The Secretary, Tamil Nadu Wakf Board and others vs Syed Fatima Nochi

Pratap Singh, J.—The respondents in M.C. No. 11 of 1992 on the file of the Judicial Magistrate, Tiruchendur have filed this petition u/s 482

of the Criminal P.C. to call for the records in the above case and quash the same.

Short facts are : The respondent has filed a petition against the petitioners u/s 4(2) of the Muslim Women (Protection Rights on Divorce) Act,

1986 (hereinafter referred to as the ''Act'') praying for maintenance at the rate of Rs. 750/- per month. The allegations in that petition are briefly as

follows:- The petitioner and Syed Ahmed Moulana got married on 10-6-1980, according to Muslim Law. Out of lawful wedlock, the petitioner

gave birth to two female children, twins, on 6-4-1981. On 12-6-1986; the petitioner''s husband pronounced ''Talak''. After ''Talak'', the petitioner

has not re-married anybody. The petitioner has got no income and no means to maintain her female children. According to Mohammedan Law, her

two children are the heirs for his properties. They did not get any property as heirs. Formerly, the petitioner was leading a good life. Now she is

finding it very difficult to run the family and is suffering a lot. As per Mohammedan Law, a Muslim woman in such circumstances, can get

maintenance from the heirs and in case they were not able to provide maintenance, she can claim maintenance from the parents and in case, they

are not able to provide maintenance, they can claim maintenance from the Wakf Board. The heirs and the parents are not in a position to provide

maintenance and hence, it is the duty of the Wakf Board to provide maintenance. The first respondent is the Secretary of the Wakf Board. The

second respondent is the Superintendent working under the first respondent at Timnelveli. The Wakf Board has got the necessary means to pay

maintenance. The petitioner and her two children require Rs. 750/- towards maintenance. Hence, the petition.

Mr. Haja Nazirudeen learned counsel appearing for the petitioners, would submit that (i) an order under S. 4(1) of the Act is a pre-requisite for

entertaining a petition under S. 4(2) of the Act; (ii) that the Ministry of Welfare (Wakfs'' Section) Government of India, had written a letter to the

Secretary, Tamil Nadu Wakf Board, Madras-4 that no separate fund is to be created for the demands of maintenance to the divorced Muslim

women and that no guidelines are to be issued to the Wakf Board in this behalf and in view of that letter, this petition cannot be maintained.

I have heard Mr. Hameed Ismail, learned counsel appearing for the respondent, on the above aspects.

I have carefully considered the submissions made by the learned counsel. I shall first take up the first submission made by Mr. Haja Naziruddin.

For considering the submission, Section 4, of the Act needs extraction. It is as follows:--

Section 4. Order for payment of maintenance:-- (1) Notwithstanding anything contained in the foregoing provisions of this Act in any other law for

the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat

period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to

pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the

standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the

proportions in which they would inherit her property and at such periods as he may specify in his order:--

Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event

of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to

her:

Provided further that if any of the parents is unable to pay his or her share of the maintenance order by the Magistrate on the the ground of his or

her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such

relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the

same in such proportions as the Magistrate may think fit to order.

(2) Where divorced woman is unable to maintain herself and she has no relatives or any one of them have not enough means to pay the

maintenance ordered by the Magistrate or the other relatives have not the means to pay the share of those relatives whose shares have been

ordered by the Magistrate to be paid by such other relatives under the proviso to sub-section (1), the Magistrate may, by order, direct the State of

Wakf Board established u/s 9 of the Wakf Act, 1954 (29 of 1954), or under any other law for the time being in force in a State, functioning in the

area in which the woman resides, to pay such maintenance as determined, by him under sub-section (1) or, as the case may be, to pay the shares

of such of the relatives who are unable to pay, at such periods as he may specify in his order"".

On a plain reading of Ss. 4(1) and 4(2) of the Act, it would be apparent that a claim under S. 4(2) of the Act can be made, in case maintenance

cannot be obtained by resorting to Section 4(1) of the Act. At the same time, it is also clear that no separate proceedings need be taken u/s 4(1) of

the Act so as to get an order u/s 4(1) of the Act and only proceed with a petition u/s 4(2) of the Act. When circumstances are available to show

that maintenance cannot be obtained by resorting to Section 4(1) of the Act, the petitioner can straightway file a petition u/s 4(2) of the Act. In this

petition, in paragraph 8, necessary allegations are made to the effect that she could not get any maintenance by resorting to Section 4(1) of the Act.

While so, the Court below is perfectly in order in entertaining this petition u/s 4(2) of the Act. The submission that the petitioners should resort to

Section 4(1) of the Act or that an order should be passed u/s 4(1) of the Act and it is a sine qua non for filing a petition u/s 4(2) of the Act is not

tenable. Hence, submission No. (i) fails.

Regarding submission No. (ii) it is needless for me to state that a letter from the Ministry of Welfare (Wakf Section) Government of India dated

9-2-1988 cannot have any overriding effect of a statutory provision which enables the divorced Muslim women to get maintenance under the

provisions of the Act. That apart, this letter has got no relevancy so far as the question of maintainability of the petition is concerned. Hence,

submission No. (ii) also fails.

In the result, the petition fails and shall stand dismissed.

Petition dismissed.