SHABANA BANOversusIMRAN KHAN

                  [2009] 16 (ADDL.) S.C.R. 190


A                       SHABANA BANO
                                 V.
                          IMRAN KHAN
               (Criminal Appeal No. 2309 of 2009)
                       DECEMBER 4, 2009
B
     [B. SUDERSHAN REDDY AND DEEPAK VERMA, JJ.]

        Code of Criminal Procedure, 1973 - s.125:

c       Maintenance - Claim by divorced Muslim woman -
  Jurisdiction of Family Court - Held: Divorced Muslim woman
  entitled to claim maintenance from her husband under s. 125
  CrPC, even after expiry of 'iddat' period, as long as she does
  not remarry- Beneficial legislation - Family Courts Act, 1984
D
  - ss. 7 and 20.

        Family Courts Act, 1984 - Enactment of - Object and
    purpose - Discussed.

      Appellant, a Muslim woman, filed maintenance
E petition under s.125 CrPC against her husband
  (respondent) in the Court of Family Judge. Respondent
  contested the petition inter a/ia contending that appellant
  was already divorced by him in accordance with Muslim
  law and that under the provisions of the Muslim Women            ~

F (Protection of Rights on Divorce) Act, 1986, appellant was
  not entitled to any maintenance after divorce and after
  expiry of the iddat period.

      The question which arose for consideration in the
  present appeal was whether a Muslim divorced wife
G would be entitled to receive maintenance from her
  divorced husband under s.125 CrPC and, if yes, through
  which forum.

        Allowing the appeal, the Court
H                              190
              SHABANA SANO v. IMRAN KHAN                    191

~         HELD: 1.1. The Family Courts Act, 1984, was enacted A
    with a view to promote conciliation in, and secure speedy
    settlement of, disputes relating to marriage and family
    affairs and for matters connected therewith. The Act, inter
    alia, seeks to exclusively provide within jurisdiction of the
    family courts the matters relating to maintenance, 8
    including proceedings under Chapter IX of the CrPC
    (comprising of ss. 125 to 128). S.20 of the said Family Act
    makes it clear that the provisions of this Act have
    overriding effect on all other enactments in force dealing
    with this issue. Thus, a Family Court established under
    the said Family Act has exclusive jurisdiction to adjudicate C
    upon the applications filed under s.125 CrPC. [Paras 16,
    18, 2.1 and 22] [196-H; 197-A; 198-C-D]
         1.2. The appellant's petition under s.125 CrPC would
    be maintainable before the Family Court as long as
    appellant does not remarry. The amount of maintenance D
    to be awarded under s.125 CrPC cannot be restricted for
    the iddat period only. This being a beneficial piece of
    legislation, the benefit thereof must accrue to the
    divorced Muslim women. Even if a Muslim woman has
    been divorced, she would be entitled to claim E
    maintenance from her husband under s.125 CrPC after
    the expiry of period of iddat also, as long as she does not
    remarry. [Paras 27, 29 and 30] [201-D-E; G-H; 202-A]
        Court, Gwalior. Matter thus remanded for fresh
    adjudication by the Family.                                    F
         Danial Latifi & Anr. v. Union of India (2001) 7 SCC 740
    and Iqbal Bano v. State of U.P.& Anr. (2007) 6 SCC 785,
    relied on.
                        Case Law Reference:                        G
        (2001) 1sec140           relied on            Para 24
        (2007) 6 SCC 785         relied on            Para 25
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 2309 of 2009.
                                                                   H
    192 SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.


A       From the Judgment & Order dated 26.9.2008 of the High        •
    Court of Judicature at Jabalpur Bench at Gwalior in Criminal
    Revision Case No. 285 of 2008.

        D. Mahesh Babu for the Appellant.
B       S.K. Dubey, Rajesh, Dharam Singh, Yogesh nwari for the
    Respondent.

        The Judgment of the Court was delivered by

        DEEPAK VERMA, J. 1. Leave granted.
c
       2. Appellant Shabana Bano was married to the
  respondent lmran 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
D were given. However, despite this, the respondent-husband and
  his family members treated the appellant with cruelty and
  continued to demand more dowry.

       3. After some time, the appellant became pregnant and
E 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
F 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
G 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 maintenance.
H
                             SHABANA BANO v. IMRAN KHAN                         193
                                 [DEEPAK VERMA, J.]
      -I             5. On notice being issued to the respondent, he denied            A
               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            B
               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
                                                                                       c
               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        D

           ~
               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 not entitled to receive any amount of maintenance.

                    7. The Family Court was pleased to frame issues and                E
               parties went to trial. After considering the{Tlatter from all angles,
               the learned Judge of the Family Court partly allowed the
               appellant's application as under:

           1        "(1) respondent shall pay Rs.2000/- per month as
                                                                                       F
                    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       G
                   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.,
                                                                                       H
    194 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A 20.8.2004 and further from the said date till the expiry of iddat
  period but amount of maintenance thereafter was denied.

