LexTHE SECRETARY, TAMIL NADU WAKF BOARD AND ANR. versus SYED FATIMA NACHI
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THE SECRETARY, TAMIL NADU WAKF BOARD AND ANR. A v. SYED FATIMA NACHI JULY, 9, 1996 [M.M. PUNCHHI AND SUJATA V. MANOHAR, JJ.] Muslim Law : Muslim Women (Protection of Rights on Divorce) Act, 1986: Section 4--Divorced Muslim Woman-Unable to maintain herself and not remarriecf---Provision of maintenance--Liability of State W-akf Boarcf---He/d : Such divorced women not required to file petition in the first ·instance against her chilf!ren, parents and relatives who had no nieans to pay B c her niaintenance in order to obtain negative orders to 111ove against State Wakf Boarcf---She would be entitled to direct her claim against the Stare Wakf D Board in the first instance and in that proceeding she could plead and prove inability of her relatives in maintaining hei-lf the State WaAf Board co11- trove1ted that her relatives had Che means to pay maintenance they could be added as parties to the litigation. Section 4( I )--Divorced Muslim IYoman,--Payment of mai11te11ance- Liabi/ity of her heirs-Held : did not depend 011 the contingency that the divorced woman had property which they would i11he1it-Fictionally, it is deemed that she would have held property and would have died 011 the date when need for identification arose. E F The respondent was a Muslim divorced wife. She filed a petition against the State Wakf Board under Section 4(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 seeking maintenance. The appellant-Wakf Board moved the High Court praying for quashing of proceedings but the High Court declined to do so. The appellants had G approached this Court for the same purpose. On behalf of the appellant-Wakf Board it was contended that unless sub-section (1) of Section 4 of the Act got exhausted by proper orders, sub-section (2) of Section 4 (in which the liability of the State Wakf Board was to be found) could not be invoked. H 271 272 SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R. A Dismissing the appeal, this Court HELD : 1.1. The Drafter's lJattern in sub-dividing Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 into sub-sec- tions (1) and (2) evidently was not to cause any split in the legislative theme because the provision is an integrated "whole. One step is dependent on B another. It is futile for a divoirced woman seeking succour to run after relatives, be it her children, parents, or other relatives, who are not pos- sessed of means to offer her maintenance and in lighting litigations in succession against them, dragging them to courts of law in order to obtain negative orders justificatory to the last resort of moving against the State C Wakf Board. She would instead be entitled to plead and prove such relevant facts in one proceeding, as to the inability of her relations in maintaining her and directing her claim against the State Wakf Board in the first instance. It is, however, open for the State Wakf Board to controvert that the relations tnentioned in the provision, or son1e of them, have the means to pay maintenance to her. In that event Magistrate would 11erfectly be D justified in adding those relatives as parties to the litigation in order to determine as towards whom shall he direct his orders for payment of maintenance. In one and the sa1ne proceeding, one or more orders con- ceivably can be passed in favour of the divorced woman, subject of course to her not ren1arrying and remaining unable to 1naintain herself. E (277-E-H, 278-A) F 1.2. The High Court committed no wrong in declining to interfere at the initial stage of the proceedings at the behest of the appellants. They are at liberty to take before the Magistrate hearing the matter, such defences as are open to them on the merit of the matter and within the framework of the legislative scheme embodied in Section 4 of the Act. (278-B] Mohd. Ahmad Khan v. Shah Bano Begom, (1985) 2 SCC 556, referred to. 2. The liability of the relatives other than the children and the G parents, follows sequentially, subject to the conditions as embodied in the proviso. The liability of the relatives does not depend on the contingency that the divorced woman has property which they would inherit. It looks incongruous though that a dil'orced woman having property would yet be unable to maintain herself. Seemingly, the phraseology has been' employed to ascertain firstly such of the those relatives who could have inherited her H property, fictional
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