Act  would  mean  that  on  or  before  the  expiration  of  the  iddat  period,  the  husband  is  bound to make and pay maintenance to the wife  and if he fails to do so then the wife is entitled to  recover  it  by  filing  an  application  before  the  Magistrate  as  provided  in  Section  3(3)  but  nowhere has Parliament provided that reasonable  and fair provision and maintenance is limited only  for  the iddat period and not  beyond it.  It  would  extend to the whole life of the divorced wife unless  she gets married for a second time.”

10. In the said case the Constitution Bench observed that in  

actuality the Act has codified the rationale contained in

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Shah Bano’s case.  While interpreting Section 3 of the  

Act, it was observed that the said provision provides that  

a divorced woman is entitled to obtain from her former  

husband “maintenance”, “provision” and “mahr”, and to  

recover  from his  possession  her  wedding  presents  and  

dowry and authorizes the Magistrate to order payment or  

restoration  of  these  sums  or  properties  and  further  

indicates that the husband has two separate and distinct  

obligations: (1) to make a “reasonable and fair provision”  

for his divorced wife; and (2) to provide “maintenance” for  

her.  The Court further observed that the emphasis of this  

section  is  not  on  the  nature  or  duration  of  any  such  

“provision” or “maintenance”, but on the time by which  

an  arrangement  for  payment  of  provision  and  

maintenance  should  be  concluded,  namely,  “within  the  

iddat period”, and if the provisions are so read, the Act  

would  exclude  from  liability  for  post-iddat  period  

maintenance to  a  man who has already discharged his  

obligations  of  both  “reasonable  and  fair  provision”  and  

“maintenance” by paying these amounts in a lump sum to

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his wife,  in addition to having paid his wife’s mahr and  

restored her dowry as per Sections 3(1)(c) and 3(1)(d) of  

the Act.  Thereafter the larger Bench opined thus:-  

“30. A comparison of these provisions with Section  125  CrPC  will  make  it  clear  that  requirements  provided in Section 125 and the purpose, object  and scope thereof being to prevent vagrancy by  compelling those who can do so to support those  who are unable to  support  themselves and who  have a normal and legitimate claim to support are  satisfied.  If  that  is  so,  the  argument  of  the  petitioners that a different scheme being provided  under the Act which is equally or more beneficial  on the interpretation placed by us from the one  provided  under  the  Code  of  Criminal  Procedure  deprive them of their right, loses its significance.  The object  and scope of  Section 125 CrPC is  to  prevent  vagrancy  by  compelling  those  who  are  under  an  obligation  to  support  those  who  are  unable  to  support  themselves  and  that  object  being  fulfilled,  we  find  it  difficult  to  accept  the  contention urged on behalf of the petitioners.

31. Even under  the  Act,  the  parties  agree that  the provisions of Section 125 CrPC would still  be  attracted and even otherwise, the Magistrate has  been  conferred  with  the  power  to  make  appropriate  provision  for  maintenance  and,  therefore,  what  could  be  earlier  granted  by  a  Magistrate under Section 125 CrPC would now be  granted under the very Act itself.  This being the  position,  the  Act  cannot  be  held  to  be  unconstitutional.”

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11. Eventually  the larger  Bench concluded that  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 and such a reasonable and fair  

provision  extending  beyond  the  iddat  period  must  be  

made by the husband within the iddat period in terms of  

Section 3 of the Act; that liability of a Muslim husband to  

his divorced wife arising under Section 3 of the Act to pay  

maintenance is not confined to the iddat period; and that  

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 to maintain her in proportion  

to  the  properties  which  they  inherit  on  her  death  

according  to  Muslim  law  from  such  divorced  woman  

including  her  children  and  parents  and  if  any  of  the  

relatives being unable to pay maintenance, the Magistrate  

may direct the State Wakf Board established under the  

Act to pay such maintenance.

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12. At  this  Juncture,  it  is  profitable  to  refer  to  another  

Constitution Bench decision in Khatoon Nisa v. State of  

U.P.  and  Ors.,3 wherein  question  arose  whether  a  

Magistrate  is  entitled  to  invoke  his  jurisdiction  under  

Section 125 of the Code to grant maintenance in favour of  

a divorced Muslim woman.  Dealing with the said issue the  

Court ruled that subsequent to the enactment of the Act  

as it was considered that the jurisdiction of the Magistrate  

under Section 125 of the Code can be invoked only when  

the conditions precedent mentioned in Section 5 of the  

Act are complied with.  The Court noticed that in the said  

case  the  Magistrate  had  returned  a  finding  that  there  

having  been  no  divorce  in  the  eye  of  law,  he  had  the  

jurisdiction to grant maintenance under Section 125 of the  

Code.  The said finding of the magistrate had been upheld  

by  the  High  Court.    The  Constitution  Bench,  in  that  

context, ruled thus:  

“The validity of the provisions of the Act was for  consideration before the constitution bench in the  case of Danial Latifi and Anr. v. Union of India.  In  

3 2002 (6) SCALE 165

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was  upheld  by  the  High  Court,  the  Constitution  Bench  

opined that as the Magistrate could exercise power under  

Section  125  of  the  Code  for  grant  of  maintenance  in  

favour  of  a  divorced Muslim woman under the Act,  the  

order  did  not  warrant  any  interference.   Thus,  the  

emphasis was laid on the retention of the power by the  

Magistrate under Section 125 of the Code and the effect  

of ultimate consequence.   

