Shabana Bano Vs. Imran Khan on 4 December, 2009
Bench: Tarun Chatterjee, Surinder Singh Nijjar
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2309 OF 2009
[Arising out of S.L.P.(Crl.) No.717 of 2009]
Shabana Bano ….Appellant
Imran Khan ….Respondent
J U D G M E N T
Deepak Verma, J.
1. Leave granted.
2. Appellant Shabana Bano was married to the
respondent Imran Khan according to Muslim rites at
Gwalior on 26.11.2001. According to the appellant, at
the time of marriage, necessary household goods to be
used by the couple were given. However, despite
this, the respondent-husband and his family members
treated the appellant with cruelty and continued to
demand more dowry.
Crl.A. @ SLP(Crl.)NO.717/09
3. After some time, the appellant became
pregnant and was taken to her parents’ house by the
respondent. The respondent threatened the appellant
that in case his demand of dowry is not met by the
appellant’s parents, then she would not be taken back
to her matrimonial home even after delivery.
4. Appellant delivered a child in her parental
home. Since even after delivery, respondent did not
think it proper to discharge his responsibility by
taking her back, she was constrained to file a
petition under Section 125 of the Code of Criminal
Procedure (for short, ‘Cr.P.C.’) against the
respondent in the Court of Family Judge, Gwalior. It
was averred by the appellant that respondent has been
earning a sum of Rs. 12,000/- per month by doing some
private work and she had no money to maintain herself
and her new-born child. Thus, she claimed a sum of
Rs.3000/- per month from the respondent towards
5. On notice being issued to the respondent, he Crl.A. @ SLP(Crl.)NO.717/09
denied all the contents of the petition filed by the
appellant under Section 125 of the Cr.P.C. except
admitting his marriage with the appellant.
6. Preliminary objections were raised by the
respondent that appellant has already been divorced
on 20.8.2004 in accordance with Muslim Law. Thus,
under the provisions of Muslim Women (Protection of
Rights on Divorce) Act, 1986 (hereinafter referred to
as `Muslim Act’), appellant is not entitled to any
maintenance after the divorce and after the expiry of
the iddat period. It was also contended by him that
appellant herself is earning Rs.6,000/- per month by
giving private tuitions and is not dependent on the
income of the respondent, thus, she is not entitled
to any maintenance. It was also contended by
respondent that appellant had gone to her parental
home on her own free-will and accord, after taking
all the jewellery and a sum of Rs.1000/- and despite
notice being sent, she has not returned to her
matrimonial home. Thus, for all these reasons, she is Crl.A. @ SLP(Crl.)NO.717/09
not entitled to receive any amount of maintenance.
7. The Family Court was pleased to frame issues
and parties went to trial. After considering the
matter from all angles, the learned Judge of the
Family Court partly allowed the appellant’s
application as under:
"(1) respondent shall pay Rs.2000/- per month as maintenance allowance to the petitioner from 26.4.2004, date of institution of petition to the date of divorce, i.e. 20.8.2004 and thereafter from 20.8.2004 to the period of iddat.
(2) respondent will bear cost of the suit of himself as well as of petitioner."
8. Thus, the claim of the appellant was allowed
to the extent of Rs. 2,000/- per month towards
maintenance from the date of institution of the
petition till the date of divorce, i.e., 20.8.2004
and further from the said date till the expiry of
iddat period but amount of maintenance thereafter was
9. The appellant was, therefore, constrained to
carry the matter further by filing Criminal Revision Crl.A. @ SLP(Crl.)NO.717/09
No. 285 of 2008 before the Gwalior Bench of the High
Court of Madhya Pradesh. The said Criminal Revision
came to be disposed of by learned Single Judge on
26.9.2008 and the order of the Family Court has
substantially been upheld and consequently, the
appellant’s Revision has been dismissed. It is this
order and the order passed by the Family Court which
are the subject-matter of challenge in this appeal by
grant of special leave.
10. At the outset, learned counsel for the
appellant contended that learned Single Judge has
gravely erred in dismissing the appellant’s Revision
on misconception of law on the ground that after
divorce of a Muslim wife, a petition under Section 125
of the Cr.P.C. would not be maintainable. It was also
contended that learned Single Judge proceeded on wrong
assumption in dismissing appellant’s Revision claiming
maintenance under Section 125 of the Cr.P.C. It was
also argued that both the courts below completely lost
sight of the provisions of Section 7(1)(f) of the Crl.A. @ SLP(Crl.)NO.717/09
Family Courts Act, 1984 (hereinafter referred to as
the ‘Family Act’).
