Karim Abdul Rehman Shaikh vs Shehnaz Karim Shaikh & Others on 11 July, 2000
47. We may also look into the Full Bench decision of the
Bombay High Court in the case of Karim Abdul Rehman Shaikh
(supra). We quote the relevant observations;
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1 - 10 of 24 (0.55 seconds)Danial Latifi & Anr vs Union Of India on 28 September, 2001
and "maintenance" to be made and paid to her within and post
the Iddat period by her former husband. The Supreme Court in
Danial Latifi (supra) interpreted this as two separate
obligations.
Miss Blanche Somerset Taylor vs Charles George Bleach on 7 October, 1914
69. Blanche Somerset Taylor v. Charles George Bleach, AIR
(1915) Bom. 50 was a case which had arisen under the Divorce
Act. Section 37 of the Divorce act, 1869 enabled the Court to
pass a decree for permanent alimony or for a payment of
periodical maintenance to the wife and the proviso to Section
37 enabled it to provide cancellation of decree. A question had
arisen in the context of the wife's claim that the order of
permanent alimony passed in her favour should carry interest
as may be directed by the Court during her life time so that
she can be maintained out of that. The contention was founded
on the ground that Section 37 envisaged grant of maintenance
"for any time".
Olga Tellis & Ors vs Bombay Municipal Corporation & Ors. Etc on 10 July, 1985
This Court in Olga Tellis v. Bombay Municipal
Corporation, 1985(3) SCC 545, and Maneka Gandhi v.
Union of India, 1978 (1) SCC 248, held that the concept
of right to life and personal liberty guaranteed under
Article 21 of the Constitution would include the right to
live with dignity. Before the Act, a Muslim woman who
was divorced by her husband was granted a right to
maintenance from her husband under the provisions of
Section 125 CrPC until she may re-marry and such a
right, if deprived, would not be reasonable, just and fair.
Thus the provisions of the Act depriving the divoced
Muslim women of such a right to maintenance from her
husband and providing for her maintenance to be paid by
the former husband only for the period of iddat and
thereafter to make her run from pillar to post in search of
her relatives one after the other and ultimately to knock
at the doors of the Wakf Board does not appear to be
reasonable and fair substitute of the provisions of Section
125 CrPC. Such deprivation of the divorced Muslim
women of their right to maintenance from their former
husbands under the beneficial provisions of the Code of
Criminal Procedure which are otherwise available to all
other women in India cannot be stated to have been
effected by a reasonable, right, just and fair law and, if
these provisions are less beneficial than the provisions of
Chapter IX of the Code of Criminal Procedure, a divorced
Muslim woman has obviously been unreasonably
discriminated and got out of the protection of the
provisions of the general law as indicated under the Code
which are available to Hindu, Buddhist, Jain, Parsi or
Christian women or women belonging to any other
community. The provisions prima facie, therefore, appear
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to be violative of Article 14 of the Constitution mandating
equality and equal protection of law to all persons
otherwise similarly circumstanced and also violative of
Article 15 of the Constitution which prohibits any
discrimination on the ground of religion as the Act would
obviously apply to Muslim divorced women only and
solely on the ground of their belonging to the Muslim
religion. It is well settled that on a rule of construction a
given statute will become ultra vires or unconstitutional
and, therefore, void, whereas another construction which
is permissible, the statute remains effective and
operative the court will prefer the latter on the ground
that Legislature does not intend to enact unconstitutional
laws. We think, the latter interpretation should be
accepted and, therefore, the interpretation placed by us
results in upholding the validity of the Act. It is well
settled that when by appropriate reading of an
enactment the validity of the Act can be upheld, such
interpretation is accepted by courts and not the other
way.
Mrs. Maneka Gandhi vs Union Of India (Uoi) And Anr. on 25 January, 1978
This Court in Olga Tellis v. Bombay Municipal
Corporation, 1985(3) SCC 545, and Maneka Gandhi v.
Union of India, 1978 (1) SCC 248, held that the concept
of right to life and personal liberty guaranteed under
Article 21 of the Constitution would include the right to
live with dignity. Before the Act, a Muslim woman who
was divorced by her husband was granted a right to
maintenance from her husband under the provisions of
Section 125 CrPC until she may re-marry and such a
right, if deprived, would not be reasonable, just and fair.
Thus the provisions of the Act depriving the divoced
Muslim women of such a right to maintenance from her
husband and providing for her maintenance to be paid by
the former husband only for the period of iddat and
thereafter to make her run from pillar to post in search of
her relatives one after the other and ultimately to knock
at the doors of the Wakf Board does not appear to be
reasonable and fair substitute of the provisions of Section
125 CrPC. Such deprivation of the divorced Muslim
women of their right to maintenance from their former
husbands under the beneficial provisions of the Code of
Criminal Procedure which are otherwise available to all
other women in India cannot be stated to have been
effected by a reasonable, right, just and fair law and, if
these provisions are less beneficial than the provisions of
Chapter IX of the Code of Criminal Procedure, a divorced
Muslim woman has obviously been unreasonably
discriminated and got out of the protection of the
provisions of the general law as indicated under the Code
which are available to Hindu, Buddhist, Jain, Parsi or
Christian women or women belonging to any other
community. The provisions prima facie, therefore, appear
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to be violative of Article 14 of the Constitution mandating
equality and equal protection of law to all persons
otherwise similarly circumstanced and also violative of
Article 15 of the Constitution which prohibits any
discrimination on the ground of religion as the Act would
obviously apply to Muslim divorced women only and
solely on the ground of their belonging to the Muslim
religion. It is well settled that on a rule of construction a
given statute will become ultra vires or unconstitutional
and, therefore, void, whereas another construction which
is permissible, the statute remains effective and
operative the court will prefer the latter on the ground
that Legislature does not intend to enact unconstitutional
laws. We think, the latter interpretation should be
accepted and, therefore, the interpretation placed by us
results in upholding the validity of the Act. It is well
settled that when by appropriate reading of an
enactment the validity of the Act can be upheld, such
interpretation is accepted by courts and not the other
way.
