landmark judgments of supreme court of india on Maintenance & ALIMONY
also adopted delaying tactics in the progress of the subject maintenance proceedings.
Furthermore, the Magistrate granted interim maintenance of Rs.25, 000/per month from
the date of filing of the maintenance petition on the prima facie finding that the respondent’s
monthly salary, earned in Canada, was over Rs.1 lakh in the year 2003. That issue was finally
resolved by this Court vide order dated 20 th October, 2014 by observing that the cause of
justice would be subserved if the appellant was granted a sum of Rs.20,000/ per month as
an interim maintenance, commencing from November, 2014. That interim arrangement
was continued till the final disposal of the maintenance petition by the Family Court.
13. Be that as it may, the High Court took into account all the relevant aspects and justly rejected
the plea of the respondent about inability to pay maintenance amount to the appellant on
the finding that he was well educated and an ableb odied person. Therefore, it was
not open to the respondent to extricate from his liability to maintain his wife. It would be
apposite to advert to the relevant portion of the impugned judgment which reads thus:
“79. The respondent during the cross examination has admitted that he too is
B.Com, M.A.(Eco.) and MBA from Kentucky University, USA; the respondent
is a Canadian citizen working with Sprint Canada and is earning Canadian $(CAD)
29,306.59 as net Annual Salary. However, he has claimed that he has
resigned from Sprint Canada on 23.11.2010 and the same has been accepted
on 27.11.2010 and the respondent since then is unemployed and has got no source of
income to maintain himself and his family.
80. In the instant case, the petitioner has filed the case under Section 125 Cr.P.C.,
1973 for grant of maintenance as she does not know any skill and specialised work to
earn her livelihood i.e. in paragraph 26 of maintenance petition against her
husband. However, the respondent husband who is well educated and comes from
extremely respectable family simply denies the same. The respondent husband in his
written statement does not plead that he is not an ablebodied person nor he is able to
prove sufficient earning or income of the petitioner.
81. It is an admitted fact emerging on record that both the parties got married as per
Hindu Rights and Customs on 24.03.2002 and since then the petitioner was living
with her parents from 10.08.2002 onwards, and the parents are under no legal
obligation to maintain a married daughter whose husband is living in Canada
and having Canadian citizenship. The plea of the respondent that he does not have
any source of income and he could not maintain the wife is no answer as he is mature
and an able bodied person having good health and physique and he can earn enough on
the basis of him being able bodied to meet the expenses of his wife. In this context,
the observation made in Chander Prakash v. Shrimati Shila Rani, AIR 1968 Del 174
by this Court is relevant and reproduced as under:
“7.........an able bodied young man has to be presumed to be capable of earning sufficient
money so as to be able reasonably to maintain his wife and child and he cannot be
heard to say that he is not in position to earn enough to be able to maintain them
according to the family standard. It is for such ableb odied person to show to the Court
cogent grounds for holding that he is unable, for reasons beyond his control, to earn
enough to discharge his legal obligation of maintaining his wife and child.”
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Reema Salkan vERSUs Sumer Singh Salkan
82. The husband being an ableb odied person is duty bound to maintain his wife who is
unable to maintain herself under the personal law arising out of the marital status and
is not under contractual obligation. The following observation of the Apex Court
in Bhuwan Mohan Singh v. Meena, AIR 2014 SC 2875, is relevant: “3.….Be it
ingeminated that Section 125 of the Code of Criminal Procedure (for short “the
Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman
who left her matrimonial home for the reasons provided in the provision so that some
suitable arrangements can be made by the court and she can sustain herself and also
her children if they are with her. The concept of sustenance does not necessarily
mean to lead the life of an animal, feel like an unperson to be thrown away from grace
and roam for her basic maintenance somewhere else. She is entitled in law to
lead a life in the similar manner as she would have lived in the house of her
husband. That is where the status and strata come into play, and that is where
the obligations of the husband, in case of a wife, become a prominent one. In a
proceeding of this nature, the husband cannot take subterfuges to deprive her of
the benefit of living with dignity. Regard being had to the solemn pledge at the time of
marriage and also in consonance with the statutory law that governs the field, it
is the obligation of the husband to see that the wife does not become a destitute, a beggar.
A situation is not to be maladroitly created where under she is compelled to resign to her
fate and think of life “dust unto dust”. It is totally impermissible. In fact, it
is the sacrosanct duty to render the financial support even if the husband is
required to earn money with physical labour, if he is ableb odied. There is no escape route
unless there is an order from the court that the wife is not entitled to get maintenance
from the husband on any legally permissible grounds.
(emphasis applied)
83. The respondent’s mere plea that he does not possess any source of income ipso facto does
not absolve himself of his moral duty to maintain his wife in presence of good physique
along with educational qualification.”
The view so taken by the High Court is unassailable. Indeed, the respondent has raised a plea
to question the correctness of the said view, in the reply affidavit filed in this appeal, but in our
opinion, the finding recorded by the High Court is unexceptionable.
14. The only question is: whether the quantum of maintenance amount determined by
the High Court is just and proper. The discussion in respect of this question can be traced
only to paragraph 84 of the impugned judgment which reads thus:
“84. So far, the quantum of maintenance is concerned nothing consistent is emerging
on record to show the specific amount which is being earned by the respondent after 2010,
however the husband is legally bound to maintain his wife as per the status of a respectable
family to which he belongs. The husband being ablebodied along with high qualification B.Com,
M.A.(Eco) and MBA from Kentucky University, USA could earn at least minimum of
Rs. 18,332/ as per the current minimum wage in Delhi. Therefore, the petitioner
being wife is entitled to Rs. 9,000/ per month from 09.12.2010 onwards till further
orders.”
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landmark judgments of supreme court of india on Maintenance & ALIMONY
15. The principle invoked by the High Court for determination of monthly maintenance
amount payable to the appellant on the basis of notional minimum income of the
respondent as per the current minimum wages in Delhi, in our opinion, is untenable. We are
of the considered opinion that regard must be had to the living standard of the respondent and
his family, his past conduct in successfully protracting the disposal of the maintenance
petition filed in the year 2003, until 2015; coupled with the fact that a specious and
unsubstantiated plea has been taken by him that he is unemployed from 2010,
despite the fact that he is highly qualified and an ablebodied person; his monthly income
while working in Canada in the year 2010 was over Rs.1,77,364/; and that this Court in Criminal
Appeal Nos.23472 349/2014 has prima facie found that the cause of justice would
be subserved if the appellant is granted an interim maintenance of Rs.20,000/ per month
commencing from November 1, 2014. At this distance of time, keeping in mind the spiraling
inflation rate and high cost of living index today, to do complete justice between the
parties, we are inclined to direct that the respondent shall pay a sum of Rs.20,000/per month to
the appellant towards the maintenance amount with effect from January 2010 and at the rate of
Rs.25,000/per month with effect from 1st June, 2018 until further orders. We order accordingly.
16. We, therefore, direct the respondent to pay the enhanced maintenance amount, as determined in
terms of this order, to the appellant within a period of eight weeks from today after duly adjusting
the amount already deposited in Court/paid to the appellant till date. The appellant will
be entitled to forthwith withdraw the maintenance amount deposited by the respondent in
Court, if any. The impugned judgment of the High Court is accordingly modified in
the aforementioned terms.
17. The appeal is allowed in the aforementioned terms.
qqq
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Sanjay Kumar Sinha versus Asha Kumari
Sanjay Kumar Sinha versus Asha Kumari
Supreme Court of India
Bench : Hon’ble Mr. Justice R. K. Agrawal, Hon’ble Mr. Justice Abhay Manohar Sapre
Sanjay Kumar Sinha .....Appellant(S)
Versus
Asha Kumari & Anr. .....Respondent(S)
Civil Appeal No. 3658 of 2018
(Arising out of S.L.P.(c) No. 6301 of 2017)
Decided on : 8th April, 2018
The dispute is between the husband and wife. Appellant-husband has filed the divorce
petition under Section 13 of the Hindu Marriage Act, 1955 against the respondent wife.
The Respondent-wife filed an application under Section 24 of the Hindu Marriage Act,
1955 in the aforesaid divorce petition and claimed for interim maintenance. The Family
Judge awarded the maintenance (dated 15-7-2016). It is to be noted that the Respondent-
wife had also filed an application under Section 125 of the Criminal Procedure Code, 1973
seeking maintenance before the Principal Judge, Family Court.(maintenance awarded,
dated 3-1-2011). The Appellant-husband aggrieved by the order dated 15-7-2016, filed
civil miscellaneous application in the High Court, which was dismissed. The Supreme Court
heard the present appeal by way of special leave by the Appellant-husband and held that
the Maintenance awarded under Section 24 of Hindu Marriage Act, 1955 supersedes the
Maintenance awarded under Section 125 of Criminal Procedure Code, 1973.
JUDGMENTS
Hon’ble Mr. Justice A.M. Khanwilkar :—
1. Leave granted.
2. This appeal is filed by the husband against the final judgment and order dated 27.10.2016
passed by the High Court of Judicature at Patna in CMJC No.965/2016 whereby the High Court
dismissed the application filed by the appellant herein and upheld by the order dated 15.07.2016
passed by the Principal Judge, Family Court, Begusarai in Divorce Case No.42 of 2010.
3. Few facts need to be mentioned to appreciate the short issue involved in the appeal.
4. The dispute is between the husband and wife. The appellant is the husband whereas the
respondent is the wife.
5. The appellant (husband) has filed the divorce petition under Section 13 of the Hindu Marriage Act,
1955 (hereinafter referred to as “the Act”) against the respondent (wife) being Divorce Case No.
42/2010 before the Principal Judge, Family Court, Bagusarai. It is pending for its final disposal.
6. The respondent (wife) filed an application under Section 24 of the Act in the aforesaid Divorce
petition and claimed from the appellant (husband) pendente lite monthly maintenance for
herself and her daughter. The appellant contested it.
7. By order dated 15.07.2016, the Family Judge awarded Rs.8000/- per month to the wife and
Rs.4000/- per month to her minor daughter towards the maintenance and Rs.2500/- per month
towards the litigation expenses.
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landmark judgments of supreme court of india on Maintenance & ALIMONY
8. It may be mentioned here that the respondent (wife) had also filed one application under
Section 125 of the Criminal Procedure Code, 1973 (hereinafter referred to as “Cr.P.C”) seeking
maintenance before the Principal Judge, Family Court, Samastipur. By order dated 03.01.2011,
the Family Judge allowed the application and awarded Rs.4000/- per month to the wife
(petitioner therein) and Rs.2000/- per month to the daughter towards the maintenance and
Rs.5000/- towards the litigation expenses.
9. The appellant (husband) felt aggrieved by the order dated 15.07.2016 by the Family Judge and
filed civil miscellaneous application in the High Court at Patna. By impugned order, the Single
Judge upheld the order dated 15.07.2016 of the Family Judge, Begusarai and dismissed the
application filed by the appellant herein, which has given rise to filing of the present appeal by
way of special leave before this Court by the husband.
10. Heard Mr. Abhishek Vikas, learned counsel for the appellant and Mr. Ranjit Kumar Sharma,
learned counsel for the respondents.
11. Having heard learned counsel for the parties and on perusal of the record of the case, we are
inclined to dispose of the appeal finally as under:
12. First, the Family Court shall decide the main Divorce Case No. 42/2010 preferably within 6
months on merits.
13. Second, consequent upon passing of the maintenance order dated 15.07.2016 under Section
24 of the Act by the Family Court, the order passed by the Family Court, Samastipur under
Section 125 of Cr.P.C. stands superseded and now no longer holds the field. Indeed, this fact was
conceded by the learned counsel appearing for the respondent (wife).
14. Third, the appellant (husband) shall, during pendency of main divorce case, continue to pay in
cash a sum of Rs.8000/- p.m. (Rs.6000/- to the wife and Rs.2000/- to the daughter) and for the
balanced sum, i.e., Rs.4000/- p.m., the appellant would furnish security.
15. Fourth, depending upon the outcome of the main case, appropriate orders towards permanent
maintenance and its arrears be also passed.
16. Fifth, the arrears towards monthly maintenance be paid by the appellant to the respondent (wife)
within one month from the date of this order, if any, at the rate fixed by this Court above.
17. Sixth, payment of monthly maintenance amount, as fixed by this Court, be paid on 1 st of every
month by the appellant to the respondent.
18. Seventh, security for the balance amount (at the rate of Rs.4000/- per month) be furnished within
one month to the satisfaction of the Family Judge after calculating the monthly maintenance and
arrears liability.
