Memorial on Behalf of Petitioner of Nehru Memorial Law College National Moot Court Competition

Nehru law College National Moot Court Competition, 2015 BEFORE THE HONOURABLE SUPREME COURT OF INDIA

Under Article 136 of the Constitution of India Special Leave Petition No. XXX/2015

In The Matter of

Fatima.......................................................................Petitioner V. Neyaz......................................................................Respondent

ON SUBMISSION TO THE HONOURABLE SUPREME COURT OF INDIA

MOST RESPECTFULLY SUBMITTED

COUNSELS APPEARING ON BEHALF OF FATIMA Page 1

Written Submission On Behalf Of Petitioner

Nehru law College National Moot Court Competition, 2015 Table of Contents List of Abbreviations..........................................................................3 Index of Authorities............................................................................4-5 Statement of Jurisdiction.....................................................................6 Statement of Facts...............................................................................7-8 Statement of Issues..............................................................................9 Summary of Arguments......................................................................10-11 Arguments Advanced.........................................................................12-24 Issue 1.................................................................................................12-14 Issue 2.................................................................................................14-19 2.1............................................................................................14-17 2.2............................................................................................17-18 2.3............................................................................................18-19 Issue 3.................................................................................................19-24 3.1.............................................................................................19-22 3.2.............................................................................................22-23 3.2.1.....................................................................................23 3.3..............................................................................................24 Prayer........................................................................................................25

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Nehru law College National Moot Court Competition, 2015 List of Abbreviations

AIR SC SCC Raj. Cr.L.J V. Cr.P.C SCR Anr. Cal. Edn. Para. U.P Vol. Sec. All. Pg. H.C S.C ALJ 1986 Act M.W Har. Pun. U.P

All India Reporter Supreme Court Supreme Court Cases Rajasthan Criminal Law journal Versus Criminal Procedure Code Supreme Court Report Another Calcutta Edition Paragraph Uttar Pradesh Volume Section Allahabad Page High Court Supreme Court Allahabad Law Journal Muslim Women (Protection of Rights on Divorce) Act, 1986 Muslim Women Haryana Punjab Uttar Pradesh

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Nehru law College National Moot Court Competition, 2015 Index of Authorities S. No. 1. 2. 3. 4.

Citation AIR 1988 Guj. 141 (1998) 3 Crimes 147 AIR 1988 ALJ 2002(5)

5.

Case law A.A.Abdulla v. A.B. Mohmuna Saiyas Bhai Ali v. Sufaira Allar v. Pathu Arab Ahmadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai Bai tahira v. Ali Hasan Fassali

6. 7. 8. 9. 10.

Balakrishna Iyer v. Ramaswami Iyer Danial Latifi vs Union of India Dhakeswari Cotton Mills Ltd. v. CIT. Francis Coralie v. Union Territory of Delhi Fuzlunbi v. K.Khader Ali

AIR 1965 SC 195. AIR 2001 AIR 1965 SC 65 AIR 1978 SC 1675 AIR 2010 SC 1730

11. 12. 13.

Jamshed Hormusji Wadia v. Board of Trustees, AIR 2004 SC 1815 Port of Mumbai,. Khatoon Nisa v. State of UP and others 2002(6) scale 165 AIR 2012 SC 2245 Kazran v. Abdul Rahman,

14.

Kaka v. Hassan Bano another

1998(2) D.M.C. 85

15. 16.

K. Zunaideen v. Ameena Begum anr., Khatoon Nisa v. State of UP and others

1998(2) D.M.C. 468 1998(2) D.M.C. 468

17.

Nanak Chand v. Chandra kishore

AIR 1970 SC 446

18.

Mohd. Ahmed khan v. Shah Bano Begum

1985 Cr.L.J. 875 SC

AIR 1979 SC 362

Books Referred S.No. 1. 2. 3. 4. 5.

Name R.V. Kelkar’s Criminal Procedure Code, 6th Edition, Eastern Book Company (2014) Sarkar’s Code of Criminal Procedure, 10th Edition, Lexis Nexis (2012) S.N Mishra Code of Criminal Procedure, 17th Edition, Central Law Agency Aqil Ahmad’s Mohammedan Law, 25th Edition, Central Law Agency I.A Khan’s Mohammedan Law, 14th Edition, Central Law Agency Page 4


Nehru law College National Moot Court Competition, 2015 6. 7.

