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2007 DIGILAW 564 (GAU)

Tripura Board of Wakf v. Ayasha Bibi

2007-08-22

BIPLAB KUMAR SHARMA

body2007
ORDER B.K. Sharma, J. 1. Heard Mr. D. Chakraborty, learned Counsel for the petitioner, Also heard Mr. B. Das, learned Sr. Counsel assisted by Mr. D. Chakraborty, learned Counsel representing the respondent. 2. The petitioner, Tripura Board of Wakf represented by its Secretary, has filed this writ petition under Article 226/227 of the Constitution of India making a challenge to the orders passed in the proceedings initiated by the respondent, who is a Muslim woman, for payment of maintenance. 3. The respondent herein had approached the Wakf Board by her application submitted in June, 1990 claiming maintenance as per the provisions of Section 4(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. In the petition, it was contended that she has been divorced by her husband making her destitute without any means of livelihood. It was stated in the petition that after such divorce and desertion by the husband she had been living along with her son in penury. As regards her relatives, it was stated in the petition that they were not in a position to maintain her. 4. The respondent-wife was intimated by the petitioner Board that there is no provision in the aforesaid Act of 1986 to pay maintenance allowance to a divorced Muslim woman by the Wakf Board, unless there is specific order of the competent Court of law. 5. After the aforesaid letter dated 26-7-1990 addressed to the respondent wife by the petitioner-Board rejecting her claim for maintenance, she approached the learned CJM, South Tripura, Udaipur by filing a petition registered and numbered as case No. Misc. case 38 of 90. In the petition, she narrated her plight after her divorce by the husband. It was stated that her son was aged about 4 and half years of age and that she was unable to maintain herself and her son. It was also stated that her father and mother were aged about 77 and 70 years respectively and had no means of livelihood to provide maintenance to her. It was also stated that none of the relatives of the respondent wife was in a position to maintain her. In the circumstances, it was prayed that appropriate direction be issued to the petitioner Board for payment of maintenance. In the petition, the fact of addressing the aforesaid letter to the petitioner-Board was also mentioned. 6. It was also stated that none of the relatives of the respondent wife was in a position to maintain her. In the circumstances, it was prayed that appropriate direction be issued to the petitioner Board for payment of maintenance. In the petition, the fact of addressing the aforesaid letter to the petitioner-Board was also mentioned. 6. The learned CJM by his order dated 21-12-1990, issued direction for providing maintenance allowance @ Rs. 300/- per month to the respondent-wife from the date of filing of the petition i.e. 1-11-1990. The learned CJM passed the order upon taking evidence. As many as 3 witnesses were examined who supported the case of the respondent wife as narrated in the petition. On the basis of the materials on record, the learned CJM being satisfied that the prerequisites for granting maintenance under Section 4(2) of the aforesaid Act of 1986 were fulfilled, passed the order dated 21-12-1990 directing the petitioner-Board to pay maintenance @ Rs. 300 per month to the respondent-wife from the date of filing of the application. 7. The respondent wife by her Annexure-5 petition dated 6-5-1991 approached the petitioner Board apprising the order passed by the learned CJM granting maintenance to her. It appears that the petition was duly received by the representative of the petitioner Board which will be evident from the enforcement made on the body of the petition. However, the petitioner Board did not obey the order of the learned CJM and the respondent wife did not get any maintenance from the petitioner Board. Situated thus, she filed an application before the learned CJM seeking a direction for proper implementation of the order dated 21-12-1990. In her application seeking implementation of the order by appropriate direction she narrated the entire facts including as to how she had approached the petitioner Board. 8. On the basis of the said application registered and numbered as Misc. Case No. 37 of 92, the learned Judicial Magistrate, First Class passed an order dated 17-5-1993 directing the petitioner Board to pay the maintenance allowance without fail or in the alternative to show cause within 15 days as to why the amount should not be paid by the Board. 9. When the said order was not complied with, the learned Judicial Magistrate passed another order dated 7-7-1994 after hearing the parties. 