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(2014) 85 ACrC 964 : (2014) 5 AD(SC) 94 : (2014) 138 AIC 267 : (2014) 3 AICLR
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: (2015) 1 SimLC 197
SUPREME COURT OF INDIA
DIVISION BENCH

SHAMIM BANO — Appellant

Vs.

ASRAF KHAN — Respondent

( Before : Vikramajit Sen, J; Dipak Misra, J )
Criminal Appeal No. 820 of 2014 (Arising out of S.L.P. (Criminal) No. 4377 of 2012)
Decided on : 16-04-2014

Criminal Procedure Code, 1973 (CrPC) - Section 125, Section 126, Section
127, Section 127(3), Section 128, Section 482
Family Courts Act, 1984 - Section 7
Muslim Women (Protection of Rights on Divorce) Act, 1986 - Section 3,
Section 3(1), Section 3(3), Section 4, Section 5
Penal Code, 1860 (IPC) - Section 34, Section 498A

Criminal Procedure Code, 1973 — Section 125 — Muslim Women

(Protection of Rights on Divorce) Act, 1986 — Section 3 — Maintenance —
Divorced Muslim wife is entitled to apply for maintenance under Section 125 of
Code — Mahr is not such a quantum which can ipso facto absolve husband of
liability under the Code — Even when application has been filed under
provisions of the Act, Magistrate under the Act has power to grant
maintenance in favour of divorced Muslim woman and parameters and
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considerations are same as stipulated in Section 125 of Code.

Criminal Procedure Code, 1973 — Section 125 — Muslim Women (Protection
of Rights on Divorce) Act, 1986 — Section 3 — Maintenance — Denial —
Divorce took place during pendency of application under Section 125 of Code
— High Court is not correct in opining that when appellant-wife filed
application under Section 3 of the Act, she exercised her option — As
Magistrate still retains power of granting maintenance under Section 125 of
the Code to a divorced Muslim woman and proceeding was continuing without
any objection and ultimate result would be the same, there was no justification
on part of High Court to hold that proceeding after divorce took place was not
maintainable — Matter remitted to Magistrate for re-adjudication.
Cases Referred

Shabana Bano Vs. Imran Khan, AIR 2010 SC 305 : (2010) CriLJ 521 : (2009) 14
SCALE 331 : (2009) 1 SCR 190 : (2010) 1 UJ 186
Khatoon Nisa Vs. State of U.P. and Others, (2002) 7 JT 631 : (2002) 6 SCALE 165
Danial Latifi and Another Vs. Union of India, (2001) 8 AD 1 : AIR 2001 SC 3958 :
(2001) CriLJ 4660 : (2001) 2 DMC 714 : (2001) 8 JT 218 : (2001) 6 SCALE 537 :
(2001) 7 SCC 740 : (2001) AIRSCW 3932 : (2001) 7 Supreme 297
Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, AIR 1985 SC 945 : (1985)
CriLJ 875 : (1985) 1 Crimes 975 : (1985) 1 SCALE 767 : (1985) 2 SCC 556 : (1985)
3 SCR 844

Final Result : Allowed

JUDGMENT

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 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 u/s 498A read with Section 34 Indian Penal Code 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 u/s 498A/34 Indian Penal Code
before the trial court, the Appellant filed an application u/s 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 u/s 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 u/s 125 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
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separately and hence, she was not entitled to get the benefit of maintenance. The learned
Magistrate, while dealing with the application preferred u/s 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 u/s 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 u/s 125 of the Code was not
maintainable by a divorced woman without complying with the provisions contained in
Section 5 of the Act. It was further put forth that initial action u/s 125 of the Code by the
Appellant-wife was tenable but the same deserved to be thrown overboard after she had
filed an application u/s 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 u/s 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 u/s 125 of the Code even beyond the period of
Iddat if she was unable to maintain herself; that where an application u/s 3 of the Act had
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 u/s 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 u/s 125 of
the Code until she was divorced would be maintainable but after the divorce on filing of an
application u/s 3 of the Act, the claim of maintenance, in the absence of exercise of option
u/s 5 of the Act to be governed by Section 125 of the Code, was to be governed by the
provisions contained in the Act; that as the application u/s 3 of the Act having already been
dealt with by the learned Magistrate and allowed and affirmed by the High Court u/s 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 u/s 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.