19. Parties are at liberty to adduce evidence on the issue of grant of permanent maintenance in the
main case.
20. Parties are also granted liberty to mediate and settle the issue amicably by appearing before the
Family Court and if the issue is not settled amicably, the Family Court would decide it on merits,
as directed above.
21. We have not expressed any opinion on the merits of the issue and, therefore, the Family Court
will decide the case, without being influenced by our order, only on the basis of pleadings and
evidence adduced by the parties in the main case.
22. With these directions, the appeal stands disposed of.
qqq
page no. | 296 |
Padmja Sharma Versus Ratan Lal Sharma
Padmja Sharma Versus Ratan Lal Sharma
Supreme Court of India
Bench : Hon’ble Mr. Justice D.P. Wadhwa and Hon’ble Mr. Justice M.B. Shah
Padmja Sharma .....Appellant(S)
Versus
Ratan Lal Sharma .....Respondent(S)
Civil Appeal No. 2462 of 1999
Decided on : 28th March, 2000
Suit deals with section 26 of the Hindu Marriage Act, 1955(herein Act), S.18 and S.20 of the
Hindu Adoption and Maintenance Act, 1956, S. 125 of CrPC. The appellant-wife filed divorce
petition claiming maintenance for her and her children. In order dated 07-04-1992 the
Family Court under S.125 of CrPC granted maintenance @ Rs.250 per month per child and
under S.26 of the Act @ Rs 250 per month per child. The family court granted divorce under
section 13 of the Act. To enhance the amount for maintenance, the appellant wife appealed
to High Court. The High Court enhanced the maintenance of the children and observed
that,”it is the incumbent liability on the part of the father to bear the cost of education and
maintenance of the children”. The court held that when both the parents are earning then
it is both parents’ duty to share burden of education and maintenance.
JUDGMENTS
Hon’ble Mr. Justice D.P. Wadhwa :—
1. Appellant, the wife, whose marriage with the respondent has since been dissolved by decree
of divorce on the ground of cruelty on the petition filed by her, has filed this appeal not only
seeking enhanced maintenance for two minor children of the marriage but also for claiming the
same from the date of application filed under Section 261 of the Hindu Marriage Act, 1955 (for
short the ‘Act) in the Family Court, Jaipur. Appellant is also aggrieved by the order of the courts
below not granting her full claim of ‘streedhan’, litigation expenses, etc.
2. Both the parties are Hindu. Their marriage was solemnized in accordance with Hindu rites on
May 2, 1983. First child, a son, was born on January 27, 1984 and the second child, also a son,
was born on June 28, 1985. Wife field petition for dissolution of marriage on May 21, 1990. She
also prayed therein for return of her ‘streedhan’, custody and guardi-anship of the children and
also for their maintenance. At the same time she also filed an application under Section 125 of
Code of Criminal Procedure (Code).
1 26. Custody of children - In any proceeding under this Act, the court may, from time to time, pass such interim orders and,
make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education
of minor children, consistently with their wishes, wherever possible, and may, alter the decree, upon application by petition
for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and edu-
cation of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such
decree were still pending, and the court may, also from time to time revoke suspend or vary any such orders and provisions
previously made.
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3. On August 2, 1991, wife filed a petition under Section 26 of the Act in the Family Court claiming
maintenance @ Rs. 2575 per month for both the children. In the affidavit supporting the
application, however, maintenance was claimed @ Rs. 2,500 per month for both the children. It
was pointed out that husband was getting a salary of Rs. 6233.40 per month. Wife also claimed a
sum of Rs. 1,585 as admission fee in schools for the children and Rs. 5,000 as litigation expenses.
4. Family Court by the order dated April 7, 1992 granted maintenance under Section 125 of the
Code @ Rs. 250 per month for each child. On April 30, 1992 Family Court awarded a further
sum of Rs. 250 per month for each child as interim maintenance under Section 26 of the Act.
Family Court also framed issues relating to the custody, guardianship and maintenance of the
minor children and also regarding ‘streedhan’.
5. On October 27, 1995 wife filed another application under Section 26 of the Act wherein she drew
the attention of the court to her earlier application filed on August 2, 1991. Now she claimed
Rs. 2000 per month for each child. She said salary of the husband had since been increased to
Rs. 12,225 in August, 1995. On August 26, 1997 yet another application was filed by wife under
Section of the Act. Now she wanted maintenance for the elder child @ Rs. 3,500 per month and
for the younger child @ Rs. 3,000 per month, it was pointed out that the salary of the husband
was Rs. 13,683 per month and thereafter from August, 1997 it was going to be increased to Rs.
14,550 per month.
6. Family Court by order dated September 13, 1997 consolidated both the proceedings - one under
Section 13 of the Act for dissolution of the marriage and the other under Section 26 of the Act.
On October 4, 1997 Family Court granted decree of divorce in favour of the wife dissblving the
marriage between her and the respondent. Against claim of Rs, 1,80,000 towards ‘streedhan’
Family Court granted a decree of Rs. 1,00,000 as cost of the articles which prayer was granted in
the alternative if the respondent did not return the articles mentioned by wife in her petition. It
was also ordered that both the children, till they attain majority, should be in the custody of the
mother, the appellant, and maintenance for each of the child was awarded @ Rs. 500 per month
from October 4, 1997. A sum of Rs. 1,000 was awarded as cost of the litigation to the wife.
7. Wife took the matter to the High Court seeking enhanced amount of maintenance of the children
and decree for the full amount of Rs. 1,80,000. High Court, by its impugned judgment, enhanced
maintenance of the children from Rs. 500 per month to Rs. 1,000 per month effective from the
date of the order of the Family Court dated October 4, 1997 and awarded Rs. 500 per month
for each child from the date of the application. High Court observed, though in our view not
correctly, that “it is an incumbent liability on the part of the father to bear the cost of education
and the maintenance express for the two children...........” High Court also observed that the
respondent was “admittedly employed in a responsible position in the Reserved Bank of India
where his gross pay packet amounts to Rs. 13,000 per month”. During the course of hearing
we have been told that the husband is employed as a clerk in the Reserve Bank of India while
the appellant-wife is a lecturer in a Government college in Rajasthan. High Court rejected the
prayer of the wife for enhancement of any amount from Rs. 1,00,000. High Court made certain
directions for the husband to meet the children and with that we are not concerned. High Court
disposed of the appeal without any order as to costs. Still the wife felt aggrieved and sought leave
to appeal to this Court under Article 136 of the Constitution, which we granted. By an interim
order passed on February 22, 1999 it was directed by this Court that by way of interim relief
maintenance for each of the child be paid @ Rs. 1,500 per month by the respondent-husband.
page no. | 298 |
Padmja Sharma Versus Ratan Lal Sharma
8. This Court in an appeal under Article 136 of the Constitution is not going to re-appreciate the
evidence led before the Family Court. There is a concurrent finding of award of Rs. 1,00,000
to the wife though in the alternative being the cost of the articles presented at the time of the
marriage which we are not going to disturb. As far as costs and special costs are concerned that
again is within the discretion of the court and unless some weighty reason is shown to us we
again to not think that we should unsettle the payment of award of costs by the Family Court
and nor payment of costs by the High Court. Appellant says she has been harassed persistently
by the husband in delaying the trial before the Family Court. But then husband also has a
grievance that in the Family Court he could not get the services of a lawyer though the wife was
represented by her father, who himself is a lawyer and while her father would argue in the court
she would remain mute.
9. Respondent before us has not appeared instead of notice to him. We have heard the agreements
of the wife ex-parte. On February 28, 2000 an application was filed by the appellant for placing on
record additional documents which are all of the period after filing of this appeal. No notice has
been given to the respondent of this application. The purpose of the applica-tion appears to be
to further enhance the amount of maintenance taking into account the changed circumstances
as the salary of the respondent-husband is stated to have increased by passage of time. Various
documents like receipts for payment of school fees, buying of books, school bags, etc. have been
filed. We are not inclined to permit this application at this stage. If circumstances have changed
for enhancement of maintenance appellant can approach the Family Court again as an order
under Section 26 of the Act is never final and decree passed thereunder is always subject to
modification.
10. Maintenance has not been defined in the Act or between the parents whose duty it is to maintain
the children. Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu
Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a
coded form for the Hindus. Unless there is anything repugnant to the context definition of a
particular word could be lifted from any of the four Acts constituting the law to interpret a
certain provision. All these Act are to be read in conjunction with one another and interpreted
accordingly. We can, therefore, go to Hindu Adoption and Maintenance Act, 1956 (for short the
‘Maintenance Act’) to understand the meaning of the ‘maintenance’. In clause (b) of Section 3 of
this Act
“maintenance includes (i) in all cases, provisions for food, clothing, residence, education
and medical attendance and treatment; (ii) in the case of an unmarried daughter also the
reasonable expenses of and incident to her marriage” and under clause (c) “minor means a
person who has not completed his or her age of eighteen years”.
Under Section 18 of the Maintenance Act a Hindu wife shall be entitled to be maintained by her
husband during her life time. This is of course subject to certain conditions with which we are
not concerned. Section 20* provides for maintenance of children and aged parents. Under this
Section a Hindu is bound, during his or her life time, to maintain his or her children. A minor
child so long as he is minor can claim maintenance from his or her father or mother. Section
20 is, therefore to be contrasted with Section 18. Under this Section it is as much the obligation
of the father to maintain a minor child as that of the mother. It is not the law that how affluent
mother may be it is the obligation only of the father to maintain the minor.
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11. In the present case both the parents are employed. If we refer to the first application filed under
Section 26 of the Act by the wife she mentions that she is getting a salary of Rs. 3,100 per
month and husband is getting a salary of Rs. 5,850 per month. She is, therefore, also obliged to
contribute in the maintenance of the children. Salaries of both the parents have since increased
with the course of time. We believe that in the same proportion, may be perhaps in the case of
an employee of Reserve Bank of India at somewhat higher rate. If we take approximate salary of
husband is twice as much as that of the wife, they are bound to contribute for maintenance of
their children in that proportion. Family Court has already fixed a sum of Rs.. 250 per month
for each of the child under Section 125 of the Code. That amount we need not touch.
12. Considering the overall picture in the present case we are of the view that a sum of Rs. 3,000 per
month for each of the child would be sufficient to maintain him, which shall be borne by both
the parents in the proportion of 2:1. We, therefore, direct that respondent shall pay a sum of Rs.
2,000 per month for each of the two children aforementioned from October 4, 1997, the date of
the order of the Family Court. For the earlier period2 the respondent shall pay Rs. 500 per month
for each of the child from the date of the application, i.e., August 2, 1991 and @ Rs. 1,000 per
month from the date of the second application, which is October 27, 1995 and @ Rs. 1,500 per
month form the date of the third application, which is August 26, 1997. These amounts shall be
apart from the amount which the respondent has already been paying to the children @ Rs. 250
per month under Section 125 of the Code. Respondent shall be entitled to makes adjustment
of the amounts which he has already paid under orders of the Family Court, High Court or the
interim order of this Court.
13. The appeal is thus partly allowed. There shall be no order as to costs as respondent has chosen
not to appear.
qqq
2 20. Maintenance of children and aged parents. -
(I) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate
or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a
minor.
(3) The obligation of a person to maintain his or her aged or infirm parents or daughter who is unmarried extends in
sofar as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his
or her own earnings or other property.
Explanation. - In this section “parent” includes a childless stepmother
page no. | 300 |
Jalendra Padhiary vERSUs Pragati Chhotray
Jalendra Padhiary Versus Pragati Chhotray
Supreme Court of India
Bench : Hon’ble Mr. Justice R. K. Agrawal and Hon’ble Mr. Justice Abhay Manohar Sapre
Jalendra Padhiary .....Appellant(S)
Versus
Pragati Chhotray .....Respondent(S)
Civil Appeal No. 3876 of 2018
[Arising out of SLP (C) No.9691 of 2015]
Decided on : 17th April, 2018
In the present case, the Supreme Court took a strong note of permanent alimony of Rs.
15,00,000/- awarded to the Respondent-wife by the Family Court which was subsequently
upheld by the Division Bench of the High Court. The primary issue that fell for consideration
was whether the permanent alimony of Rs. 15,00,000/- awarded by the Family Court was
legally and factually sustainable?
The Court in the present case observed that the Lower Courts failed to apply their judicial
mind to the factual terms and legal controversy insofar in respect to award of permanent
alimony to the Respondent-wife concerned.