Mulla’s Personal law, 16th Edition, Allahabad Law Agency M.P Jain Indian Constitutional Law, 6th Edition (2013) Statutes Referred

S.No. 1. 2. 3.

Name The Constitution of India,1950 The Criminal Procedure Code, 1973 MuslimWomen (Protection of Rights on Divorce) Act, 1986

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Nehru law College National Moot Court Competition, 2015

STATEMENT OF JURISDICTION The Petitioner humbly submits to Hon’ble Supreme Court of India and that the court is empowered to hear this case by the virtue of Art. 136 of the Constitution of India, 1950. The Article read as: Special leave to appeal by the Supreme Court (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

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Nehru law College National Moot Court Competition, 2015 Statement of Facts 1. That Mr. Neyaz, working as a clerk in a commercial bank in hanumangarh , Rajasthan fell in love with Miss Ashwarya and desired to marry. 2. That in order to solemnize the marriage with Neyaz, Ashwarya converted herself to Islam and changed her name to Fatima, as the proposal of marriage was not acceptable to the parents of Neyaz, as the girl being Hindu. 3. That their marriage was solemnized as per Muslim personal law on 2-1-2007. 4. That after marriage, Mr. Neyaz began to ill treat her for demand of dowry and his parents too joined hands with him to ill treat Fatima. 5. That finally, Mr. Neyaz on 1-8-2007 left Fatima at her Parents home for want of dowry, knowing pretty well that she is pregnant. 6. That on 15-2-2008, Fatima gave birth to a female child and the fact was communicated to Neyaz but he refused to receive the child and Fatima as his desire for dowry was still unsatisfied. 7. Fatima filed a petition for maintenance to herself and her child under Section 125 Cr.P.C in Hanumangarh Family Court on 25-12-2009, claiming maintenance of Rs. 15,000/- per month as her husband as he is earning a salary of Rs. 30,000/- per month. 8. That the respondent denied all the allegations and asserted that she is living on her own free will and thus deserted him since 1-8-2007. 9. That while the petition of maintenance was pendingbefore the family court, Mr. Neyaz pronounced irrevocable Talaq on 2-3-2010 to dissolve his marriage with Fatima. 10. Mr. Neyaz contended that under the provisions of Muslim Women Act, 1986, he is no more liable to pay any maintenance to Fatima and her child after talaq. Page 7


Nehru law College National Moot Court Competition, 2015 11. That the family court directed the respondent to pay Rs. 9,000/- per month for maintenance to Fatima and her child from the date of petition till the completion of “iddat period”. 12. Aggrieved by the decision of the family court, Fatima preferred an appeal to the High Court of Rajasthan claiming maintenance beyond “iddat period”. 13. That the High Court of Rajasthan also confirmed the decision of the High Court. 14. That Fatima preferred an appeal to the Supreme Court with Special Leave of the apex

Court, challenging the decision of the High Court of Rajasthan.

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Nehru law College National Moot Court Competition, 2015 Statement of Issues

1. Whether the Special Leave Petition sought under Art. 136 is maintainable? 2. Whether petitioner being a Muslim divorced woman can claim maintenance under section 125 of Criminal Procedure Code, 1973 from her husband? 3. Whether the maintenance contemplated under Section 3(1)(a) of the Act of 1986 is restricted only for the period of iddat?

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Nehru law College National Moot Court Competition, 2015 Summary of Arguments

1. Whether the Special Leave Petition sought under Art. 136 is maintainable? It is humbly submitted by the Petitioner that the Hon’ble Supreme Court has the power to grant special leave under Art.136 of the Constitution of India and the petition filed by the petitioner is maintainable. The discretionary power of the Court has to be used to remedy instances of grave injustice and in cases where miscarriage of justice has taken place. The only limit upon the Hon’ble Court as regards the power of the Court under Art.136 is the “wisdom and good senses of the Judges” of the Court. It is the duty of this Court to see that injustice is not perpetuated or perpetrated by decisions of Courts. In the present case, grave injustice has been done to the petitioner which requires the apex court’s special power to remedy the injustice. 2. Whether petitioner being a Muslim divorced woman can claim maintenance under section 125 of Criminal Procedure Code, 1973 from her husband? It is most humbly submitted before this honourable court that the petitioner is entitled to claim maintenance under section 125 CrPC for it is a general law applicable to all irrespective of any religion enacted to provide speedy and effective remedy, to needy and vagrant people who are left on the mercy of Almighty without having any means for their survival. Section 125 being civil nature is purposely kept in this code to provide strict compliance to the rights of women and for their welfare and to protect the interests of divorced women who is left at the mercy of the husband. The apex court in its plethora of judgements has reiterated this aspect that the Muslim women is equally entitled to claim