14. Slightly recently, in Shabana Bano v. Imran Khan4, a  

two-Judge  Bench,  placing  reliance  on  Danial  Latifi  

(supra), has ruled that: -

“The appellant’s petition under Section 125 CrPC  would be maintainable before the Family Court as  long  as  the  appellant  does  not  remarry.   The  amount  of  maintenance  to  be  awarded  under  Section  125  CrPC  cannot  be  restricted  for  the  iddat period only.”

Though  the  aforesaid  decision  was  rendered  

interpreting Section 7 of the Family Courts Act, 1984, yet the  

principle stated therein would be applicable, for the same is  

4 (2010) 1 SCC 666

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in consonance with the principle stated by the Constitution  

Bench in Khatoon Nisa (supra).   

15. Coming to the case at hand, it is found that the High  

Court has held that as the appellant had already taken  

recourse to Section 3 of the Act after divorce took place  

and obtained relief  which has been upheld by the High  

Court,  the  application  for  grant  of  maintenance  under  

Section 125 of the Code would only be maintainable till  

she was divorced.  It may be noted here that during the  

pendency  of  her  application  under  Section  125  of  the  

Code  the  divorce  took  place.   The  wife  preferred  an  

application under Section 3 of the Act for grant of mahr  

and return of articles.  The learned Magistrate, as is seen,  

directed for return of the articles, payment of quantum of  

mahr  and  also  thought  it  appropriate  to  grant  

maintenance  for  the  Iddat  period.   Thus,  in  effect,  no  

maintenance had been granted to  the wife  beyond the  

Iddat period by the learned Magistrate as the petition was  

different.   We  are  disposed  to  think  so  as  the  said  

application, which has been brought on record, was not

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filed  for  grant  of  maintenance.   That  apart,  the  

authoritative interpretation in  Danial Latifi  (supra) was  

not available.  In any case, it would be travesty of justice if  

the appellant would be made remediless.  Her application  

under  Section  125  of  the  Code  was  continuing.   The  

husband contested the same on merits without raising the  

plea of absence of consent.  Even if an application under  

Section 3 of the Act for grant of maintenance was filed,  

the parameters of Section 125 of the Code would have  

been  made  applicable.   Quite  apart  from  that,  the  

application for grant of maintenance was filed prior to the  

date of divorce and hearing of the application continued.  

16. Another aspect which has to be kept uppermost in mind  

is  that  when the  marriage breaks up,  a  woman suffers  

from  emotional  fractures,  fragmentation  of  sentiments,  

loss of economic and social security and, in certain cases,  

inadequate  requisites  for  survival.   A  marriage  is  

fundamentally a unique bond between two parties.  When  

it  perishes  like  a  mushroom,  the  dignity  of  the  female  

fame gets corroded.  It is the law’s duty to recompense,

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and  the  primary  obligation  is  that  of  the  husband.  

Needless  to  emphasise,  the  entitlement  and  the  

necessitous  provisions  have  to  be  made  in  accordance  

with the parameters of law.

17. Under  these  circumstances,  regard  being  had  to  the  

dictum in Khatoon Nisa’s case, seeking of option would  

not make any difference.  The High Court is not correct in  

opining  that  when  the  appellant-wife  filed  application  

under Section 3 of the Act, she exercised her option.  As  

the  Magistrate  still  retains  the  power  of  granting  

maintenance under Section 125 of the Code to a divorced  

Muslim woman and the proceeding was continuing without  

any objection and the ultimate result would be the same,  

there was no justification on the part of the High Court to  

hold that the proceeding after the divorce took place was  

not maintainable.   

18. It  is  noticed that the High Court has been principally  

guided by the issue of  maintainability  and affirmed the  

findings.  Ordinarily, we would have thought of remanding

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the matter to the High Court for reconsideration from all  

spectrums  but  we  think  it  appropriate  that  the  matter  

should be heard and dealt with by the Magistrate so that  

parties can lead further evidence.  Be it clarified, if, in the  

meantime, the appellant has remarried, the same has to  

be  taken into  consideration,  as  has  been stated  in  the  

aforestated authorities for grant of maintenance.  It would  

be open to the appellant-wife to file a fresh application for  

grant of interim maintenance, if so advised.  Be it clarified,  

we  have  not  expressed  anything  on  the  merits  of  the  

case.

19. In the result, the appeal is allowed and the impugned  

orders  are set  aside  and the  matter  is  remitted  to  the  

learned Magistrate for re-adjudication of the controversy  

in  question  keeping  in  view  the  principles  stated  

hereinabove.

………………………………J. [Dipak Misra]

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………………………………J. [Vikramajit Sen]

New Delhi; April 16, 2014.