The permanent alimony was given to the Respondent-wife without any discussion,
appreciation reasoning and categorical findings on the key issues such as financial capacity
of the Appellant-husband to pay and the financial earning capacity of the Respondent-wife.
The Bench stated that Courts need to give reasoned orders in every case which must contain-
A) The narration of the bare facts of the case of the parties to the lis.
B) The issues arising in the case.
C) The submissions urged by the parties.
D) The legal principles applicable to the issues involved and
E) The reasons in support of the findings recorded based on appreciation of evidence
on all the material issues arising in the case.
While the court set aside the impugned order, it noted that such orders undoubtedly cause
prejudice to the parties. In this case, it caused prejudice to the appellant-husband because
the orders of the High Court and Family Court deprived him to know the reasons for fixing
the permanent alimony amount of Rs.15, 00,000/- payable to his Appellant-wife.
JUDGMENTS
Hon’ble Mr. Justice Abhay Manohar Sapre :—
1) Leave granted.
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2) This appeal arises from the final judgment and order dated 03.11.2014 passed by the High
Court of Orissa at Cuttack in M.A.T.A. No.113 of 2014 whereby the Division Bench of the High
Court dismissed the appeal filed by the appellant herein in limine at the stage of admission, in
consequence, upheld the order dated 17.09.2014 passed by the Family Court, Bhubaneswar in
Civil Proceeding No.24 of 2011.
3. The facts of the case lie in a narrow compass and it would be clear from the facts stated
hereinbelow.
4. The appellant is the plaintiff whereas the respondent is the defendant in the civil suit out of
which this appeal arises. The dispute is between the husband and wife and it relates to award of
permanent alimony payable to wife.
5. The appellant-husband filed a petition against the respondent-wife under Section 13 of the
Hindu Marriage Act, 1954 (hereinafter referred to as “the Act”) before the Judge, Family Court,
Bhubaneswar seeking decree for dissolution of marriage on the grounds of desertion and cruelty.
The respondent filed her written statement and denied the material averments of the appellant’s
claim. On the basis of the pleadings and the evidence adduced by the parties, the Family Judge,
by order dated 17.09.2014, allowed the petition and passed a decree of divorce by dissolving the
marriage. The Family Judge also directed the appellant(husband) to pay permanent alimony of
Rs.15,00,000/- and litigation expenses of Rs.10,000/- to the respondent(wife).
6. The appellant(husband), felt aggrieved by that part of the order of the Family Court by which
the appellant was directed to pay permanent alimony of Rs.15,00,000/- to the respondent(wife),
filed appeal before the Division Bench of the High Court. By judgment/decree dated 03.11.2014,
the Division Bench of the High Court dismissed the appellant’s appeal and affirmed the order of
the Family Court.
7. Against the order of the Division Bench of the High Court, the appellant(husband) has filed this
appeal by way of special leave in this Court.
8. The short question, which arises for consideration in this appeal, is whether the Division Bench
of the High Court was justified in dismissing the appellant’s appeal in limine and thereby
upholding the order of the Family Judge insofar as it related to awarding permanent alimony of
Rs.15,00,000/- to the wife(respondent).
9. Heard Mr. Kumar Gaurav, learned counsel for the appellant and Mr. Radha Shyam Jena, learned
counsel for the respondent.
10. Having heard the learned counsel for the parties and on perusal of the record of the case, we
are constrained to allow the appeal, set aside the impugned order as also the order of the Family
Court to the extent it fixes the award of permanent alimony and remand the case to the Family
Court for deciding the question of grant of permanent alimony payable to wife afresh on merits
in accordance with law.
11. The operative portion of the order of the Family Court reads as under:
“The petition of the petitioner is allowed on contest in favour of the petitioner. A decree of
divorce is passed and the marriage between the petitioner and the respondent is hereby declared
dissolved with effect from the date of decree. The petitioner is directed to pay permanent
page no. | 302 |
Jalendra Padhiary vERSUs Pragati Chhotray
alimony of Rs.15,00,000/- and litigation expenses of Rs.10,000/- to the respondent.” (emphasis
supplied)
12. The order of the Division Bench of the High Court reads as under:
“After looking into the allegations made and pleadings taken by the parties, as recorded in
the impugned judgment, which during the course of argument could not be snipped, we do
not find any reason to interfere with the amount of Rs.15,00,000/- awarded as permanent
alimony to the wife by the learned Judge, Family Court. In the present time, the said amount
is wholly insufficient for the wife to maintain her entire life.
Since we do not find any merit in the appeal, we dismiss the same in limine at the very stage
of admission.”
13. The only question involved in the appeal before the High Court, which was carried to this Court
in this appeal by the appellant (husband), was whether the award of permanent alimony of
Rs.15,00,000/- by the Family Court to the respondent(wife) was legally and factually sustainable.
14. Insofar as the grant of decree of divorce in favour of the husband is concerned, it was not
challenged by the respondent (wife) in appeal before the High Court and hence it attained
finality.
16. In our view, mere perusal of the order of the Family Court and the High Court quoted supra,
would go to show that both the Courts failed to apply their judicial mind to the factual and legal
controversy insofar as award of permanent alimony to the respondent(wife) is concerned. Both
the Courts did not even mention the factual narration of the case set up by the parties on the
question of award of permanent alimony and without there being any discussion, appreciation,
reasoning and categorical findings on the material issues such as, financial earning capacity
of husband to pay the alimony and also the financial earning capacity of wife, a direction to
pay Rs.15,00,000/- by way of permanent alimony to the wife was given. In our opinion, such
direction is wholly unsustainable in law.
16. Time and again, this Court has emphasized on the Courts the need to pass reasoned order in
every case, which must contain the narration of the bare facts of the case of the parties to the lis,
the issues arising in the case, the submissions urged by the parties, the legal principles applicable
to the issues involved and the reasons in support of the findings recorded based on appreciation
of evidence on all the material issues arising in the case.
17. It is really unfortunate that neither the Family Court nor the High Court kept in mind these legal
principles and passed cryptic and unreasoned orders. Such orders undoubtedly cause prejudice
to the parties and in this case, it caused prejudice to the appellant(husband) because the orders
of the High Court and Family Court deprived him to know the reasons for fixing the permanent
alimony amount of Rs.15,00,000/- payable to his wife.
18. We cannot countenance the manner in which both the Courts passed the order which has
compelled us to remand the matter to the Family Court for deciding the issue afresh on merits.
19. In the light of the foregoing discussion, we allow the appeal, set aside the impugned order of
the High Court and the order of the Family Court insofar as it relates to fixing of Rs.15,00,000/-
towards payment of permanent alimony to the respondent(wife) by the appellant(husband) and
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landmark judgments of supreme court of india on Maintenance & ALIMONY
remand the case to the Family Court to decide the quantum of payment of permanent alimony
afresh in accordance with law keeping in view our observations made supra.
20. We, however, make it clear that we have refrained ourselves from making any observation on
merits of the controversy while forming an opinion to remand the case to the Family Court for
the reasons mentioned above. The Family Court would, therefore, decide the issue, uninfluenced
by any of our observations, strictly in accordance with law. If necessary, the Family Court would
also grant liberty to the parties to amend the pleadings and adduce evidence on the question of
quantum of payment of permanent alimony.
21. The appeal is accordingly allowed. Impugned order of the High Court and the order of the
Family Court insofar as it relates to fixation of permanent alimony of Rs.15,00,000/- are set aside
with the aforesaid directions for compliance.
22. We direct the Family Court to decide the case within six months as an outer limit.
23. Till the disposal of the case, the appellant(husband) will continue to pay monthly maintenance
amount, which was fixed by the Family Court, to the respondent regularly. Needless to say, the
payment of monthly maintenance will be subject to the final determination made by the Family
Court.
qqq
page no. | 304 |
Danial Latifi & Anr versus Union Of India
Danial Latifi & Anr versus Union Of India
Supreme Court of India
Bench: Hon’ble Mr. Justice G.B. Pattanaik, Hon’ble Mr. Justice S. Rajendra Babu,
Hon’ble Mr. Justice D.P. Mohapatra, Hon’ble Mr. Justice Doraiswamy Raju &
Hon’ble Mr. Justice Shivaraj V. Patil
Danial Latifi & Anr.
Versus
Union of India
Writ Petition (Civil) 868 of 1986
(2001) 7 SCC 740
Decided on : 28th September, 2001
The Supreme Court in the case of Daniel Latifi v. Union of India a held that reasonable and
fair provisions include provision for the future of the divorced wife (including maintenance)
and it does not confine itself to the iddat period only. The Constitutional validity of the Act
was also upheld.
JUDGMENTS
Hon’ble Mr. Justice S. Rajendra Babu :—
The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986
[hereinafter referred to as the Act] is in challenge before us in these cases.
The facts in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. (1985) 2 SCC 556, are as follows.
The husband appealed against the judgment of the Madhya Pradesh High Court directing him to pay to
his divorced wife Rs.179/- per month, enhancing the paltry sum of Rs.25 per month originally granted
by the Magistrate. The parties had been married for 43 years before the ill and elderly wife had been
thrown out of her husbands residence. For about two years the husband paid maintenance to his wife at
the rate of Rs.200/- per month. When these payments ceased she petitioned under Section 125 CrPC.
The husband immediately dissolved the marriage by pronouncing a triple talaq. He paid Rs.3000/-
as deferred mahr and a further sum to cover arrears of maintenance and maintenance for the iddat
period and he sought thereafter to have the petition dismissed on the ground that she had received the
amount due to her on divorce under the Muslim law applicable to the parties. The important feature of
the case was that the wife had managed the matrimonial home for more than 40 years and had borne
and reared five children and was incapable of taking up any career or independently supporting herself
at that late stage of her life - remarriage was an impossibility in that case. The husband, a successful
Advocate with an approximate income of Rs.5,000/- per month provided Rs.200/- per month to the
divorced wife, who had shared his life for half a century and mothered his five children and was in
desperate need of money to survive.
Thus, the principle question for consideration before this Court was the interpretation of Section
127(3)(b) CrPC that where a Muslim woman had been divorced by her husband and paid her mahr,
would it indemnify the husband from his obligation under the provisions of Section 125CrPC. A Five-
page no. | 305 |
landmark judgments of supreme court of india on Maintenance & ALIMONY
Judge Bench of this Court reiterated that the Code of Criminal Procedure controls the proceedings in
such matters and overrides the personal law of the parties. If there was a conflict between the terms
of the Code and the rights and obligations of the individuals, the former would prevail. This Court
pointed out that mahr is more closely connected with marriage than with divorce though mahr or a
significant portion of it, is usually payable at the time the marriage is dissolved, whether by death or
divorce. This fact is relevant in the context of Section 125 CrPC even if it is not relevant in the context
of Section 127(3)(b) CrPC. Therefore, this Court held that it is a sum payable on divorce within the
meaning of Section 127(3)(b) CrPC and held that mahr is such a sum which cannot ipso facto absolve
the husbands liability under the Act.
It was next considered whether the amount of mahr constitutes a reasonable alternative to the
maintenance order. If mahr is not such a sum, it cannot absolve the husband from the rigour ofSection
127(3)(b) CrPC but even in that case, mahr is part of the resources available to the woman and
will be taken into account in considering her eligibility for a maintenance order and the quantum
of maintenance. Thus this Court concluded that the divorced women were entitled to apply for
maintenance orders against their former husbands under Section 125 CrPC and such applications were
not barred under Section 127(3)(b) CrPC. The husband had based his entire case on the claim to be
excluded from the operation of Section 125 CrPC on the ground that Muslim law exempted from any
responsibility for his divorced wife beyond payment of any mahr due to her and an amount to cover
maintenance during the iddat period and Section 127(3)(b)CrPC conferred statutory recognition
on this principle. Several Muslim organisations, which intervened in the matter, also addressed
arguments. Some of the Muslim social workers who appeared as interveners in the case supported the
wife brought in question the issue of mata contending that Muslim law entitled a Muslim divorced
woman to claim provision for maintenance from her husband after the iddat period. Thus, the issue
before this Court was: the husband was claiming exemption on the basis of Section 127(3)(b) CrPC on
the ground that he had given to his wife the whole of the sum which, under the Muslim law applicable
to the parties, was payable on such divorce while the woman contended that he had not paid the whole
of the sum, he had paid only the mahr and iddat maintenance and had not provided the mata i.e.
provision or maintenance referred to in the Holy Quran, Chapter II, Sura
241. This Court, after referring to the various text books on Muslim law, held that the divorced wifes
right to maintenance ceased on expiration of iddat period but this Court proceeded to observe that
the general propositions reflected in those statements did not deal with the special situation where
the divorced wife was unable to maintain herself. In such cases, it was stated that it would be not only
incorrect but unjust to extend the scope of the statements referred to in those text books in which
a divorced wife is unable to maintain herself and opined that the application of those statements of
law must be restricted to that class of cases in which there is no possibility of vagrancy or destitution
arising out of the indigence of the divorced wife. This Court concluded that these Aiyats [the Holy
Quran, Chapter II, Suras 241-242] leave no doubt that the Holy Quran imposes an obligation on the
Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary
argument does less than justice to the teaching of the Holy Quran. On this note, this Court concluded
its judgment.