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Nehru law College National Moot Court Competition, 2015 maintenance under Section 125 of Cr.P.C and disentitling her will amount to discrimination which is violation of Article 14 of the Constitution. 3. Whether the maintenance contemplated under Section 3(1)(a) of the Act of 1986 is restricted only for the period of iddat? It is most humbly submitted before this honourable court that the wife is entitled for maintenance beyond iddat period also as the word “within iddat period” used in section 3(1)(a) of the Act of 1986 means that husband has to pay for all future expenses and a fair and reasonable claim within the period of iddat and not that his liability is for the iddat period only. The words “Within iddat period” is purposely kept in the code to ensure speedy and effective claim for the divorced wife who has no other means for her survival but maintenance. The claim of maintenance by a divorced Muslim Wife necessarily need not be restricted only to the iddat period.

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Nehru law College National Moot Court Competition, 2015 Arguments Advanced 1. Whether the Special Leave Petition sought under Art. 136 is maintainable? It is humbly submitted by the Petitioner that the Hon’ble Supreme Court has the power to grant special leave under Art.136 of the Constitution of India. The SLP sought under the said Art. is certainly maintainable. The opening non-obstante clause of the Art. clearly establishes that the power of this Court remains unaffected by Arts. 132, 133, 134 and 134(A). Art. 136 of the Constitution states that “Notwithstanding anything in this chapter, the Supreme Court may in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.” Under Art.136 (1), the Supreme Court is empowered to hear appeal from any judgment, decree, determination, sentence or order of any tribunal. This feature of the Art. is of great importance. The Supreme Court may hear appeal even in cases where ordinary law related to the particular issue makes no provision for such an appeal. The Court may also hear appeal even where the Legislature declares the decision of a court or Tribunal as final.1The Supreme Court heard an appeal from an order of the Railway Rates Tribunal, Madras, in spite of Sec. 46 A of the Railways Act, 1890 which lays down that the decision of the tribunal shall be final. The residuary power vested in the Court under the Art. is nonetheless discretionary in nature and the Court is required to use that power only sparingly and with caution. However, the discretionary power of the Court stands totally

1

Raigarh Jute Mills v. Eastern Rly. AIR 1958 SC 525.

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Nehru law College National Moot Court Competition, 2015 unqualified by any impediment and has to be used to remedy instances of grave injustice and in cases where miscarriage of justice has taken place. The only limit upon the Hon’ble Court as regards the power of the Court under Art.136 is the “wisdom and good senses of the Judges” of the Court.2 In the instant case, grave injustice has been done to the Petitioner. The Petitioner humbly submits that the Hon’ble High Court of Judicature at Rajasthan has erred in its judgement and has decided against the provisions of law, thereby depriving the petitioner of her legal and mandatory rights which has lead to grave injustice to her. There is no dispute in the maintenance rights of Muslim women as the law and judicial pronouncements are well established and the high court has not followed the law declared by hon’ble Supreme court under Article 141 of the constitution of India which is binding on it.

Thus, the

Petitioner stand aggrieved by the impugned judgement and seeks remedy from the apex Court under Art. 136. The Hon’ble Court has rightly declined to fetter its discretionary powers under Art. 136 by laying down “principles” and “rules” to govern the same. 3 The Court further observed that “….the whole intent and purpose of this Art. is that it is the duty of this Court to see that injustice is not perpetuated or perpetrated by decisions of Courts and tribunals because certain laws have made the decisions of these Courts or tribunals final and conclusive”.4 Despite earlier pronouncements that the jurisdiction under Art. 136 should be utilized for determining only substantial questions of law and not redeeming injustice in individual cases, the power has been utilized increasingly to determine

