Memorial On Behalf of Petitioner of Nehru Memorial Law College National Moot Court Competition PDF

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
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
Page 2
List of Abbreviations
AIR All India Reporter

SC Supreme Court
SCC Supreme Court Cases
Raj. Rajasthan
Cr.L.J Criminal Law journal
V. Versus
Cr.P.C Criminal Procedure Code
SCR Supreme Court Report
Anr. Another
Cal. Calcutta
Edn. Edition
Para. Paragraph
U.P Uttar Pradesh
Vol. Volume
Sec. Section
All. Allahabad
Pg. Page
H.C High Court
S.C Supreme Court
ALJ Allahabad Law Journal
1986 Act Muslim Women (Protection of Rights on
Divorce) Act, 1986
M.W Muslim Women
Har. Haryana
Pun. Punjab
U.P Uttar Pradesh
Page 3
Index of Authorities
S. No. Case law Citation
1. A.A.Abdulla v. A.B. Mohmuna Saiyas Bhai AIR 1988 Guj. 141
2. Ali v. Sufaira (1998) 3 Crimes 147
3. Allar v. Pathu AIR 1988
4. Arab Ahmadhia Abdulla v. Arab Bail Mohmuna ALJ 2002(5)
Saiyadbhai
5. Bai tahira v. Ali Hasan Fassali AIR 1979 SC 362
6. Balakrishna Iyer v. Ramaswami Iyer AIR 1965 SC 195.
7. Danial Latifi vs Union of India AIR 2001
8. Dhakeswari Cotton Mills Ltd. v. CIT. AIR 1965 SC 65
9. Francis Coralie v. Union Territory of Delhi AIR 1978 SC 1675
10. Fuzlunbi v. K.Khader Ali AIR 2010 SC 1730
11. Jamshed Hormusji Wadia v. Board of Trustees, AIR 2004 SC 1815

Port of Mumbai,.
12. Khatoon Nisa v. State of UP and others 2002(6) scale 165
13. Kazran v. Abdul Rahman, AIR 2012 SC 2245
14. Kaka v. Hassan Bano another 1998(2) D.M.C. 85
15. K. Zunaideen v. Ameena Begum anr., 1998(2) D.M.C. 468

16. Khatoon Nisa v. State of UP and others 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
Books Referred
S.No. Name
1. R.V. Kelkar’s Criminal Procedure Code, 6th Edition, Eastern Book
Company (2014)
2. Sarkar’s Code of Criminal Procedure, 10th Edition, Lexis Nexis (2012)
3. S.N Mishra Code of Criminal Procedure, 17th Edition, Central Law
Agency
4. Aqil Ahmad’s Mohammedan Law, 25th Edition, Central Law Agency
5. I.A Khan’s Mohammedan Law, 14th Edition, Central Law Agency
Page 4
6. Mulla’s Personal law, 16th Edition, Allahabad Law Agency

7. M.P Jain Indian Constitutional Law, 6th Edition (2013)
Statutes Referred
S.No. Name
1. The Constitution of India,1950
2. The Criminal Procedure Code, 1973
3. MuslimWomen (Protection of Rights on Divorce) Act, 1986
Page 5
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.
Page 6
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
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.
Page 8
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?
Page 9
Summary of Arguments
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.
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
Page 10
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.
Page 11
Arguments Advanced
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.
Page 12
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.
3
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 2649 (4th ed. 2014).
4
Dhakeswari Cotton Mills Ltd. v. CIT, AIR 1965 SC 65.
Page 13
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.
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 maintain-
a) his wife, unable to maintain herself, or
5
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815.
Page 14
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
Page 15
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
Page 16
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
Page 17
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
Page 18
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
Hazran v. Abdul Rahman,AIR 2012 SC 2245
12
Fuzlunbi v. K.Khader Ali, AIR 2010 SC 1730
13
Bai tahira v. Ali Hasan Fassali ,AIR 1979 SC 362
Page 19
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
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
Ali v. Sufaira , (1998) 3 Crimes 147
15
Allar v. Pathu, 1988
16
Kaka v. Hassan Bano another 1998(2) D.M.C. 85
Page 21
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
Page 22
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
Page 23
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
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
Page 25
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
Page 26

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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

ON SUBMISSION TO THE HONOURABLE SUPREME COURT OF INDIA

MOST RESPECTFULLY SUBMITTED

COUNSELS APPEARING ON BEHALF OF FATIMA

AIR All India Reporter

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

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

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

17. Nanak Chand v. Chandra kishore AIR 1970 SC 446

6. Mulla’s Personal law, 16th Edition, Allahabad Law Agency

The Article read as:

Special leave to appeal by the Supreme Court

fell in love with Miss Ashwarya and desired to marry.

acceptable to the parents of Neyaz, as the girl being Hindu.

parents too joined hands with him to ill treat Fatima.

dowry, knowing pretty well that she is pregnant.

for dowry was still unsatisfied.

Cr.P.C in Hanumangarh Family Court on 25-12-2009, claiming maintenance of Rs.

own free will and thus deserted him since 1-8-2007.

Neyaz pronounced irrevocable Talaq on 2-3-2010 to dissolve his marriage with

Court of Rajasthan claiming maintenance beyond “iddat period”.

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

2. Whether petitioner being a Muslim divorced woman can claim maintenance

is restricted only for the period of iddat?

remedy the injustice.

2. Whether petitioner being a Muslim divorced woman can claim maintenance

which is violation of Article 14 of the Constitution.

is restricted only for the period of iddat?

not be restricted only to the iddat period.

134(A). Art. 136 of the Constitution states that

senses of the Judges” of the Court.2

Court under Art. 136.

that injustice is not perpetuated or perpetrated by decisions of Courts and tribunals

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?

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 maintain-

a) his wife, unable to maintain herself, or

injury unable to maintain itself, or

d) his father or mother, unable to maintain himself or herself,

Magistrate may from time to time direct:

possessed of sufficient means.................................................... shall cancel the order.

are tried by the same court.

expiry of iddat period 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.

social justice embodied in Article 21 of the Constitution of India

personal laws of the parties.

of her legal rights.

and liberty except in accordance with the procedure established by law”

and shelter over the head.10

vagrant and needy people.

discriminatory, un-Islamic and undermines the secular character of the constitution.

is wholly irrelevant to the application of section 125 Cr.P.C 12

discrimination and violation of Article 14 of the Constitution.

making it a secular one.