There was a big uproar thereafter and Parliament enacted the Act perhaps, with the intention of
making the decision in Shah Banos case ineffective.
The Statement of Objects & Reasons to the bill, which resulted in the Act, reads as follows :
page no. | 306 |
Danial Latifi & Anr versus Union Of India
The Supreme Court, in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. [AIR 1985 SC 945), has
held that although the Muslim Law limits the husbands liability to provide for maintenance of the
divorced wife to the period of iddat, it does not contemplate or countenance the situation envisaged
by Section 125 of the Code of Criminal Procedure, 1973. The Court held that it would be incorrect
and unjust to extend the above principle of Muslim Law to cases in which the divorced wife is unable
to maintain herself. The Court, therefore, came to the conclusion that if the divorced wife is able to
maintain herself, the husbands liability ceases with the expiration of the period of iddat but if she is
unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 of
the Code of Criminal Procedure.
2. This decision has led to some controversy as to the obligation of the Muslim husband to pay
maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights
which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests.
The Bill accordingly provides for the following among other things, namely:-
(a) a Muslim divorced woman shall be entitled to a reasonable and fair provision and
maintenance within the period of iddat by her former husband and in case she maintains
the children born to her before or after her divorce, such reasonable provision and
maintenance would be extended to a period of two years from the dates of birth of the
children. She will also be entitled to mahr or dower and all the properties given to her by
her relatives, friends, husband and the husbands relatives. If the above benefits are not
given to her at the time of divorce, she is entitled to apply to the Magistrate for an order
directing her former husband to provide for such maintenance, the payment of mahr or
dower or the deliver of the properties;
(b) where a Muslim divorced woman is unable to maintain herself after the period of iddat,
the Magistrate is empowered to make an order for the payment of maintenance by her
relatives who would be entitled to inherit her property on her death according to Muslim
Law in the proportions in which they would inherit her property. If any one of such
relatives is unable to pay his or her share on the ground of his or her not having the means
to pay, the Magistrate would direct the other relatives who have sufficient means to pay
the shares of these relatives also. But where, a divorced woman has no relatives or such
relatives or any one of them has not enough means to pay the maintenance or the other
relatives who have been asked to pay the shares of the defaulting relatives also do not have
the means to pay the shares of the defaulting relatives the Magistrate would order the State
Wakf Board to pay the maintenance ordered by him or the shares of the relatives who are
unable to pay.
The object of enacting the Act, as stated in the Statement of Objects & Reasons to the Act, is that
this Court, in Shah Banos case held that Muslim Law limits the husbands liability to provide for
maintenance of the divorced wife to the period of iddat, but it does not contemplate or countenance
the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973 and, therefore, it
cannot be said that the Muslim husband, according to his personal law, is not under an obligation
to provide maintenance beyond the period of iddat to his divorced wife, who is unable to maintain
herself.
As held in Shah Banos case, the true position is that if the divorced wife is able to maintain herself, the
husbands liability to provide maintenance for her ceases with the expiration of the period of iddat but
if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section
page no. | 307 |
landmark judgments of supreme court of india on Maintenance & ALIMONY
125 CrPC. Thus it was held that there is no conflict between the provisions of Section 125 CrPC and
those of the Muslim Personal Law on the question of the Muslim husbands obligation to provide
maintenance to his divorced wife, who is unable to maintain herself. This view is a reiteration of what
is stated in two other decisions earlier rendered by this Court in Bai Tahira vs. Ali Hussain Fidaalli
Chothia, (1979) 2 SCC 316, andFuzlunbi vs. K.Khader Vali & Anr., (1980) 4 SCC 125.
Smt. Kapila Hingorani and Smt. Indira Jaisingh raised the following contentions in support of the
petitioners and they are summarised as follows :
1. Muslim marriage is a contract and an element of consideration is necessary by way of mahr or
dower and absence of consideration will discharge the marriage. On the other hand, Section
125CrPC has been enacted as a matter of public policy.
2. To enable a divorced wife, who is unable to maintain herself, to seek from her husband, who
is having sufficient means and neglects or refuses to maintain her, payment of maintenance at
a monthly rate not exceeding Rs.500/-. The expression wife includes a woman who has been
divorced by, or has obtained a divorce from her husband and has not remarried. The religion
professed by a spouse or the spouses has no relevance in the scheme of these provisions
whether they are Hindus, Muslims, Christians or the Parsis, pagans or heathens. It is submitted
thatSection 125 CrPC is part of the Code of Criminal Procedure and not a civil law, which
defines and governs rights and obligations of the parties belonging to a particular religion like
the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section
125 CrPC, it is submitted, was enacted in order to provide a quick and summary remedy. The
basis there being, neglect by a person of sufficient means to maintain these and the inability of
these persons to maintain themselves, these provisions have been made and the moral edict of
the law and morality cannot be clubbed with religion.
3. The argument is that the rationale of Section 125 CrPC is to off- set or to meet a situation where
a divorced wife is likely to be led into destitution or vagrancy. Section 125 CrPC is enacted to
prevent the same in furtherance of the concept of social justice embodied in Article 21 of the
Constitution.
4. It is, therefore, submitted that this Court will have to examine the questions raised before us
not on the basis of Personal Law but on the basis that Section 125 CrPC is a provision made
in respect of women belonging to all religions and exclusion of Muslim women from the same
results in discrimination between women and women. Apart from the gender injustice caused
in the country, this discrimination further leads to a monstrous proposition of nullifying a law
declared by this Court in Shah Banos case. Thus there is a violation of not only equality before
law but also equal protection of laws and inherent infringement of Article 21 as well as basic
human values. If the object of Section 125 CrPC is to avoid vagrancy, the remedy thereunder
cannot be denied to Muslim women.
5. The Act is an un-islamic, unconstitutional and it has the potential of suffocating the muslim
women and it undermines the secular character, which is the basic feature of the Constitution;
that there is no rhyme or reason to deprive the muslim women from the applicability of
the provisions of Section 125 CrPC and consequently, the present Act must be held to be
discriminatory and violative of Article 14 of the Constitution; that excluding the application
ofSection 125 CrPC is violative of Articles 14 and 21 of the Constitution; that the conferment of
power on the Magistrate under sub-section (2) of Section 3 and Section 4 of the Act is different
page no. | 308 |
Danial Latifi & Anr versus Union Of India
from the right of a muslim woman like any other woman in the country to avail of the remedies
under Section 125 CrPC and such deprivement would make the Act unconstitutional, as there
is no nexus to deprive a muslim woman from availing of the remedies available under Section
125CrPC, notwithstanding the fact that the conditions precedent for availing of the said remedies
are satisfied.
The learned Solicitor General, who appeared for the Union of India, submitted that when a question of
maintenance arises which forms part of the personal law of a community, what is fair and reasonable
is a question of fact in that context. Under Section 3 of the Act, it is provided that a reasonable and fair
provision and maintenance to be made and paid by her former husband within the iddat period would
make it clear that it cannot be for life but would only be for a period of iddat and when that fact has
clearly been stated in the provision, the question of interpretation as to whether it is for life or for the
period of iddat would not arise. Challenge raised in this petition is dehors the personal law. Personal
law is a legitimate basis for discrimination, if at all, and, therefore, does not offend Article 14 of the
Constitution. If the legislature, as a matter of policy, wants to apply Section 125 CrPC to Muslims, it
could also be stated that the same legislature can, by implication, withdraw such application and make
some other provision in that regard. Parliament can amend Section 125 CrPC so as to exclude them
and apply personal law and the policy of Section 125 CrPC is not to create a right of maintenance
dehors the personal law. He further submitted that in Shah Banos case, it has been held that a divorced
woman is entitled to maintenance even after the iddat period from the husband and that is how
Parliament also understood the ratio of that decision. To overcome the ratio of the said decision, the
present Act has been enacted and Section 3(1)(a) is not in discord with the personal law.
Shri Y.H.Muchhala, learned Senior Advocate appearing for the All India Muslim Personal Law Board,
submitted that the main object of the Act is to undo the Shah Banos case. He submitted that this Court
has harzarded interpretation of an unfamiliar language in relation to religious tenets and such a course
is not safe as has been made clear by Aga Mahomed Jaffer Bindaneem vs. Koolsom Bee Bee & Ors.,
24 IA 196, particularly in relation to Suras 241 and 242 Chapter II, the Holy Quran.. He submitted
that in interpreting Section 3(1)(a) of the Act, the expressions provision and maintenance are clearly
the same and not different as has been held by some of the High Courts. He contended that the aim
of the Act is not to penalise the husband but to avoid vagrancy and in this context Section 4 of the
Act is good enough to take care of such a situation and he, after making reference to several works on
interpretation and religious thoughts as applicable to Muslims, submitted that social ethos of Muslim
society spreads a wider net to take care of a Muslim divorced wife and not at all dependent on the
husband. He adverted to the works of religious thoughts by Sir Syed Ahmad Khan and Bashir Ahmad,
published from Lahore in 1957 at p. 735. He also referred to the English translation of the Holy Quran
to explain the meaning of gift in Sura 241. In conclusion, he submitted that the interpretation to be
placed on the enactment should be in consonance with the Muslim personal law and also meet a
situation of vagrancy of a Muslim divorced wife even when there is a denial of the remedy provided
underSection 125 CrPC and such a course would not lead to vagrancy since provisions have been
made in the Act. This Court will have to bear in mind the social ethos of Muslims, which are different
and the enactment is consistent with law and justice.
It was further contended on behalf of the respondents that the Parliament enacted the impugned Act,
respecting the personal law of muslims and that itself is a legitimate basis for making a differentiation;
that a separate law for a community on the basis of personal law applicable to such community, cannot
be held to be discriminatory; that the personal law is now being continued by a legislative enactment
page no. | 309 |
landmark judgments of supreme court of india on Maintenance & ALIMONY
and the entire policy behind the Act is not to confer a right of maintenance, unrelated to the personal
law; that the object of the Act itself was to preserve the personal law and prevent inroad into the same;
that the Act aims to prevent the vagaries and not to make a muslim woman, destitute and at the same
time, not to penalise the husband; that the impugned Act resolves all issues, bearing in mind the
personal law of muslim community and the fact that the benefits of Section 125 CrPC have not been
extended to muslim women, would not necessarily lead to a conclusion that there is no provision to
protect the muslim women from vagaries and from being a destitute; that therefore, the Act is not
invalid or unconstitutional.
On behalf of the All India Muslim Personal Law Board, certain other contentions have also been
advanced identical to those advanced by the other authorities and their submission is that the
interpretation placed on the Arabic word mata by this Court in Shah Banos case is incorrect and
submitted that the maintenance which includes the provision for residence during the iddat period is
the obligation of the husband but such provision should be construed synonymously with the religious
tenets and, so construed, the expression would only include the right of residence of a Muslim divorced
wife during iddat period and also during the extended period under Section 3(1)(a) of the Act and
thus reiterated various other contentions advanced on behalf of others and they have also referred to
several opinions expressed in various text books, such as, -
1. The Turjuman al-Quran by Maulana Abul Kalam Azad, translated into English by Dr. Syed
Abdul Latif;
2. Persian Translation of the Quran by Shah Waliullah Dahlavi
3. Al-Manar Commentary on the Quran (Arabic);
4. Al-Isaba by Ibne Hajar Asqualani [Part-2]; Siyar Alam-in-Nubla by Shamsuddin Mohd. Bin
Ahmed BinUsman Az-Zahbi;
5. Al-Maratu Bayn Al-Fiqha Wa Al Qanun by Dr. Mustafa As- Sabai;
6. Al-Jamil ahkam-il Al-Quran by Abu Abdullah Mohammad Bin Ahmed Al Ansari Al-Qurtubi;
7. Commentary on the Quran by Baidavi (Arabic);
8. Rooh-ul-Bayan (Arabic) by Ismail Haqqi Affendi;
9. Al Muhalla by Ibne Hazm (Arabic);
10. Al-Ahwalus Shakhsiah (the Personal Law) by Mohammad abu Zuhra Darul Fikrul Arabi.
On the basis of the aforementioned text books, it is contended that the view taken in Shah Banos case
on the expression mata is not correct and the whole object of the enactment has been to nullify the
effect of the Shah Banos case so as to exclude the application of the provision ofSection 125 CrPC,
however, giving recognition to the personal law as stated in Sections 3 and 4 of the Act. As stated
earlier, the interpretation of the provisions will have to be made bearing in mind the social ethos of
the Muslim and there should not be erosion of the personal law.