2

Balakrishna Iyer v. Ramaswami Iyer, AIR 1965 SC 195. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 2649 (4th ed. 2014). 4 Dhakeswari Cotton Mills Ltd. v. CIT, AIR 1965 SC 65. 3

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Nehru law College National Moot Court Competition, 2015 individual controversies because a case has “failed to receive the needed care, attention and approach…and the conscience of this Court pricks it or its heart bleeds for imparting justice or undoing injustice”.5 The case of the Petitioner clearly falls within the category of cases, which need the immediate attention of this apex Court and hence the SLP sought is maintainable in order to undo the injustice done to the Petitioner by the Hon’ble High Court.

2. Whether petitioner being a Muslim divorced woman can claim maintenance under section 125 of Criminal Procedure Code,1973 from her husband? It is most humbly submitted before this honourable court that the petitioner is entitled to claim maintenance under section 125 CrPC for it is a general law applicable to all irrespective of any religion enacted to provide speedy and effective remedy, to needy and vagrant people who are left on the mercy of Almighty without having any means for their survival 2.1 Equality and public policy demands that section 125 is applicable to all persons irrespective of their religion. Section 125 of crpc reads as: 125. Order for maintenance of wives, children and parents. 1. If any person having sufficient means neglects or refuses to maintaina) his wife, unable to maintain herself, or

5

Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815.

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Nehru law College National Moot Court Competition, 2015 b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.................................................... shall cancel the order. Cr.P.C is a codified law which is equally applicable to all the people of this country and makes no discrimination on grounds of religion, race, caste, creed or colour.

Section 125

being civil nature is purposely kept in this code to provide strict compliance to the rights of women and for their welfare and to protect the interests of divorced women who is left at the mercy of the husband. The apex court in its plethora of judgements has reiterated this aspect. The provisions of chapter 9 of crpc apply whatever may be the personal law by which the parties are governed.6 Section 125 is applicable to all irrespective of any religion. 7A

6

Nanak Chand v. Chandra kishore AIR 1970 SC 446

7

Mohd. Ahmed khan v. Shah Bano Begum 1985 Cr.L.J. 875 SC

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Nehru law College National Moot Court Competition, 2015 magistrate is entitled to invoke his jurisdiction under Section 125 of the Code of Criminal Procedure (Cr. P.C.) to grant maintenance in favour of divorced Muslim women without limiting itself to the condition precedent specified in Section 5 of the Act of 1986.8 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. This obligation of the husband is codified under section 125 of the code to provide maintenance to her till she remarries. The order of maintenance under section 125, CrPC is not affected by coming into force of the act of 1986.This was held primarily on the basis that there is no provision in the Act of 1986 to the effect that “notwithstanding anything contained in sections 125 to 128 of the code, maintenance of Muslim women shall be governed by the provisions of the Act of 1986.”The provisions of sections 125-128 have been superseded only to the extent that there is a provision in the Act of 1986 on matters covered under chapter 9 of the code. The proceedings under section 125 CrPC are civil in nature. Even if the court notices that there was a divorced Muslim women who had made application under section 125 , it was open for the court to treat same as a petition under 1986 Act considering the beneficial nature of legislations , especially since proceedings under 125Cr.P.C and claims made under Muslim women Act are tried by the same court. The apex court reiterated that section 125 of Cr.P.C would be applicable to a divorced Muslim woman for the purpose of claiming maintenance against her husband even after the expiry of iddat period as long as she does not re-marry. 8

Khatoon Nisa v. State of UP and others 2002(6) scale 165

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Nehru law College National Moot Court Competition, 2015 The purpose ,object and scope of section 125 is to prevent vagrancy by compelling those who can support to those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied9. In the light of aforesaid discussion the court held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her former husband under section 125 of the Cr.P.C, as long as she does not re-marry as it is a general law commonly applicable to all without any discrimination to divorced Muslim women and is a rule of equity and justice. 2.2 Section 125 Cr.P.C is a beneficial piece of legislation which furthers the concept of social justice embodied in Article 21 of the Constitution of India Section 125-128 provide for a speedy, effective and rather inexpensive remedy against persons who neglect or refuses to maintain their dependants. Though the subject matter of these provisions is civil in nature , the primary justification for their inclusion in the Criminal Procedure Code is that a remedy more speedy and economical that that available in civil courts is provided for by these sections for the needy of needy persons. The provisions contained in sections 125-128 are applicable to all religions and have no relationship with the personal laws of the parties. In the present case the husband has sufficient means to maintain his wife but has intentionally neglected and refused to maintain his wife and forced her to live in destitution and in poverty. His demand for dowry, cruelty on his part, throwing the petitioner out of the house and finally even when his child was born, neglect on his part clearly shows his ill behaviour and intention that how he has neglected his legally wedded wife and depriving her of her legal rights.