9. When the said order was not complied with, the learned Judicial Magistrate passed another order dated 7-7-1994 after hearing the parties. It was submitted on behalf of the Board that it would prefer an appeal before the High Court and in that view of the matter, the Board should be granted further time. The learned Judicial Magistrate rejected the prayer of the petitioner Board. In the order, it was recorded that the petitioner Board wanted to delay the proceeding unmindful of the plight of the respondent wife who was in distress and wretched condition. However, liberty was granted to the petitioner Board to prefer an appeal before this Court. 10. After the aforesaid order passed by the learned Judicial Magistrate, it appears that the petitioner Board preferred the Criminal Revision Petition No. 14(3)/94 in the Court of learned Sessions Judge, South Tripura, Udaipur. The revision petition was not entertained on ground of non maintainability. However, the prayer of the petitioner Board for time was considered granting one month time for preferring appeal before the High Court. It is submitted that no appeal was filed. 11. When the aforesaid order was not implemented by the petitioner Board, the learned Judicial Magistrate issued notice to the Board by Annexure-10 order directing it to make the deposit of the outstanding dues and also to show cause as to why in default the amount should not be realized from them. Thereafter also when the orders were not complied with, a distress warrant was issued. It was at that stage, the petitioner Wakf Board approached this Court by filing the instant writ petition. 12. Mr. D. Chakraborty, learned Counsel for the petitioner placing reliance on the decision of the Apex Court in 2001 CriLJ 4660 (Danial Latif v. Union of India) submits that the Court below exceeded its jurisdiction in passing the impugned orders. He submits that before passing the initial order on 21-12-1990, the Wakf Board ought to have been heard by the learned CJM. Countering the above argument, Mr. B. Das, learned Sr. Counsel representing the respondent wife submits that whole exercise on the part of the Wakf Board is to frustrate the claim of the respondent wife for maintenance. He submits that the very purpose of the Act 1986 has been sought to be frustrated by the petitioner Board. Countering the above argument, Mr. B. Das, learned Sr. Counsel representing the respondent wife submits that whole exercise on the part of the Wakf Board is to frustrate the claim of the respondent wife for maintenance. He submits that the very purpose of the Act 1986 has been sought to be frustrated by the petitioner Board. As regards the notice to the Board, he submits that such notice is not contemplated in Section 4(2) of the Act nor in any other provision of the Act. In this contention, he has placed reliance on two decisions of the Apex Court as reported in AIR1996 SCW 2960(Secretary, Tamil Nadu Wakf Board v. Syed Fatima Nachi) and 2001 AIR SCW 3932 (Danial Latif v. Union of India). 13. I have given my anxious consideration to the submissions made by the learned Counsel for the parties as well as on the materials available on record. The respondent, a lady in distress, sought for maintenance 17 years back by initiating the proceeding in the year 1990. The order for maintenance was passed on 21-12-1990. But the same is yet to be implemented by the petitioner Board. Instead of acting as a model organization and adhering to the provisions of the Act of 1986, the petitioner Board has made all out efforts to frustrate the claim of the respondent-wife. 14. The learned CJM passed the order on 21-12-1990 a copy of which was duly furnished to the petitioner Board by the respondent wife. In spite of such information, the petitioner Board did not make any grievance against the order dated 21-12-1990. It is only when the respondent wife sought for execution of the order dated 21-12-1990 and the petitioner Board received notice on that, they contended that they were not liable to pay any maintenance. It was also contended that they would prefer appeal before the High Court. This aspect of the matter has been dealt with by the learned Judicial Magistrate, First Class in his order dated 7-7-1994. 15. After the aforesaid order dated 7-7-1994, the petitioner Board being not satisfied, once again approached the learned Sessions Judge by filing the aforementioned Criminal Revision petition. On that occasion also, the leniency was shown by granting time to pay the outstanding dues. 15. After the aforesaid order dated 7-7-1994, the petitioner Board being not satisfied, once again approached the learned Sessions Judge by filing the aforementioned Criminal Revision petition. On that occasion also, the leniency was shown by granting time to pay the outstanding dues. Thereafter also, the petitioner Board did not pay the maintenance allowance to the respondent wife which eventually led to issuance of the aforesaid notice and the distress warrant. 16. In the aforesaid fact situation of the case, there is no manner of doubt that the petitioner Board instead of acting towards implementation of the object and reasons for which the aforesaid Act of 1986 was made, resisted the same making all out efforts. The delay in making the payment is staring and glaring. The order was passed way back in 1990 (21-12-1990) and long 17 years thereafter also the respondent wife is deprived of her maintenance which was provided to her by the learned CJM with direction to the petitioner Board to pay the same from the date of filing of the application. 