[On behalf of the Islamic Shariat Board, it is submitted that except for Mr. M. Asad and Dr. Mustafa-
as-Sabayi no author subscribed to the view that the Verse 241 of Chapter II of the Holy Quran casts
an obligation on a former husband to pay maintenance to the Muslim divorced wife beyond the iddat
period. It is submitted that Mr. M. Asads translation and commentary has been held to be unauthentic
and unreliable and has been subscribed by the Islamic World League only. It is submitted that Dr.
Mustafa-as-Sabayi is a well-known author in Arabic but his field was history and literature and not the
Muslim law. It was submitted that neither are they the theologists nor jurists in terms of Muslim law.
It is contended that this Court wrongly relied upon Verse 241 of Chapter II of the Holy Quran and the
page no. | 310 |
Danial Latifi & Anr versus Union Of India
decree in this regard is to be referred to Verse 236 of Chapter II which makes paying mata as obligatory
for such divorcees who were not touched before divorce and whose Mahr was not stipulated. It is
submitted that such divorcees do not have to observe iddat period and hence not entitled to any
maintenance. Thus the obligation for mata has been imposed which is a one time transaction related
to the capacity of the former husband. The impugned Act has no application to this type of case. On
the basis of certain texts, it is contended that the expression mata which according to different schools
of Muslim law, is obligatory only in typical case of a divorce before consummation to the woman
whose mahr was not stipulated and deals with obligatory rights of maintenance for observing iddat
period or for breast-feeding the child. Thereafter, various other contentions were raised on behalf of
the Islamic Shariat Board as to why the views expressed by different authors should not be accepted.
Dr. A.M.Singhvi, learned Senior Advocate who appeared for the National Commission for Women,
submitted that the interpretation placed by the decisions of the Gujarat, Bombay, Kerala and the minority
view of the Andhra Pradesh High Courts should be accepted by us. As regards the constitutional
validity of the Act, he submitted that if the interpretation of Section 3 of the Act as stated later in the
course of this judgment is not acceptable then the consequence would be that a Muslim divorced wife
is permanently rendered without remedy insofar as her former husband is concerned for the purpose
of her survival after the iddat period. Such relief is neither available under Section 125 CrPC nor is it
properly compensated by the provision made in Section 4 of the Act. He contended that the remedy
provided under Section 4 of the Act is illusory inasmuch as firstly, she cannot get sustenance from the
parties who were not only strangers to the marital relationship which led to divorce; secondly, wakf
boards would usually not have the means to support such destitute women since they are themselves
perennially starved of funds and thirdly, the potential legatees of a destitute woman would either be
too young or too old so as to be able to extend requisite support. Therefore, realistic appreciation
of the matter will have to be taken and this provision will have to be decided on the touch stone of
Articles 14, 15 and alsoArticle 21 of the Constitution and thus the denial of right to life and liberty
is exasperated by the fact that it operates oppressively, unequally and unreasonably only against one
class of women. While Section 5 of the Act makes the availability and applicability of the remedy as
provided bySection 125 CrPC dependent upon the whim, caprice, choice and option of the husband of
the Muslim divorcee who in the first place is sought to be excluded from the ambit of Section 3 of the
post-iddat period and, therefore, submitted that this provision will have to be held unconstitutional.
This Court in Shah Banos case held that although Muslim personal law limits the husbands liability to
provide maintenance for his divorced wife to the period of iddat, it does not contemplate a situation
envisaged by Section 125 CrPC of 1973. The Court held that it would not be incorrect or unjustified
to extend the above principle of Muslim Law to cases in which a divorced wife is unable to maintain
herself and, therefore, the Court came to the conclusion that if the divorced wife is able to maintain
herself the husbands liability ceases with the expiration of the period of iddat, but if she is unable to
maintain herself after the period of iddat, she is entitled to recourse to Section 125 CrPC. This decision
having imposed obligations as to the liability of Muslim husband to pay maintenance to his divorced
wife, Parliament endorsed by the Act the right of a Muslim woman to be paid maintenance at the time
of divorce and to protect her rights.
The learned counsel have also raised certain incidental questions arising in these matters to the
following effect-
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landmark judgments of supreme court of india on Maintenance & ALIMONY
1) Whether the husband who had not complied with the orders passed prior to the enactments
and were in arrears of payments could escape from their obligation on the basis of the Act, or in
other words, whether the Act is retrospective in effect?
2) Whether Family Courts have jurisdiction to decide the issues under the Act?
3) What is the extent to which the Wakf Board is liable under the Act?
The learned counsel for the parties have elaborately argued on a very wide canvass. Since we are only
concerned in this Bench with the constitutional validity of the provisions of the Act, we will consider
only such questions as are germane to this aspect. We will decide only the question of constitutional
validity of the Act and relegate the matters when other issues arise to be dealt with by respective
Benches of this Court either in appeal or special leave petitions or writ petitions.
In interpreting the provisions where matrimonial relationship is involved, we have to consider the
social conditions prevalent in our society. In our society, whether they belong to the majority or
the minority group, what is apparent is that there exists a great disparity in the matter of economic
resourcefulness between a man and a woman. Our society is male dominated both economically and
socially and women are assigned, invariably, a dependant role, irrespective of the class of society to
which she belongs. A woman on her marriage very often, though highly educated, gives up her all
other avocations and entirely devotes herself to the welfare of the family, in particular she shares with
her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her
entire life a sacramental sacrifice of her individual self and is far too enormous to be measured in
terms of money. When a relationship of this nature breaks up, in what manner we could compensate
her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small
solace to say that such a woman should be compensated in terms of money towards her livelihood
and such a relief which partakes basic human rights to secure gender and social justice is universally
recognised by persons belonging to all religions and it is difficult to perceive that Muslim law intends
to provide a different kind of responsibility by passing on the same to those unconnected with the
matrimonial life such as the heirs who were likely to inherit the property from her or the wakf boards.
Such an approach appears to us to be a kind of distortion of the social facts. Solutions to such societal
problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and
decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be
decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial
or communal constraints. Bearing this aspect in mind, we have to interpret the provisions of the Act
in question.
Now it is necessary to analyse the provisions of the Act to understand the scope of the same. The
Preamble to the Act sets out that it is an Act to protect the rights of Muslim women who have been
divorced by, or have obtained divorce from, their husbands and to provide for matters connected
therewith or incidental thereto. A divorced woman is defined under Section 2(a) of the Act to mean
a divorced woman who was married according to Muslim Law, and has been divorced by, or has
obtained divorce from her husband in accordance with Muslim Law; iddat period is defined under
Section 2(b) of the Act to mean, in the case of a divorced woman,-
(i) three menstrual courses after the date of divorce, if she is subject to menstruation;
(ii) three lunar months after her divorce, if she is not subject to menstruation; and
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Danial Latifi & Anr versus Union Of India
(iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of
her child or the termination of her pregnancy whichever is earlier. Sections 3 and 4 of the Act are
the principal sections, which are under attack before us. Section 3 opens up with a non-obstante
clause overriding all other laws and provides that a divorced woman shall be entitled to -
(a) a reasonable and fair provision and maintenance to be made and paid to her within the
period of iddat by her former husband;
(b) where she maintains the children born to her before or after her divorce, a reasonable
provision and maintenance to be made and paid by her former husband for a period of
two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to Muslim Law; and
(d) all the properties given to her by her before or at the time of marriage or after the marriage
by her relatives, friends, husband and any relatives of the husband or his friends.
Where such reasonable and fair provision and maintenance or the amount of mahr or dower due
has not been made and paid or the properties referred to in clause (d) of sub-section (1) have not
been delivered to a divorced woman on her divorce, she or any one duly authorised by her may,
on her behalf, make an application to a Magistrate for an order for payment of such provision and
maintenance, mahr or dower or the delivery of properties, as the case may be. Rest of the provisions of
Section 3 of the Act may not be of much relevance, which are procedural in nature.
Section 4 of the Act provides that, with an overriding clause as to what is stated earlier in the Act or
in any other law for the time being in force, where the 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. If any of the relatives do not have the necessary means to pay the same, the Magistrate may
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. Where a divorced woman is unable to maintain herself and she
has no relatives as mentioned in sub-section (1) or such relatives or any one of them has 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, functioning in the area in which the divorced woman resides, to pay such
maintenance as determined by him as the case may be. It is, however, significant to note thatSection 4
of the Act refers only to payment of maintenance and does not touch upon the provision to be made
by the husband referred to in Section 3(1)(a) of the Act.
Section 5 of the Act provides for option to be governed by the provisions of Sections 125 to 128CrPC.
It lays down that if, on the date of the first hearing of the application under Section 3(2), a divorced
woman and her former husband declare, by affidavit or any other declaration in writing in such form as
may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions
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landmark judgments of supreme court of india on Maintenance & ALIMONY
of Sections 125 to 128 CrPC, and file such affidavit or declaration in the court hearing the application,
the Magistrate shall dispose of such application accordingly.
A reading of the Act will indicate that it codifies and regulates the obligations due to a Muslim woman
divorcee by putting them outside the scope of Section 125 CrPC as the divorced woman has been
defined as Muslim woman who was married according to Muslim law and has been divorced by or has
obtained divorce from her husband in accordance with the Muslim law. But the Act does not apply to
a Muslim woman whose marriage is solemnized either under the Indian Special Marriage Act, 1954 or
a Muslim woman whose marriage was dissolved either underIndian Divorce Act, 1969 or the Indian
Special Marriage Act, 1954. The Act does not apply to the deserted and separated Muslim wives. The
maintenance under the Act is to be paid by the husband for the duration of the iddat period and this
obligation does not extend beyond the period of iddat. Once the relationship with the husband has
come to an end with the expiry of the iddat period, the responsibility devolves upon the relatives of the
divorcee. The Act follows Muslim personal law in determining which relatives are responsible under
which circumstances. If there are no relatives, or no relatives are able to support the divorcee, then the
Court can order the State Wakf Boards to pay the maintenance.
Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her husband, a
reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under
Section 3(2) the Muslim divorcee can file an application before a Magistrate if the former husband has
not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered
the properties given to her before or at the time of marriage by her relatives, or friends, or the husband
or any of his relatives or friends. Section 3(3) provides for procedure wherein the Magistrate can pass
an order directing the former husband to pay such reasonable and fair provision and maintenance to
the divorced woman as he may think fit and proper having regard to the needs of the divorced woman,
standard of life enjoyed by her during her marriage and means of her former husband. The judicial
enforceability of the Muslim divorced womans right to provision and maintenance under Section
(3)(1)(a) of the Act has been subjected to the condition of husband having sufficient means which,
strictly speaking, is contrary to the principles of Muslim law as the liability to pay maintenance during
the iddat period is unconditional and cannot be circumscribed by the financial means of the husband.
The purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding
payment of maintenance to his erstwhile wife after divorce and the period of iddat.
A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to
a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that
the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word
provision indicates that something is provided in advance for meeting some needs. In other words,
at the time of divorce the Muslim husband is required to contemplate the future needs and make
preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may
include provision for her residence, her food, her cloths, and other articles. The expression within
should be read as during or for and this cannot be done because words cannot be construed contrary
to their meaning as the 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 inSection 3(3) but no where the Parliament
has provided that reasonable and fair provision and maintenance is limited only for the iddat period
page no. | 314 |
Danial Latifi & Anr versus Union Of India
and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a
second time.