11. On the other hand, Shri S.K. Dubey, learned
Senior Counsel for the respondent contended that no
illegality or perversity can be found in the order
passed by the learned Single Judge and the same calls
for no interference. It was also contended that the
appeal being devoid of any merit and substance,
deserves to be dismissed.
12. In the light of the aforesaid contentions,
we have heard the learned counsel for the parties and
perused the records.
13. The basic and foremost question that arises
for consideration is whether a Muslim divorced wife
would be entitled to receive the amount of
maintenance from her divorced husband under Section
125 of the Cr.P.C. and, if yes, then through which
14. Section 4 of Muslim Act reads as under:
"4. Order for payment of maintenance: -(1) Notwithstanding anything contained Crl.A. @ SLP(Crl.)NO.717/09
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 to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her:
Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by Crl.A. @ SLP(Crl.)NO.717/09
such of the other relatives as may
appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain herself and she has no
relatives as mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-section (1), the Magistrate may, by order, direct the State Wakf Board
established under Section 9 of the Wakf Act, 1954 (29 of 1954), or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1) or, as the case may be, to pay the shares of such of the
relatives who are unable to pay, at such periods as he may specify in his order."
15. Section 5 thereof deals with the option to be
governed by the provisions of Section 125 to 128 of
the Cr.P.C. It appears that parties had not given any
joint or separate application for being considered by
the Court. Section 7 thereof deals with transitional Crl.A. @ SLP(Crl.)NO.717/09
16. Family Act, was enacted w.e.f. 14th September,
1984 with a view to promote conciliation in, and
secure speedy settlement of, disputes relating to
marriage and family affairs and for matters connected
17. The purpose of enactment was essentially to
set up family courts for the settlement of family
disputes, emphasizing on conciliation and achieving
socially desirable results and adherence to rigid
rules of procedure and evidence should be eliminated.
In other words, the purpose was for early settlement
of family disputes.
18. The Act, inter alia, seeks to exclusively
provide within jurisdiction of the family courts the
matters relating to maintenance, including
proceedings under Chapter IX of the Cr.P.C.
19. Section 7 appearing in Chapter III of the
Family Act deals with Jurisdiction. Relevant
provisions thereof read as under:
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"7. Jurisdiction-(1) Subject to the other provisions of this Act, a Family Court shall –
(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate
civil Court under any law for the
time being in force in respect of
suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of
exercising such jurisdiction under
such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court
Explanation.- The suits and proceedings referred to in this sub- section are suits and proceedings of the following nature, namely:-
(a) …. …. ….
(b) …. …. ….
(c) …. …. ….
(d) …. …. ….
(e) …. …. ….
(f) a suit or proceeding for maintenance;
(g) …. …. …."
20. Section 20 of the Family Act appearing in
Chapter VI deals with overriding effect of the
provisions of the Act. The said section reads as Crl.A. @ SLP(Crl.)NO.717/09
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"20. Act to have overriding effect – The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
21. Bare perusal of Section 20 of the Family Act
makes it crystal clear that the provisions of this
Act shall have overriding effect on all other
enactments in force dealing with this issue.
22. Thus, from the abovementioned provisions it
is quite discernible that a Family Court established
under the Family Act shall exclusively have
jurisdiction to adjudicate upon the applications
filed under Section 125 of Cr.P.C.
23. In the light of the aforesaid contentions and
in view of the pronouncement of judgments detailing
the said issue, learned counsel for the appellant
submits that matter stands finally settled but
learned Single Judge wholly misconstrued the various
provisions of the different Acts as mentioned Crl.A. @ SLP(Crl.)NO.717/09
– 12 –
hereinabove, thus, committed a grave error in
rejecting the appellant’s prayer.
24. In our opinion, the point stands settled by
judgment of this Court reported in (2001) 7 SCC 740
titled Danial Latifi & Anr. Vs. Union of India
pronounced by a Constitution Bench of this Court.