9

Aqil Ahmad, Mohammedan Law, 25th Edition , Central Law Agency

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Nehru law College National Moot Court Competition, 2015 The term maintenance means proper maintenance and it should not be narrowly interpreted. In the present case only Rs 9,000 p.m is given to the petitioner only till the completion of iddat period which is no way near around fair, just and reasonable claim. The burden is on the husband to prove the refusal to live with the wife, which is not proved and false allegations have been made on the wife just to avoid his liability and obligations to maintain his wife. Article 21 of the Constitution of India provides that “No person shall be deprived of his life and liberty except in accordance with the procedure established by law” Depriving the petitioner of her legal claim of maintenance which is the sole basis on which she is fully dependant to live will ultimately deprive her of her Right to life. Petitioner being from a very poor and indigent family has no other means to fulfil even the basic needs of her life but a burden on her parents, cannot live her life. Maintenance is the only means and hope for her survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head.10 Thus section 125 of the code facilitates the concept of article 21 and provides remedy to the vagrant and needy people.

2.3 Excluding divorced Muslim women from the protection of section 125 is discriminatory, un-Islamic and undermines the secular character of the constitution. Islam is the religions which had placed women and their rights on such a high footing that respect and dignity flows from them. Innumerable rights have been conferred upon them. No personal law of any religion can undermine the rights of women, of which she is legally and morally entitled and in Islam, the assurance is greatest. The Act of 1986 provides for a 10

Francis Coralie v. Union Territory of Delhi, AIR 1978 SC 1675

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Nehru law College National Moot Court Competition, 2015 parallel remedy in accordance with the personal law but it does not take way the right of a Muslim divorced women to claim maintenance under section 125 of the code. It is enacted as a privilege for the Muslim women to claim her right under the Act but in no way deprives her to claim maintenance under 125.The effect of section 5 of the Act of 1986 has been nullified by various decisions of the apex court as well as high courts where it is clearly held that the 1986 Act does not prevent the women from filing a petition under 125.The order of maintenance under section 125, Criminal Procedure Code is not affected by coming into force of the Act of 198611. Whether the spouses are Hindus, Muslims, Christians or Parsis , is wholly irrelevant to the application of section 125 Cr.P.C 12 If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance either under Muslim law or under section 125 of the code.13 Depriving only divorced Muslim women from the protection of section 125 will amount to discrimination and violation of Article 14 of the Constitution. India being a secular country treats all religion and its people equal in the eyes of law and no one is above or exempt from law. Criminal procedure code is a codified law which is equally applicable to all. Exempting a particular religion from its protection will undermine the secular character which is the basic tenant and feature of our Constitution and country making it a secular one.

11 12 13

Hazran v. Abdul Rahman,AIR 2012 SC 2245

Fuzlunbi v. K.Khader Ali, AIR 2010 SC 1730 Bai tahira v. Ali Hasan Fassali ,AIR 1979 SC 362

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Nehru law College National Moot Court Competition, 2015 3. Whether the maintenance contemplated under Section 3(1)(a) of the Act of 1986 is restricted only for the period of iddat? It is most humbly submitted before this honourable court that the wife is entitled for maintenance beyond iddat period also as the word “within iddat period” used in section 3(1)(a) of the Act of 1986 means that husband has to pay for all future expenses and a fair and reasonable claim within the period of iddat and not that his liability is for the iddat period only. This is proved in the further arguments that how Supreme court and high courts have favoured the right of maintenance of wife entitling her to claim it beyond iddat period also if she is unable to maintain herself or her minor child.