The important section in the Act is Section 3 which provides that divorced woman is entitled to obtain
from her former husband maintenance, provision and mahr, and to recover from his possession her
wedding presents and dowry and authorizes the magistrate to order payment or restoration of these
sums or properties. The crux of the matter is that the divorced woman shall be entitled to a reasonable
and fair provision and maintenance to be made and paid to her within the iddat period by her former
husband. The wordings of Section 3 of the Act appear to indicate that the husband has two separate
and distinct obligations : (1) to make a reasonable and fair provision for his divorced wife; and (2)
to provide maintenance for her. The emphasis of this section is not on the nature or duration of any
such provision or maintenance, but on the time by which an arrangement for payment of provision
and maintenance should be concluded, namely, within the iddat period. If the provisions are so read,
the Act would exclude from liability for post-iddat period maintenance to a man who has already
discharged his obligations of both reasonable and fair provision and maintenance by paying these
amounts in a lump sum to his wife, in addition to having paid his wifes mahr and restored her dowry
as per Section 3(1)(c) and3(1)(d) of the Act. Precisely, the point that arose for consideration in Shah
Banos case was that the husband has not made a reasonable and fair provision for his divorced wife
even if he had paid the amount agreed as mahr half a century earlier and provided iddat maintenance
and he was, therefore, ordered to pay a specified sum monthly to her under Section 125 CrPC. This
position was available to Parliament on the date it enacted the law but even so, the provisions enacted
under the Act are a reasonable and fair provision and maintenance to be made and paid as provided
under Section 3(1)(a) of the Act and these expressions cover different things, firstly, by the use of
two different verbs to be made and paid to her within the iddat period, it is clear that a fair and
reasonable provision is to be made while maintenance is to be paid; secondly, Section 4of the Act,
which empowers the magistrate to issue an order for payment of maintenance to the divorced woman
against various of her relatives, contains no reference to provision. Obviously, the right to have a fair
and reasonable provision in her favour is a right enforceable only against the womans former husband,
and in addition to what he is obliged to pay as maintenance; thirdly, the words of the Holy Quran, as
translated by Yusuf Ali of mata as maintenance though may be incorrect and that other translations
employed the word provision, this Court in Shah Banos case dismissed this aspect by holding that it
is a distinction without a difference. Indeed, whether mata was rendered maintenance or provision,
there could be no pretence that the husband in Shah Banos case had provided anything at all by way
of mata to his divorced wife. The contention put forth on behalf of the other side is that a divorced
Muslim woman who is entitled to mata is only a single or one time transaction which does not mean
payment of maintenance continuously at all. This contention, apart from supporting the view that
the word provision inSection 3(1)(a) of the Act incorporates mata as a right of the divorced Muslim
woman distinct from and in addition to mahr and maintenance for the iddat period, also enables a
reasonable and fair provision and a reasonable and fair provision as provided under Section 3(3) of
the Act would be with reference to the needs of the divorced woman, the means of the husband, and
the standard of life the woman enjoyed during the marriage and there is no reason why such provision
could not take the form of the regular payment of alimony to the divorced woman, though it may look
ironical that the enactment intended to reverse the decision in Shah Banos case, actually codifies the
very rationale contained therein.
A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided
in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling
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those who can do so to support those who are unable to support themselves and who have a normal
and legitimate claim to support is satisfied. If that is so, the argument of the petitioners that a different
scheme being provided under the Act which is equally or more beneficial on the interpretation placed
by us from the one provided under the Code of Criminal Procedure deprive them of their right loses
its significance. The object and scope of Section 125CrPC is to prevent vagrancy by compelling those
who are under an obligation to support those who are unable to support themselves and that object
being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.
Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted
and even otherwise, the Magistrate has been conferred with the power to make appropriate provision
for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125 CrPC
would now be granted under the very Act itself. This being the position, the Act cannot be held to be
unconstitutional.
As on the date the Act came into force the law applicable to Muslim divorced women is as declared
by this Court in Shah Banos case. In this case to find out the personal law of Muslims with regard to
divorced womens rights, the starting point should be Shah Banos case and not the original texts or
any other material all the more so when varying versions as to the authenticity of the source are shown
to exist. Hence, we have refrained from referring to them in detail. That declaration was made after
considering the Holy Quran, and other commentaries or other texts. When a Constitution Bench of
this Court analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant textual material,
we do not think, it is open for us to re-examine that position and delve into a research to reach another
conclusion. We respectfully abide by what has been stated therein. All that needs to be considered is
whether in the Act specific deviation has been made from the personal laws as declared by this Court
in Shah Banos case without mutilating its underlying ratio. We have carefully analysed the same and
come to the conclusion that the Act actually and in reality codifies what was stated in Shah Banos
case. The learned Solicitor General contended that what has been stated in the Objects and Reasons in
Bill leading to the Act is a fact and that we should presume to be correct. We have analysed the facts
and the law in Shah Banos case and proceeded to find out the impact of the same on the Act. If the
language of the Act is as we have stated, the mere fact that the Legislature took note of certain facts in
enacting the law will not be of much materiality.
In Shah Banos case this Court has clearly explained as to the rationale behind Section 125 CrPC to make
provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy
or destitution on the part of a Muslim woman. The contention put forth on behalf of the Muslims
organisations who are interveners before us is that under the Act vagrancy or destitution is sought
to be avoided but not by punishing the erring husband, if at all, but by providing for maintenance
through others. If for any reason the interpretation placed by us on the language ofSections 3(1)(a)
and 4 of the Act is not acceptable, we will have to examine the effect of the provisions as they stand,
that is, a Muslim woman will not be entitled to maintenance from her husband after the period of
iddat once the Talaq is pronounced and, if at all, thereafter maintenance could only be recovered
from the various persons mentioned in Section 4 or from the Wakf Board. This Court in Olga Tellis
v. Bombay Municipal Corporation, 1985(3) SCC 545, and Maneka Gandhi v. Union of India, 1978
(1) SCC 248, held that the concept of right to life and personal liberty guaranteed under Article 21
of the Constitution would include the right to live with dignity. Before the Act, a Muslim woman
who was divorced by her husband was granted a right to maintenance from her husband under the
provisions of Section 125 CrPC until she may re-marry and such a right, if deprived, would not be
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Danial Latifi & Anr versus Union Of India
reasonable, just and fair. Thus the provisions of the Act depriving the divoced Muslim women of
such a right to maintenance from her husband and providing for her maintenance to be paid by the
former husband only for the period of iddat and thereafter to make her run from pillar to post in
search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board
does not appear to be reasonable and fair substitute of the provisions of Section 125 CrPC. Such
deprivation of the divorced Muslim women of their right to maintenance from their former husbands
under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all
other women in India cannot be stated to have been effected by a reasonable, right, just and fair law
and, if these provisions are less beneficial than the provisions of Chapter IX of the Code of Criminal
Procedure, a divorced Muslim woman has obviously been unreasonably discriminated and got out of
the protection of the provisions of the general law as indicated under the Code which are available to
Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any other community. The
provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating
equality and equal protection of law to all persons otherwise similarly circumstanced and also violative
of Article 15 of the Constitution which prohibits any discrimination on the ground of religion as
the Act would obviously apply to Muslim divorced women only and solely on the ground of their
belonging to the Muslim religion. It is well settled that on a rule of construction a given statute will
become ultra vires or unconstitutional and, therefore, void, whereas another construction which is
permissible, the statute remains effective and operative the court will prefer the latter on the ground
that Legislature does not intend to enact unconstitutional laws. We think, the latter interpretation
should be accepted and, therefore, the interpretation placed by us results in upholding the validity of
the Act. It is well settled that when by appropriate reading of an enactment the validity of the Act can
be upheld, such interpretation is accepted by courts and not the other way.
The learned counsel appearing for the Muslim organisations contended after referring to various
passages from the text books to which we have adverted to earlier to state that the law is very clear that
a divorced Muslim woman is entitled to maintenance only upto the stage of iddat and not thereafter.
What is to be provided by way of Mata is only a benevolent provision to be made in case of divorced
Muslim woman who is unable to maintain herself and that too by way of charity or kindness on the
part of her former husband and not as a result of her right flowing to the divorced wife. The effect of
various interpretations placed on Suras 241 and 242 of Chapter 2 of Holy Quran has been referred
to in Shah Banos case. Shah Banos case clearly enunciated what the present law would be. It made a
distinction between the provisions to be made and the maintenance to be paid. It was noticed that the
maintenance is payable only upto the stage of iddat and this provision is applicable in case of a normal
circumstances, while in case of a divorced Muslim woman who is unable to maintain herself, she is
entitled to get Mata. That is the basis on which the Bench of Five Judges of this Court interpreted
the various texts and held so. If that is the legal position, we do not think, we can state that any other
position is possible nor are we to start on a clean slate after having forgotten the historical background
of the enactment. The enactment though purports to overcome the view expressed in Shah Banos case
in relation to a divorced Muslim woman getting something by way of maintenance in the nature of
Mata is indeed the statutorily recognised by making provision under the Act for the purpose of the
maintenance but also for provision. When these two expressions have been used by the enactment,
which obviously means that the Legislature did not intend to obliterate the meaning attributed to these
two expressions by this Court in Shah Banos case. Therefore, we are of the view that the contentions
advanced on behalf of the parties to the contrary cannot be sustained.
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In Arab Ahemadhia Abdulla and etc vs. Arab Bail Mohmuna Saiyadbhai & Ors. etc., AIR 1988 (Guj.)
141; Ali vs. Sufaira, (1988) 3 Crimes 147; K. Kunhashed Hazi v. Amena, 1995 Crl.L.J. 3371;K. Zunaideen
v. Ameena Begum, (1998] II DMC 468; Karim Abdul Shaik v. Shenaz Karim Shaik, 2000 Cr.L.J. 3560
and Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh & Anr., 1999 (3) Mh.L.J. 694, while
interpreting the provision of Sections 3(1)(a) and 4 of the Act, it is held that a divorced Muslim woman
is entitled to a fair and reasonable provision for her future being made by her former husband which
must include maintenance for future extending beyond the iddat period. It was held that the liability
of the former husband to make a reasonable and fair provision under Section 3(1)(a) of the Act is not
restricted only for the period of iddat but that divorced Muslim woman is entitled to a reasonable and
fair provision for her future being made by her former husband and also to maintenance being paid to
her for the iddat period. A lot of emphasis was laid on the words made and paid and were construed to
mean not only to make provision for the iddat period but also to make a reasonable and fair provision
for her future. A Full Bench of the Punjab and Haryana High Court in Kaka v. Hassan Bano & Anr.,
II (1998) DMC 85 (FB), has taken the view that under Section 3(1)(a) of the Act a divorced Muslim
woman can claim maintenance which is not restricted to iddat period. To the contrary it has been held
that it is not open to the wife to claim fair and reasonable provision for the future in addition to what
she had already received at the time of her divorce; that the liability of the husband is limited for the
period of iddat and thereafter if she is unable to maintain herself, she has to approach her relative or
Wakf Board, by majority decision in Umar Khan Bahamami v. Fathimnurisa, 1990 Cr.L.J. 1364; Abdul
Rashid v. Sultana Begum, 1992 Cr.L.J. 76; Abdul Haq v. Yasima Talat; 1998 Cr.L.J. 3433; Md. Marahim
v. Raiza Begum, 1993 (1) DMC 60. Thus preponderance of judicial opinion is in favour of what we
have concluded in the interpretation of Section 3 of the Act. The decisions of the High Courts referred
to herein that are contrary to our decision stand overruled.
While upholding the validity of the Act, we may sum up our conclusions:
1) a Muslim husband is liable to make reasonable and fair provision for the future of the divorced
wife which obviously includes her maintenance as well. Such a reasonable and fair provision
extending beyond the iddat period must be made by the husband within the iddat period in
terms of Section 3(1)(a) of the Act.
2) 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.
3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after
iddat period can proceed as provided under Section 4 of the Act against her relatives who are
liable to maintain her in proportion to the properties which they inherit on her death according
to Muslim law from such divorced woman including her children and parents. If any of the
relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board
established under the Act to pay such maintenance.
4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
In the result, the writ petition Nos. 868/86, 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86 and
1281/86 challenging the validity of the provisions of the Act are dismissed.
All other matters where there are other questions raised, the same shall stand relegated for consideration
by appropriate Benches of this Court.
qqq
page no. | 318 |
Ramesh Chander Kaushal versus Veena Kaushal & Ors
Ramesh Chander Kaushal versus Veena Kaushal & Ors
Supreme Court of India
Bench: Hon’ble Mr. Justice V.R. Krishnaiyer & Hon’ble Mr. Justice D.A. Desai
Ramesh Chander Kaushal
Versus
Veena Kaushal & Ors.