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6. We have heard Mr. Fakhruddin, learned senior Counsel appearing for the Appellant, and
Mr. Kaustubh Anshuraj, learned Counsel appearing for the Respondent.
7. The two seminal issues that emanate for consideration are, first, whether the Appellant's
application for grant of maintenance u/s 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 u/s 3 of the Act after
the divorce for grant of mahr and return of gifts would disentitle the Appellant to sustain
the application u/s 125 of the Code; and second, whether regard being had to the present
fact situation, as observed by the High Court, the consent u/s 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 Vs. Shah Bano Begum and Others, , entertaining an
application u/s 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 divorced
woman was entitled to grant of maintenance u/s 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 u/s 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 u/s 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 Vs. Union
of India, 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 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 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
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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 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 Code of Criminal Procedure 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 Code of Criminal
Procedure 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 Code of
Criminal Procedure 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 u/s 125 Code of Criminal Procedure would
now be granted under the very Act itself. This being the position, the Act cannot be held to
be unconstitutional.
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 u/s 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 u/s 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.
12. At this Juncture, it is profitable to refer to another Constitution Bench decision in
Khatoon Nisa Vs. State of U.P. and Others, wherein question arose whether a Magistrate is

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entitled to invoke his jurisdiction u/s 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 u/s 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 u/s 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 the said case by reading
down the provisions of the Act, the validity of the Act has been upheld and it has been
observed that under the Act itself when parties agree, the provisions of Section 125 Code
of Criminal Procedure could be invoked as contained in Section 5 of the Act and even
otherwise, the magistrate under the Act has the power to grant maintenance in favour of a
divorced woman, and the parameters and considerations are the same as those in Section
125 Code of Criminal Procedure. It is undoubtedly true that in the case in hand, Section 5
of the Act has not been invoked. Necessarily, therefore, the magistrate has exercised his
jurisdiction u/s 125 Code of Criminal Procedure But, since the magistrate retains the power
of granting maintenance in view of the constitution bench decision in Danial Latifi's case
(supra) under the Act and since the parameters for exercise of that power are the same as
those contained in Section 125 Code of Criminal Procedure, we see no ground to interfere
with the orders of the magistrate granting maintenance in favour of a divorced Muslim
woman.
13. The aforesaid principle clearly lays down that even an application has been filed under
the provisions of the Act, the Magistrate under the Act has the power to grant maintenance
in favour of a divorced Muslim woman and the parameters and the considerations are the
same as stipulated in Section 125 of the Code. We may note that while taking note of the
factual score to the effect that the plea of divorce was not accepted by the Magistrate which
was upheld by the High Court, the Constitution Bench opined that as the Magistrate could
exercise power u/s 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 u/s 125 of the Code and
the effect of ultimate consequence.
14. Slightly recently, in Shabana Bano Vs. Imran Khan, , a two-Judge Bench, placing
reliance on Danial Latifi (supra), has ruled that:
The Appellant's petition u/s 125 Code of Criminal Procedure would be maintainable before
the Family Court as long as the Appellant does not remarry. The amount of maintenance to
be awarded u/s 125 Code of Criminal Procedure 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 in
consonance with the principle stated by the Constitution Bench in Khatoon Nisa (supra).

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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 u/s 125 of the Code would only be maintainable till she was divorced. It may
be noted here that during the pendency of her application u/s 125 of the Code the divorce
took place. The wife preferred an application u/s 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 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
u/s 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 u/s 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,
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 u/s 3 of the Act, she exercised her option. As
the Magistrate still retains the power of granting maintenance u/s 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
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.

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