SHAMIM SANO versus ASRAF KHAN

Citation: [2014] 4 S.C.R. 844 · Decided: 16-04-2014 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2014] 4 S.C.R 844 
SHAMIM SANO 
v 
ASRAF KHAN 
(Criminal Appeal No. 820 of 2014) 
APRIL 16, 2014 
[DIPAK MISRA AND VIKRAMAJIT SEN, JJ.] 
CODE OF CRIMINAL PROCEDURE, 1973: 
c 
s.125 ·Claim of maintenance by a Muslim woman, who 
during the pendency of application was divorced - Held: 
Application u/s 125 was prior to date of divorce and hearing 
of application continued • Husband contested the same 
without raising the plea of consent - Even if an application ul 
0 s 3 of Muslim Women (Protection of Rights on Divorce) Act 
for grant of maintenance was filed, parameters of s. 125 CrPC 
would have been made applicable, as Magistrate still retains 
the power of granting maintenance to a divorced Muslim wife 
uls 125 CrPC - Besides, when a marriage breaks up, the wife 
E suffers - It is law's duty to recompense and primary obligation 
is that of husband - Matter remitted to Magistrate for re-
adjudication of controversy in question keeping in view the 
principles stated in the judgment - Muslim Women (Protection 
of Rights on Divorce) Act, 1986 - ss. 3 and 4. 
F 
In the instant appeal filed by a Muslim wife who was 
divorced during the pendency of her application u/s 125 
CrPC, the questions for consideration before the Court 
were: (i) whether the appellant's application for grant of 
maintenance u/s 125 of the Code of Criminal Procedure, 
G 1973 was to be restricted to the date of divorce and, 
because of filing of an application u/s. 3 of the Muslim 
Women (Protection of Rights on Divorce) Act, 1986 after 
the divorce for grant of mahr and return of gifts would 
disentitle the appellant to sustain the application uls. 125 
H 
844 
SHAMIM BANO v. ASRAF KHAN 
845 
of the Code; and whether regard being had to the fact 
A 
situation, the consent u/s. 5 of the Act was an imperative 
to maintain the application. 
Allowing the appeal, the Court 
HELD: 1.1 In Khatoon Nisa*, this Court has held that 
B 
even an application has been filed under the provisions 
of the Muslim Women (Protection of Rights on Divorce) 
Act, 1986, the Magistrate under the Act has the power to 
grant maintenance in favour of a divorced Muslim woman 
and the parameters and the considerations are the same 
C 
as stipulated in s. 125 of the Code. Thus, the emphasis 
is on the retention of the power by the Magistrate u/s 125 
of the Code and the effect of ultimate consequence. [para 
13] [855-C-D, F] 
*Khatoon Nisa v. State of U.P. and Ors. 2002 (6) SCALE 
165 - relied on. 
Shabana Bano vs. lmran Khan 2009 (16) SCR 190 = 
2010 (1) sec 666 - referred to. 
1.2 In the instant case, the High Court has erred in 
holding that as the appellant had already taken recourse 
D 
E 
to s. 3 of the Act after divorce took place and obtained 
relief which has been upheld by the High Court, the 
application for grant of maintenance u/s. 125 of the Code 
F 
would only be maintainable till she was divorced. It may 
be noted that during the pendency of her application u/ 
s. 125 of the Code, the divorce took place. The wife 
preferred an application u/s. 3 of the Act for grant of mahr 
and return of articles. The Magistrate directed for return 
G 
of the articles, payment of quantum of mahr and also 
thought it appropriate to grant maintenance for the iddat 
period. Thus, in effect, no maintenance had been granted 
to the wife beyond the iddat period by the Magistrate as 
the petition was different, which was not filed for grant 
H 
846 
SUPREME COURT REPORTS 
[2014] 4 S.C.R. 
A of maintenance. That apart, the authoritative 
interpretation in Danial Latifi was not available. (Para 15] 
(856-8-E] 
Danial Latifi and another v. Union of India 2001 (3) 
8 Suppl. SCR 419 = 2001 (7) sec 740 - referred to. 
1.3 In any case, it would be travesty of justice if the 
appellant would be made remediless. Her application u/ 
s. 125 of the Code was continuing. The husband 
contested the same on merits without raising the plea of 
C absence of consent. Even if an application u/s. 3 of the 
Act for grant of maintenance was filed, the parameters of 
s. 125 of the Code would have been made applicable. 
Quite apart from that, the application for grant of 
maintenance was filed prior to the date of divorce and 
D hearing of the application continued. Another aspect 
which has to be kept in mind is that 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 r.equisites for 

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