(1978) 4 SCC 70
Equivalent citations: 1978 AIR 1807, 1978 SCR (3) 782
Decided on : 27th April, 1978
We cannot help but observe that the current Indian ethos rightly regards the family and
its stability as basic to the strength of the social fabric and the erotic doctrine of ‘sip every
flower and change every hour’ and the philosophy of philandering self-fulfilment, unless
combated on the militant basis of gender justice and conditions of service, are fraught with
catastrophic possibilities. All public sector (why, private sector too) institutions, including
the Airlines, must manifest, in their codes of discipline, this consciousness of social justice
and inner morality as essential to its life style. Lascivious looseness of man or wife is an
infectious disease and marks the beginning of the end of the material and spiritual meaning
of collective life. The roots of the rule of law lie deep in the collective consciousness of a
community and this sociological factor has a role to play in understanding provisions like
Section 125 Criminal Procedure Code which seek to inhibit neglect of women and children,
the old and the Infirm. A facet of this benignancy of Section 125 falls for study in the present
proceeding.
A final determination of a civil right by a civil court must prevail against a like decision by
a criminal court. But here two factors make the principle inapplicable.
Firstly, the direction by the civil court is not a final determination under the Hindu Adoptions
and Maintenance Act but an order pendente lite, Under Section 24 of the Hindu Marriage
Act to pay the expenses of the proceeding, and monthly during the proceeding such sum
as, having regard to the petitioner’s own income and the income of the respondent, it may
seem to the court to be reasonable.
Secondly, this amount does not include the claim for maintenance of the children although
the order does advert to the fact that the respondent has their custody. This incidental
direction is no comprehensive adjudication.
The relevant portion of the section reads :
125. (i) If any person having sufficient means neglects or refuses to maintain
(a) his wife, unable to maintain herself, or
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landmark judgments of supreme court of india on Maintenance & ALIMONY
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or 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.”
This provision is a measure of social justice and specially enacted to protect women and
children and falls within the constitutional sweep of Article 15(3) reinforced by Article
39. We have no doubt that sections of statutes calling for construction by Courts are not
petrified print but vibrant words with social functions to fulfil. The brooding presence of
the constitutional empathy for the weaker sections like women and children must inform
interpretation if it has to have social relevance. So viewed, it is possible to be selective in
picking out that interpretation out of two alternatives which advance the causethe cause
of the derelicts.
The judgment would seem to indicate that once divorce is decreed the wife ceases to
have any right to claim maintenance and that such an impact can be brought about by
an application Under Section 127 of the Code. It is clear that this conclusion contradicts
the express statutory provision. The advocates on both sides agree that this is a patent
error and further agree that the law may be correctly stated and the contradiction with the
statute eliminated.
JUDGMENT
CRIMINAL APPELLATE JURISDICTION : Special Leave Petition (Criminal) No. 1268 of 1977.
From the Judgment and Order dated 5-9-1977 of the Delhi High Court in Criminal Revision No. 224
of 1977. S. T. Desai and R. Bana for the Petitioner. Y. M. Isser, S. Balakrishnan and M. K. D. Namboodri
for the Respondent.
The Order of the Court was delivered by KRISHNA IYER, J.-Social justice is not constitutional
claptrap but fighting faith which enlivens legislative texts with militant meaning. The points pressed
in the Special Leave Petition, which we negative, illustrate the functional relevance of social justice as
an aid to statutory interpretation.
The conjugal tribulations of Mrs. Veena, the respondent, who hopefully married Capt. Kaushal,
the petitioner, and bore two young children by him, form the tragic backdrop to this case. The wife
claimed that although her husband was affluent and once affectionate, his romantic tenderness
turned into flagellant tantrums after he took to the skies as pilot in the Indian Airlines Corporation.
Desertion, cruelty and break-up of family followed, that sombre scenario which, in its traumatic
frequency, flaring up even into macabre episodes consternates our urban societies. The offspring of
the young wedlock were not only two vernal innocents but two dismal litigations one for divorce, by
the husband, hurling charges of adultery, and the other for maintenance, by the wife, flinging charges
of affluent cruelty and diversion of affection after the Airlines assignment. These are versions, not
findings. We do not enter the distressing vicissitudes of this marital imbroglio since proceedings are
pending and incidental moralizing, unwittingly injuring one or the other party, are far from our intent
page no. | 320 |
Ramesh Chander Kaushal versus Veena Kaushal & Ors
and outside the orbit of the present petition. Even so, we cannot help but observe that the current
Indian ethos rightly regards the family and its stability as basic to the strength of the social fabric and
the erotic doctrine of ‘sip every flower and change every hour’ and the philosophy of philandering
self-fulfilment, unless combated on the militant basis of gender justice and conditions of service, are
fraught with catastrophic possibilities. AR public sector (why, private sector too) institutions, including
the Airlines, must manifest, in their codes of discipline, this consciousness of social justice and inner
morality as essential to its life style. Lascivious looseness of man or wife is an infectious disease and
marks the beginning of the end of the material and spiritual meaning of collective life. The roots of
the rule of law lie deep in the collective consciousness of a community and this sociological factor has
a role to play in understanding provisions like Section 125 Criminal Procedure Code which seek to
inhibit neglect of women and children, the old and the infirm. A facet of this benignancy ofSection
125 falls for study in the present proceeding.
The husband sought divorce through the civil court and the wife claimed maintenance through the
criminal Court. As an interim measure, the District Court awarded maintenance and the High Court
fixed the rate at 400/- per mensem for the spouse as a provisional figure. Meanwhile, the magistrate,
on the evidence before him, ordered ex-parte, monthly maintenance at Rs. 1000/- for the mother and
two children together.
Sri S. T. Desai urged two points which merit reflection but meet with rejection. They are that : (i) a
civil court’s determination of the quantum is entitled to serious weight and the criminal court, in its
summary decision, fell into an error in ignoring the former; (ii) the awardable maximum for mother
and children, as a whole under Section 125 of the Code was Rs. 500/- having regard to the text of
the section. Broadly stated and as an abstract proposition, it is valid to assert, as Sri Desai did, that a
final determination of a civil right by a civil court must prevail against a like decision by a criminal
court. But here two factors make the principle inapplicable. Firstly, the direction by the civil court is
not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente
lite, under section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly
during the proceeding such sum as, having regard to the petitioner’s own income and the income of
the respondent, it may seem to the court to be reasonable. Secondly, this amount does not include the
claim for maintenance of the children although the order does advert to the fact that the respondent
has their custody. This incidental direction is no comprehensive adjudication.
Therefore, barring marginal relevance for the Magistrate it does not bar his jurisdiction to award a
higher maintenance. We cannot, therefore, fault the Magistrate for giving Rs. 1000/- on this score.
The more important point turns on the construction of section 125, Crl. Procedure Code which is a
reincarnation of section 488 of the old Code except for the fact that parents also are brought into the
category of persons eligible for maintenance and legislative cognizance is taken of the devaluation of
the rupee and the escalation of living costs by raising the maximum allowance for maintenance from
Rs. 100/- to Rs. 500/-. The relevant portion of the section reads “125. (i) if any person having sufficient
means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or 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
page no. | 321 |
landmark judgments of supreme court of india on Maintenance & ALIMONY
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.”
This provision is a measure of social justice and specially enacted to protect women and children and
falls within the constitutional sweep of Article 15(3) reinforced by Article
39. We have no doubt that sections of statutes calling for construction by Courts are not petrified
print but vibrant words with social functions to fulfil. The brooding presence of the constitutional
empathy for the weaker sec- tions like women and children must inform interpretation if it has to have
social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two
alternatives which advance the cause he cause of the derelicts.
Sri Desai contends that section 125 of the Code has clearly fixed the ceiling of the monthly allowance
“for the maintenance of.... wife or such child, father or mother, at such monthly rate not exceeding five
hundred rupees in the whole”. Assuming the Parliament not to be guilty of redundancy it is argued that
the words “in the whole” mean that the total award- for wife, child, father or mother together cannot
exceed Rs. 500/-. We do not agree. Both precedentially and interpretatively the argument is specious.
The words which connote that the total, all together, cannot exceed Rs. 500/- namely “in the whole’
have been inherited from the previous Code although some ambiguity in the sense of the clause is
injected by these words. Clarity, unfortunately, has not been a strong point of our draftsmanship, at
least on occasions, and litigation has been engendered by such deficiency. Luckily, these words have
been subject to decisions which we are inclined to adopt as correct. A Full Bench of the Bombay High
Court in Prabhavati v. Sumatilal(1) has held that the sum specified is not compendious but separate.
Chagla C.J. explained the position correctly, if we may say so with respect :
“The suggestion that the jurisdiction of the Magistrate is limited to allowing one hundred rupees
in respect of maintenance of the wife and the children jointly is, in our opinion, an impossible
construction once it is accepted that the right of the wife and of each child is an independent right.
Such a construction would lead to extremely anomalous results.
If, for instance, a wife applies for maintenance for herself and for her children and the Magistrate allows
a maintenance of one hundred rupees, and if thereafter an (1) A.I.R. 1954 Bom. 546illegitimate child
were to come forward and to make an application for maintenance, the Magistrate having allowed an
allowance to her up to the maximum of his jurisdiction would be prevented from making any order
in favour of the illegitimate child. Or, a man may have more than one wife and he may have children
by each one of the wives. If the suggestion is that maintenance can be, allowed in a compendious
application to be made and such maintenance cannot exceed one hundred rupees for all the persons
applying for maintenance, then in a conceivable case a wife or a child may be deprived of maintenance
altogether under the section.
The intention of the Legislature was clear, and the intention was to cast an obligation upon a person
who neglects or refuses to maintain his wife or children to carry out his obligation towards his wife
or children. The obligation is separate and independent in relation to each one of the persons whom
he is bound in law to maintain. it is futile to suggest that in using the expression “in the whole”
the Legislature was limiting the jurisdiction of the Magistrate to passing an order in respect--Of all
the persons whom he is bound to maintain allowing them maintenance not exceeding a sum of one
hundred rupees.” Meeting the rival point of view Chief Justice Chagla held :
page no. | 322 |
Ramesh Chander Kaushal versus Veena Kaushal & Ors
“. . . . we are unable to accept the view taken by the Division Bench that the jurisdiction of the Magistrate
is confined to making a compendious order allowing one hundred rupees in respect of all the persons
liable to be maintained.”
A recent ruling of the Calcutta High Court in Md. Bashir v. Noon Jahan Begum(1) has taken a similar
view reviewing the case law in India on the subject. We agree with Talukdar, J. who quotes Mr. Justice
Macardie:
“All law must progress or it must perish in the esteem of man.”
In short the decided cases have made a sociological approach to, conclude that each claimant for
maintenance, be he or she wife, child, father or mother, is independently entitled to maintenance up
to a maximum of Rs. 500/-. Indeed, an opposite conclusion may lead to absurdity. If a woman has a
dozen children and if the man neglects the whole lot and, in his addiction to a fresh mistress, neglects
even his parents and all these members of the family seek maintenance in one petition against the
delinquent respondent, can it be, that the Court cannot- (1) 1971 Crl.L.J. 547@553.
award more than Rs. 500/- for all of them together ? On the other hand if each filed a separate petition
there would be a maximum of Rs. 500/- each awarded by the Court. We cannot, therefore, agree to this
obvious jurisdictional inequity by reading a limitation of Rs. 500/- although what the section plainly
means is that the Court cannot grant more than Rs. 500/- for each one of the claimants. “In the whole”
in the context means taking all the items of maintenance together, not all the members of the family
put together. To our mind, this interpretation accords with social justice and semantics and, more than
all, is obvious :
“It is sometimes more important to emphasize the obvious than to elucidate the obscure.”
-Attributed to Oliver Wendell Holmes.
We admit the marginal obscurity in the diction, of the section but mind creativity in interpreting the
provision dispels all doubts. We own that Judges perform a creative function even in interpretation.
“All the cases in this book are examples, greater or smaller, of this function”.
writes Prof. Griffith in the Politics of the Judiciary.(1) The conclusion is inevitable, although the
argument to the contrary is ingenious, that the Magistrate did not exceed his powers while awarding
Rs. 1000/- for mother and children all together.
We have been told by Shri S. T. Desai that the divorce pro- ceeding terminated adversely to his client
but an appeal is pending. If the appeal ends in divorce being decreed, the wife’s claim for maintenance
qua wife comes to an end and under section 127 of the Code the Magistrate has the power to make
alterations in the allowance order and cipherise it. We make the position clear lest confusion should
breed fresh litigation.
The special leave petition is dismissed.