Paras 30, 31 and 32 thereof fully establish the said
right of the appellant. The said paragraphs are
reproduced hereinunder :
"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.
Crl.A. @ SLP(Crl.)NO.717/09
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31. Even under the Act, the parties agreed 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.
32. As on the date the Act came into force the law applicable to Muslim divorced women is as declared by this Court in Shah Bano’s case [(1985) 2 SCC 556 Mohd. Ahmed Khan vs. Shah Bano Begum & Ors.]. In this case to find out the personal law of Muslims with regard to divorced women’s rights, the starting point should be Shah Bano’s case and not the original texts or any other material – all the more so when varying versions as to the authenticity of the source are shown to exist. Hence, we have refrained from referring to them in detail. That declaration was made after considering the Holy Quran, and other commentaries or other texts. When a Constitution Bench of this Court analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant textual material, we do not think, it is open for us to re-examine that position and delve into a research to reach another conclusion. We respectfully abide by what has been stated therein. All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this Court in Shah Bano’s case without mutilating its underlying ratio. We have carefully analysed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Bano’s case. The learned Crl.A. @ SLP(Crl.)NO.717/09
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Solicitor General contended that what has been stated in the Objects and Reasons in Bill leading to the Act is a fact and that we should presume to be correct. We have analysed the facts and the law in Shah Bano’s case and proceeded to find out the impact of the same on the Act. If the language of the Act is as we have stated, the mere fact that the Legislature took note of certain facts in enacting the law will not be of much materiality."
25. Judgment of this Court reported in (2007) 6
SCC 785 titled Iqbal Bano Vs. State of U.P.& Anr.
whereby the provisions contained in Section 125 of
the Cr.P.C. have been aptly considered and the
relevant portion of the order passed in Iqbal Bano’s
case reads as under:
"10. Proceedings under Section 125 Cr.P.C. are civil in nature. Even if the Court noticed that there was a divorced woman in the case in question, it was open to it to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125 Cr.P.C. and claims made under the Act are tried by the same court. In Vijay Kumar Prasad Vs State of Bihar (2004) 5 SCC 196 it was held that proceedings under Section 125 Cr.P.C. are civil in nature. It was noted as follows: (SCC p.200, Para 14).
14. The basic distinction between Section 488 of the old Code and Section 126 of the Code is that Section 126 has Crl.A. @ SLP(Crl.)NO.717/09
– 15 –
essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing on the date of application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where the husband and wife last resided together. As noted by this Court in several cases, proceedings under Section 125 of the Code are of civil nature. Unlike clauses (b) and (c) of Section 126 (1) an application by the father or the mother claiming
maintenance has to be filed where the person from whom maintenance is claimed lives."
26. In the light of the findings already recorded
in earlier paras, it is not necessary for us to go
into the merits. The point stands well settled which
we would like to reiterate.
27. The appellant’s petition under Section 125 of
the Cr.P.C. would be maintainable before the Family
Court as long as appellant does not remarry. The
amount of maintenance to be awarded under Section 125
of the Cr.P.C. cannot be restricted for the iddat
Crl.A. @ SLP(Crl.)NO.717/09
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28. Learned Single Judge appeared to be little
confused with regard to different provisions of
Muslim Act, Family Act and Cr.P.C. and thus was
wholly unjustified in rejecting the appellant’s
29. Cumulative reading of the relevant portions
of judgments of this Court in Danial Latifi (supra)
and Iqbal Bano (supra) would make it crystal clear
that even a divorced Muslim woman would be entitled
to claim maintenance from her divorced husband, as
long as she does not remarry. This being a
beneficial piece of legislation, the benefit thereof
must accrue to the divorced Muslim women.
30. In the light of the aforesaid discussion, the
impugned orders are hereby set aside and quashed. It
is held that even if a Muslim woman has been
divorced, she would be entitled to claim maintenance
from her husband under Section 125 of the Cr.P.C.
after the expiry of period of iddat also, as long as
she does not remarry.
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31. As a necessary consequence thereof, the
matter is remanded to the Family Court at Gwalior for
its disposal on merits at an early date, in
accordance with law. The respondent shall bear the
cost of litigation of the appellant. Counsel’s fees
32. Consequently, the appeal stands allowed to
the extent indicated above.
[B. SUDERSHAN REDDY]
December 04, 2009.