17. As regards the plea of the petitioner Board that before passing the order dated 21-12-1990, they ought to have been heard, it will be suffice to say that no such provision is discernible in the Act. Section 4(2) of the Act provides that where a divorced woman is unable to maintain herself and she has no relative as mentioned in Sub-section 4(1) or such 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 shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to Sub-section (1), the Magistrate may by order direct the State Wakf Board to pay such maintenance as determined by him. 18. Section 4 itself provides recording of satisfaction by the Magistrate that a divorced woman who has not re-married is not able to maintain herself after the iddat period. Upon recording of such satisfaction, a direction can be issued amongst others to the Wakf Board if it is found that the husband and her relatives are not in a position to maintain her. 19. Upon recording of such satisfaction, a direction can be issued amongst others to the Wakf Board if it is found that the husband and her relatives are not in a position to maintain her. 19. On perusal of the impugned order dated 21-12-1990, it appears that the learned CJM in consideration of the evidence on record, passed the order directing the petitioner-Board to pay maintenance allowance to the petitioner. In none of the proceedings initiated at the instance of the petitioner Board, the said findings of facts recorded by the learned CJM has been put to challenge. The only contention advanced by the petitioner Board is that it is not liable to pay maintenance allowance under the provisions of the Act of 1986. 20. In Secretary, Tamil Nadu Wakf Board 1996 AIR SCW 2960 (supra), the Apex Court observed that the only requirement is to prove the relevant fact by the divorced wife. In this connection the observation of the Apex Court made in para 9 of the judgment is quoted below: Going by the arguments and the reasoning adopted by the appellants, it would, in our way of thinking, have a devastating effect on the purpose for which the provision was enacted. The Drafter's pattern in subdividing the provision into Sub-sections (1) and (2) evidently was not to cause any spilt in the legislative theme because the provision, as it appears to us, is an integrated whole. One step is dependent on another. It is futile for a divorced woman seeking succour to run after relatives, be it her children, parents, relatives or other relative, who are not possessed of means to offer her maintenance and in fighting 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 Wakf Board. In our considered view, she would instead be entitled to plead and prove such relevant facts in one proceeding, as to the inability of her relations aforementioned, 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 mentioned in the provision, or some of them, have the means to pay maintenance to her. It is, however, open for the State Wakf Board to controvert that the relations mentioned in the provision, or some of them, have the means to pay maintenance to her. In that event the Magistrate would perfectly be 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 same proceeding, one or more orders conceivably can be passed in favour of the divorced woman, subject of course to her not remarrying and remaining unable to maintain herself. 21. In Danial Latif AIR 2001 SC 3958 (supra), the Apex Court observed that as per the provisions of Section 4 of the Act, the Magistrate may direct the State Wakf Board to pay the maintenance. Even in the case on which Mr. D. Chakraborty, learned Counsel for the petitioner-Board has placed reliance i.e. Danial Latif, (supra) the Apex Court while upholding the validity of the Act which was put to challenge observed that a divorced Muslim woman who has not re-married and who is not able to maintain herself after the iddat period can proceed for maintenance allowance as provided under Section 4 of the Act against her relatives and if none of the relatives is unable to pay maintenance, the Magistrate may direct the State Wakf Board to pay such maintenance. 22. In view of the above, I do not find any infirmity in the impugned proceedings and orders passed therein. Consequently, the writ petition merits dismissal which I accordingly do. The petitioner-State Wakf Board shall now pay the maintenance allowance both outstanding and current to the respondent-wife without any further delay. It is further directed that such payment shall be made within 15th October, 2007 failing which the learned Judicial Magistrate shall be within his competence and jurisdiction to execute the order in accordance with law. It will also be open to the respondent-wife to file appropriate application before the appropriate forum for enhancement of the maintenance allowance. The writ petition is dismissed without, however, any order as to costs.