3.1 Language of Section 3(1)(a) of the Act clearly proves the intention of the legislature. Section 3(1)(a) of the 1986 Act provides that “a reasonable and fair provision and maintenance to be made and paid to divorced wife within the iddat period by her former husband”. There is no ambiguity in the language of the Section which simply states that the husband has to provide for all reasonable and fair claims for the maintenance of wife within the iddat period keeping in mind her future needs. He has to provide maintenance within the period of iddat which must be fair and just for the dignified survival of woman. If he fails or neglects to provide, then it does not mean that he is exempted from his liability as soon as the iddat period ceases. The liability of the husband is beyond iddat period also, to ensure that his former wife is not living in destitution and vagrancy. The words “Within iddat period” is purposely kept in the code to ensure speedy and effective claim for the divorced wife who has no other means for her survival but maintenance. What is important is that the wife should get fair and reasonable claim for her maintenance whether within iddat period or after that. Welfare and interest of women is more important than focussing on iddat period. Page 20


Nehru law College National Moot Court Competition, 2015 Ultimately it is the maintenance which is to be seen and not the period. Primacy is given to provide maintenance within iddat period but if it is not fair and just then, the husband will have to provide after the iddat period also. Under Section 3(1)(a) of the Act of 1986 a divorced Muslim woman is not only entitled to maintenance for the period of iddat but also to a reasonable and fair provision for her future14. “It is clear that the Muslim who believes in God must give a reasonable amount by way of gift or maintenance to the divorced lady. That gift or maintenance is not limited to the period of iddat it is for her future livelihood because the God wishes to see all well” The Hon’ble Kerela High Court held under Section 3 of 1986 Act, former husband is liable for the payment of maintenance for the Iddat period and to make reasonable and fair provision for the post-Iddat period.15 It was held that the provisions of Act of 1986 do not divest the party vested with determined rights and benefits under section 125 of the Code. The claim of maintenance by a divorced Muslim Wife necessarily need not be restricted only to the iddat period. The husband will have to show that within the iddat period, he has provided, made and paid reasonable and fair provision and maintenance to the wife which is an adequate provision for her life or till she remarries.16The learned Single Judge of Gujarat High Court held that a divorced Muslim women is entitled to maintenance after contemplating her future needs and the maintenance is not limited only upto iddat period. He further held that Act of 1986 does not take away rights which a divorced Muslim woman has either under the personal law or under general law i.e. section 125 to section 128 of the Code. He also ruled that orders passed by the Magistrate under section 125 of the Code are not nullified on coming into force of the Muslim Women 14 15

Ali v. Sufaira , (1998) 3 Crimes 147 Allar v. Pathu, 1988

16

Kaka v. Hassan Bano another 1998(2) D.M.C. 85

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Nehru law College National Moot Court Competition, 2015 Act.17 The Division Bench of Madras High Court has held that section 3 of the Muslim Women Act has to be given a broader interpretation considering the object of the Act. Maintenance is not limited to iddat period and future livelihood of the women has to be taken into consideration.18Justice Ranjana Desai furthered the beneficial purpose of law by expansively interpreting the Muslim personal laws rather than suppressing or modifying the same. In para 25 the Court observed, “We must therefore so read the meaning of a statute as to advance its purpose and suppress the mischief according to the design of the statute. We must also not be oblivious of the fact that before us is a piece of beneficial legislation and we shall lean in favour of the beneficiaries to help them to get the maximum which this legislation purports to give them. We would be wary of overriding the personal law of Muslims, but we shall within its framework and without doing any violence to it reconcile it with the provisions of the Code if legally permissible. We shall also keep in mind the fact that our Constitution strives to preserve and enhance the dignity of women and therefore laws will have to be interpreted as far as practicable, possible and permissible with that end in view.”19 3.2 Provision and maintenance are co-related and must not be read in isolation The SC held that the word 'provision' indicates that something is provided in advance for meeting some needs. The Muslim Husband, while giving talaq (divorce) to his

17

Arab Ahmadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai

18

K. Zunaideen v. Ameena Begum anr., 1998(2) D.M.C. 468

19

Karim Abdul Rehman Shaikh   Vs.  Shehnaz Karim Shaikh others (Full Bench) 2000(5) BomCR758,