K. Zunaideen vs Ameena Begum And Anr. on 21 March, 1997
35. In Arab Ahemadhia Abdulla and etc vs. Arab Bail
Mohmuna Saiyadbhai & Ors. etc., AIR 1988 (Guj.) 141; Ali
vs. Sufaira, (1988) 3 Crimes 147; K. Kunhashed Hazi v.
Amena, 1995 Crl.L.J. 3371; K. Zunaideen v. Ameena
Begum, (1998] II DMC 468; Karim Abdul Shaik v. Shenaz
Karim Shaik, 2000 Cr.L.J. 3560 and Jaitunbi Mubarak
Shaikh v. Mubarak Fakruddin Shaikh & Anr., 1999 (3)
Mh.L.J. 694, while interpreting the provision of Sections
3(1)(a) and 4 of the Act, it is held that a divorced Muslim
woman is entitled to a fair and reasonable provision for
her future being made by her former husband which
must include maintenance for future extending beyond
the iddat period. It was held that the liability of the
former husband to make a reasonable and fair provision
under Section 3(1)(a) of the Act is not restricted only for
the period of iddat but that divorced Muslim woman is
entitled to a reasonable and fair provision for her future
being made by her former husband and also to
maintenance being paid to her for the iddat period. A lot
of emphasis was laid on the words made and paid and
were construed to mean not only to make provision for
the iddat period but also to make a reasonable and fair
provision for her future.
Smt. Jaitunbi Mubarak Shaikh vs Mubarak Fakruddin Shaikh & Another on 4 May, 1999
35. In Arab Ahemadhia Abdulla and etc vs. Arab Bail
Mohmuna Saiyadbhai & Ors. etc., AIR 1988 (Guj.) 141; Ali
vs. Sufaira, (1988) 3 Crimes 147; K. Kunhashed Hazi v.
Amena, 1995 Crl.L.J. 3371; K. Zunaideen v. Ameena
Begum, (1998] II DMC 468; Karim Abdul Shaik v. Shenaz
Karim Shaik, 2000 Cr.L.J. 3560 and Jaitunbi Mubarak
Shaikh v. Mubarak Fakruddin Shaikh & Anr., 1999 (3)
Mh.L.J. 694, while interpreting the provision of Sections
3(1)(a) and 4 of the Act, it is held that a divorced Muslim
woman is entitled to a fair and reasonable provision for
her future being made by her former husband which
must include maintenance for future extending beyond
the iddat period. It was held that the liability of the
former husband to make a reasonable and fair provision
under Section 3(1)(a) of the Act is not restricted only for
the period of iddat but that divorced Muslim woman is
entitled to a reasonable and fair provision for her future
being made by her former husband and also to
maintenance being paid to her for the iddat period. A lot
of emphasis was laid on the words made and paid and
were construed to mean not only to make provision for
the iddat period but also to make a reasonable and fair
provision for her future.
Kaka vs Hassan Bano And Anr. on 21 October, 1997
A Full Bench of the Punjab and
Haryana High Court in Kaka v. Hassan Bano & Anr., II
(1998) DMC 85 (FB), has taken the view that under
Section 3(1)(a) of the Act a divorced Muslim woman can
claim maintenance which is not restricted to iddat period.
Abdul Rashid vs Sultana Begum on 11 December, 1990
To the contrary it has been held that it is not open to the
wife to claim fair and reasonable provision for the future
in addition to what she had already received at the time
of her divorce; that the liability of the husband is limited
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for the period of iddat and thereafter if she is unable to
maintain herself, she has to approach her relative or
Wakf Board, by majority decision in Umar Khan
Bahamami v. Fathimnurisa, 1990 Cr.L.J. 1364; Abdul
Rashid v. Sultana Begum, 1992 Cr.L.J. 76; Abdul Haq v.
Yasima Talat; 1998 Cr.L.J. 3433; Md. Marahim v. Raiza
Begum, 1993 (1) DMC 60. Thus preponderance of judicial
opinion is in favour of what we have concluded in the
interpretation of Section 3 of the Act. The decisions of the
High Courts referred to herein that are contrary to our
decision stand overruled. "
Mohd. Sayeed vs Rehana Begum on 22 December, 1995
45. A Division Bench of the Allahbad High Court in the case of
Mohd Sayeed vs. Rehana Begum, 1996 (27) All. L.R., 597
was called upon to consider the question whether an
application contemplated under Section 3 of the Act, 1986
could be termed as proceedings in terms of the explanations
provided to Section 7 of the Act, 1984. The second question
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which arose before the Division Bench for consideration was
whether an application to be moved under Section 3 of the Act,
1986 before a Magistrate could be brought within the purview
of Section 7(1)(a) of the Act, 1984, i.e, the jurisdiction
exercisable by any District Court or by any Subordinate Court
under any law for the time being in force in respect of the
suits and the proceedings of the nature referred to in the
explanations. The Division Bench proceeded to answer the two
questions as under;