       9. The appellant was, therefore, constrained to carry the
  matter further by filing Criminal Revision No. 285 of 2008 before
B 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
c 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
D 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
E argued that both the courts below completely lost sight of the
  provisions of Section 7(1)(f) of the 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            r
F 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.

G        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
H
                    SHABANA BANO v. IMRAN KHAN                        195
                        [DEEPAK VERMA, J.]
     -I   husband under Section 125 of the Cr.P.C. and, if yes, then          A
          through which forum.

              14. Section 4 of Muslim Act reads as under:

              "4. Order for payment of maintenance: -(1) Notwithstanding
              anything contained in the foregoing provisions of this Act      8
              or in any other law for t~e 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   c
              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           D
              payable by such relatives in the proportions in which they
              wo.uld inherit her property and at such periods as he may
              sp'ecify in his order:

                     Provided that where such divorced woman has
                                                                              E
              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:
                                                                              F
                    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     G
              of such relatives in the maintenance ordered by him be
              paid by 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.
                                                                              H
    196 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A              (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
B       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
c       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."
D
       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
E deals with transitional provisions.

        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       ·'
F and for matters connected therewith.

       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
G 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
H
               SHABANA SANO v. IMRAN KHAN                          197
                   [DEEPAK VERMA, J.]
..
     maintenance, including proceedings under Chapter IX of the           A
     Cr.P.C.

         19. Section 7 appearing in Chapter Ill of the Family Act
     deals with Jurisdiction. Relevant provisions thereof read as
     under:                                                               B
               "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      c
                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
                                                                          D
                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 extends.

                Explanation.- The suits and proceedings referred to       E
         in this sub-section are suits and proceedings of the
         following nature, namely:-

"i              (a) ............

                (b) ............                                          F

                (c) ............

                (d) ............

                (e) ............                                          G

                (f) a suit or proceeding for maintenance;

                (g) ............ "

         20. Section 20 of the Family Act appearing in Chapter VI         H
    198 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
                                                                                   -
A deals with overriding effect of the provisions of the Act. The said         '"
  section reads as under :

                "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
B
         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
c   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
D 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
E various provisions of the different Acts as mentioned
  hereinabove, thus, committed a grave error in rejecting the
  appellant's prayer.

       24. In our opinion, the point stands settled by judgment of        ~

F 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 rc:...,roduced
  hereinunder :
G        "30. A comparison of these provisions with Section 125
         CrPC will make it clear that requirements provided in
         Section 125 and the purpose, object a~ scope thereof
         being to prevent vagrancy by compelling those who can
         do so to support those who are unable to support
H        themselves and who have a normal and legitimate claim
-(




               SHABANA BANO v. IMRAN KHAN                        199
                   [DEEPAK VERMA, J.]
         to support are satisfied. If that is so, the argument of the   A
         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    B
         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 beingfulfilled, we find
         it difficult to accept the contention urged on behalf of the
         ~tioners.                                                      c
         31. Even under the Act, the parties agreed that the
         provisions of Section 125 CrPC would still be attracted
         and eiten otherwise, the Magistrate has been conferred with
         the power to make appropriate provision for maintenance
         and, therefore, what could be earlier granted by a             D
         Magistrate under Section 125 CrPC would now be granted
         under the ve1y 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             E
         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     F
         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,         G
         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
                                                                        H
    200 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A       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


B
        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
                                                                          -
                                                                          illlll
        and in reality codifies what was stated in Shah Bano's
        case. The learned 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
c       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."
D
        25. Judgment of this Court reported in (2007) 6 SCC 785
  titled Iqbal Bano vs. State of UP.& 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
E 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
F       to treat it as a petition under the Act considering the
        beneficial nature of the legislation. Proceedings 1~~1der
        Section 125 Cr.P.C. and claims made under the Act are
        tried by the same court. In Vijay Kumar Pra;;.dd vs. State
        of Bihar (20Q4) 5 SCC 196 it was h.:ld that proceedings
        under Section 125 Cr.P.C. are civil in nature. It was noted
G
        as follows: (SCC p.200, Para 14).

               14. The basic distinction between Section 488 of
               the old Code and Sec~ion 126 of the Code is that
               Section 126 has essentially enlarged the venue of
H              proceedings for maintenance so as to move the
           SHABANA BANO v. IMRAN KHAN                         201
               [DEEPAK VERMA, J.]
            place where the wife may be residing on the date         A
            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      B
            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         c
            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.                D

     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                E
restricted for the iddat period only.

     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 Revision.
                                                                     F

     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                G
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      H
    202     SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A 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.
B
       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
C Rs.5,000/-.

        32. Consequently, the appeal stands allowed to the extent
   indicated above.

   B.B.B.                                         Appeal allowed.