2000(102(3) BOMLR105

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Nehru law College National Moot Court Competition, 2015 wife is required plan and provide for the future needs of his wife and make advanced preparations for meeting the same. The Hon’ble Court meticulously explained and detailed what could be the components of ‘Reasonable and fair provision’ that must be provided to Muslim wives. An inclusive meaning to a woman’s residence, food, clothing and other articles was given which she is entitled to as a right. The Hon’ble Court purposefully gave meaning to the word “within” which could have no other meaning but 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 a 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 no where the Parliament has 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. (Referred para 27 of the judgement). The decision in Daniel Latifi clearly laid down the liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance, is not confined to iddat period and emphasized that the powers of court under Section 125 cannot be constricted by scope and ambits of section 5 of the Act of 1986.20 3.2.1 Reasonable and fair provision What is to be given to wife should not only be maintenance or provision made for her but a reasonable and fair one. For a divorced woman maintenance should be provided on a reasonable scale. This is the duty on the righteous. In order to avoid any

20

Danial Latifi vs Union of India, 2001

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Nehru law College National Moot Court Competition, 2015 confusion, the legislature has provided that a fair and reasonable provision and maintenance should be paid to the wife within the iddat period. It cannot be said that there is a difference between provision and maintenance and that while maintenance may be payable only for the period of iddat the liability to make fair and reasonable provision for the wife may extend beyond the iddat period as well. The above interpretation cannot sustain in the light of principles of Muslim law and under the provisions of the Act of 1986. The phrase used in Section 3(1)(a) indicates that the parliament intended to see that the divorced woman gets sufficient means of livelihood after the divorce and that she does not become destituted or is not thrown out on the streets without a roof over her head and without any means of sustaining herself. Thus it is clearly evident and established that the spirit and object of the Act is in consonance with the spirit of Islam and Constitution and various judicial pronouncements suffices the divorced Muslim wife’s right to claim maintenance beyond iddat period. In the present case the wife is not able to maintain herself and also her minor child as the maintenance ordered is unreasonable and unfair. Therefore a fair and just provision should be made for her and her child beyond the iddat period. 3.3 Religious texts of maintenance of Muslim Women Evidences their Right On perusal of Commentary on the Holy Quran relied on the texts from the Ayats, Ayat 241 states: “For divorced women maintenance should be provided on a reasonable scale. This is a duty on the righteous.” Ayat 242 provides: Thus doth God makes clear his signs to you; in order that they must understand. The court after perusing verses from the Holy Quran observed “From this, it is clear that the Muslim husband who Page 24


Nehru law College National Moot Court Competition, 2015 divorces a lady must be very liberal to the woman and should provide substantially for her future. The hon’ble High Court on reading the translated paragraphs from the Holy Quran that the Muslim who believes in God must give a reasonable amount by way of gift or maintenance to the divorced lady. That gift or maintenance is not limited to the period of iddat. It is for her future livelihood because – God wishes to see all well. The liability is cast upon the husband on account of the past advantage received by him by reason of relationship with the divorced woman or on account of the past disadvantage suffered by her by reason of matrimonial consortium is a solatium to sustain the woman for her life after divorce. In accordance with the principles of Islamic equity, the said provision or support from the husband is wife’s right. This right have been given legislative recognition in the above referred provision. The judiciary have acted as a watchdog of Constitutional rights and values every time the legislature has overstepped to uphold the populist understanding of what should be done and not done. Thus the divorced Muslim woman is entitled to maintenance after contemplating her future needs and the maintenance is not limited only till the iddat period.21

21

A.A.Abdulla v. A.B. Mohmuna Saiyas Bhai, AIR 1988 Guj. 141

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Nehru law College National Moot Court Competition, 2015 Prayer Wherefore in the light of aforesaid facts, issues raised, arguments advanced and authorities cited, it is most humbly prayed that this Honourable Court may graciously be pleased to: 1. Entitle the Petitioner to get maintenance for her and her child, beyond iddat period. 2.

Direct the respondent to abstain from doing, further, any act of cruelty or harassment to the petitioner. Or grant such other relief as the Court may deem fit in the light of justice, equity and good conscience. And For This Act Of Kindness The Petitioner Shall Duty Bound Ever Pray.

COUNSEL(S) FOR THE PETITIONER

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Memorial on Behalf of Petitioner of Nehru Memorial Law College National Moot Court Competition

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