ORDER (22-8-78) Noticing a patent error which has unfortunately crept in the above judgment in the
last paragraph thereof, counsel on both sides were given notice to appear and they were heard. Section
125(1), Explanation (b) of the Cr. P.C. reads “Wife” includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not remarried.” The last paragraph in the judgment
concludes with the statement “If the appeal ends in divorce being decreed, the wife’s claim for (1)
J.A.G. Griffith ‘The Politics of the Judiciary’ p. 175.
page no. | 323 |
landmark judgments of supreme court of india on Maintenance & ALIMONY
maintenance qua wife comes to an end and under section 127 of the Code, the Magistrate has the
power to make alterations in the allowance order and cipherise it.” The judgment would seem to
indicate that once divorce is decreed the wife ceases to have any right to, claim maintenance and
that such an impact can be brought about by an application u/S. 127 of the Code. It is clear that this
conclusion contradicts the express statutory provision. The advocates on both sides agree that this
is a patent error and further agree that the law may be correctly stated and the contradiction with
the statute eliminated. Therefore, we direct that in substitution of the last paragraph, the following
paragraph will be introduced. “We have been told by Shri S. T. Desai that the divorce proceeding has
terminated adversely to his client but that an appeal is pending: Whether the appeal ends in divorce
or no, the wife’s claim for maintenance qua wife under the definition contained in the Explanation (b)
to sec. 125 of the Code continues unless parties make adjustments and come to terms regarding the
quantum or the right to maintenance. We make the position clear that mere divorce does not end the
right to maintenance.”
We regret the error and pass this order under Art. 137 of the Constitution with the consent of both
sides so that the ends of justice and the law that this Court lays down may be vindicated.
S. R. Petition dismissed.
qqq
page no. | 324 |
LANDMARK JUDGMENTS ON
ADOPTION
SHABNAM HASHMI VERSUS UNION OF INDIA & ORS.
SHABNAM HASHMI VERSUS UNION OF INDIA & ORS.
Supreme Court of India
Bench: Hon’ble Mr. Justice P. Sathasivam, Hon’ble Mr. Justice Ranjan Gogoi &
Hon’ble Mr. Justice Shiva Kirti Singh
Shabnam Hashmi ... Petitioner(S)
Versus
Union of India & Ors. ... Respondent (S)
Writ Petition (Civil) No. 470 of 2005
[Arising out of Special Leave Petition
(Civil) No.12985 of 2016]
Decided on : 19th February, 2014
Recognition of the right to adopt and to be adopted as a fundamental right under Part-III of
the Constitution is the vision scripted by the public spirited individual who has moved this
Court under Article 32 of the Constitution.
There is an alternative prayer requesting the Court to lay down optional guidelines enabling
adoption of children by persons irrespective of religion, caste, creed etc. and further for a
direction to the respondent Union of India to enact an optional law the prime focus of which
is the child with considerations like religion etc. taking a hind seat.
The decision of this Court in Lakshmi Kant Pandey (supra) is a high watermark in the
development of the law relating to adoption. Dealing with inter-country adoptions,
elaborate guidelines had been laid by this Court to protect and further the interest of the
child. A regulatory body, i.e., Central Adoption Resource Agency (for short ‘CARA’) was
recommended for creation and accordingly set up by the Government of India in the year
1989. Since then, the said body has been playing a pivotal role, laying down norms both
substantive and procedural, in the matter of inter as well as in country adoptions. The said
norms have received statutory recognition on being notified by the Central Govt. under
Rule 33 (2) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and are
today in force throughout the country, having also been adopted and notified by several
states under the Rules framed by the states in exercise of the Rule making power under
Section 68 of the JJ Act, 2000.
The legislature which is better equipped to comprehend the mental preparedness of the
entire citizenry to think unitedly on the issue has expressed its view, for the present, by the
enactment of the JJ Act 2000 and the same must receive due respect. Conflicting view points
prevailing between different communities, as on date, on the subject makes the vision
contemplated by Article 44 of the Constitution i.e. a Uniform Civil Code a goal yet to be
fully reached and the Court is reminded of the anxiety expressed by it earlier with regard
page no. | 327 |
landmark judgments of supreme court of india on adoption
to the necessity to maintain restraint. All these impel us to take the view that the present
is not an appropriate time and stage where the right to adopt and the right to be adopted
can be raised to the status of a fundamental right and/or to understand such a right to be
encompassed by Article 21 of the Constitution
JUDGMENT
Hon’ble Mr. Justice Ranjan Gogoi :—
1. Recognition of the right to adopt and to be adopted as a fundamental right under Part-III of the
Constitution is the vision scripted by the public spirited individual who has moved this Court
under Article 32 of the Constitution. There is an alternative prayer requesting the Court to
lay down optional guidelines enabling adoption of children by persons irrespective of religion,
caste, creed etc. and further for a direction to the respondent Union of India to enact an optional
law the prime focus of which is the child with considerations like religion etc. taking a hind seat.
2. The aforesaid alternative prayer made in the writ petition appears to have been substantially
fructified by the march that has taken place in this sphere of law, gently nudged by the judicial
verdict in Lakshmi Kant Pandey Vs. Union of India1 and the supplemental, if not consequential,
legislative innovations in the shape of the Juvenile Justice (Care And Protection of Children)
Act, 2000 as amended in 2006 (hereinafter for short ‘the JJ Act, 2000) as also The Juvenile Justice
(Care and Protection of Children) Rules promulgated in the year 2007 (hereinafter for short ‘the
JJ Rules, 2007’).
3. The alternative prayer made in the writ petition may be conveniently dealt with at the outset. The
decision of this Court in Lakshmi Kant Pandey (supra) is a high watermark in the development
of the law relating to adoption. Dealing with inter-country adoptions, elaborate guidelines had
been laid by this Court to protect and further the interest of the child. A regulatory body, i.e.,
Central Adoption Resource Agency (for short ‘CARA’) was recommended for creation and
accordingly set up by the Government of India in the year 1989. Since then, the said body has
been playing a pivotal role, laying down norms both substantive and procedural, in the matter
of inter as well as in country adoptions. The said norms have received statutory recognition
on being notified by the Central Govt. under Rule 33 (2) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 and are today in force throughout the country, having also
been adopted and notified by several states under the Rules framed by the states in exercise of
the Rule making power under Section 68 of the JJ Act, 2000.
4. A brief outline of the statutory developments in the concerned sphere may now be sketched.
In stark contrast to the provisions of the JJ Act, 2000 in force as on date, the Juvenile Justice
Act, 1986 (hereinafter for short ‘the JJ Act, 1986’) dealt with only “neglected” and “delinquent
juveniles”. While the provisions of the 1986 Act dealing with delinquent juveniles are not relevant
for the present, all that was contemplated for a ‘neglected juvenile’ is custody in a juvenile home
or an order placing such a juvenile under the care of a parent, guardian or other person who
was willing to ensure his good behaviour during the period of observation as fixed by the
Juvenile Welfare Board. The JJ Act, 2000 introduced a separate chapter i.e. Chapter IV under
the head ‘Rehabilitation and Social Reintegration’ for a child in need of care and protection.
Such rehabilitation and social reintegration was to be carried out alternatively by adoption
or foster care or sponsorship or by sending the child to an after-care organization. Section 41
1 (1984) 2 SCC 244
page no. | 328 |
SHABNAM HASHMI VERSUS UNION OF INDIA & ORS.
contemplates adoption though it makes it clear that the primary responsibility for providing
care and protection to a child is his immediate family. Sections 42, 43 and 44 of the JJ Act,
2000 deals with alternative methods of rehabilitation namely, foster care, sponsorship and being
looked after by an after-care organisation.
5. The JJ Act, 2000, however did not define ‘adoption’ and it is only by the amendment of 2006 that
the meaning thereof came to be expressed in the following terms:
“2(aa)-“adoption” means the process through which the adopted child is permanently separated
from his biological parents and become the legitimate child of his adoptive parents with all the
rights, privileges and responsibilities that are attached to the relationship”
6. In fact, Section 41 of the JJ Act, 2000 was substantially amended in 2006 and for the first time
the responsibility of giving in adoption was cast upon the Court which was defined by the JJ
Rules, 2007 to mean a civil court having jurisdiction in matters of adoption and guardianship
including the court of the district judge, family courts and the city civil court. [Rule 33 (5)]
Substantial changes were made in the other sub-sections of Section 41 of the JJ Act, 2000. The
CARA, as an institution, received statutory recognition and so did the guidelines framed by it
and notified by the Central Govt. [Section 41(3)].
7. In exercise of the rule making power vested by Section 68 of the JJ Act, 2000, the JJ Rules, 2007
have been enacted. Chapter V of the said Rules deal with rehabilitation and social reintegration.
Under Rule 33(2) guidelines issued by the CARA, as notified by the Central Government under
Section 41 (3) of the JJ Act, 2000, were made applicable to all matters relating to adoption. It
appears that pursuant to the JJ Rules, 2007 and in exercise of the rule making power vested
by the JJ Act, 2000 most of the States have followed suit and adopted the guidelines issued by
CARA making the same applicable in the matter of adoption within the territorial boundaries
of the concerned State. Rules 33(3) and 33(4) of the JJ Rules, 2007 contain elaborate provisions
regulating pre-adoption procedure i.e. for declaring a child legally free for adoption. The Rules
also provide for foster care (including pre-adoption foster care) of such children who cannot be
placed in adoption & lays down criteria for selection of families for foster care, for sponsorship
and for being looked after by an aftercare organisation. Whatever the Rules do not provide for
are supplemented by the CARA guidelines of 2011 which additionally provide measures for post
adoption follow up and maintenance of data of adoptions.
8. It will now be relevant to take note of the stand of the Union of India. Way back on 15th May, 2006
the Union in its counter affidavit had informed the Court that prospective parents, irrespective
of their religious background, are free to access the provisions of the Act for adoption of children
after following the procedure prescribed. The progress on the ground as laid before the Court by
the Union of India through the Ministry of Women and Child Development (respondent No. 3
herein) may also be noticed at this stage. The Union in its written submission before the Court
has highlighted that at the end of the calendar year 2013 Child Welfare Committees (CWC) are
presently functioning in a total of 619 districts of the country whereas State Adoption Resource
Agencies (SARA) has been set up in 26 States/Union Territories; Adoption Recommendation
Committees (ARCs) have been constituted in 18 States/Union Territories whereas the number of
recognized adoption organisations in the country are 395. According to the Union the number
of reported adoptions in the country from January, 2013 to September, 2013 was 19884 out
of which 1712 cases are of inter-country adoption. The third respondent has also drawn the
page no. | 329 |
landmark judgments of supreme court of india on adoption
attention of the Court that notwithstanding the time schedule specified in the guidelines of 2011
as well as in the JJ Rules, 2007 there is undue delay in processing of adoption cases at the level of
Child Welfare Committees (CWS), the Adoption Recommendation Committees (ARCs) as well
as the concerned courts.
9. In the light of the aforesaid developments, the petitioner in his written submission before the
Court, admits that the JJ Act, 2000 is a secular law enabling any person, irrespective of the
religion he professes, to take a child in adoption. It is akin to the Special Marriage Act 1954,
which enables any person living in India to get married under that Act, irrespective of the
religion he follows. JJA 2000 with regard to adoption is an enabling optional gender-just law,
it is submitted. In the written arguments filed on behalf of the petitioner it has also been stated
that in view of the enactment of the JJ Act, 2000 and the Amending Act of 2006 the prayers
made in the writ petition with regard to guidelines to enable and facilitate adoption of children
by persons irrespective of religion, caste, creed etc. stands satisfactorily answered and that a
direction be made by this Court to all States, Union Territories and authorities under the JJ Act,
2000 to implement the provisions of Section 41 of the Act and to follow the CARA guidelines as
notified.
10. The All India Muslim Personal Law Board (hereinafter referred to as ‘the Board’) which has
been allowed to intervene in the present proceeding has filed a detailed written submission
wherein it has been contended that under the JJ Act, 2000 adoption is only one of the methods
contemplated for taking care of a child in need of care and protection and that Section 41
explicitly recognizes foster care, sponsorship and being look after by after-care organizations as
other/ alternative modes of taking care of an abandoned/surrendered child. It is contended that
Islamic Law does not recognize an adopted child to be at par with a biological child. According
to the Board, Islamic Law professes what is known as the “Kafala” system under which the
child is placed under a ‘Kafil’ who provides for the well being of the child including financial
support and thus is legally allowed to take care of the child though the child remains the true
descendant of his biological parents and not that of the “adoptive” parents. The Board contends
that the “Kafala” system which is recognized by the United Nation’s Convention of the Rights of
the Child under Article 20(3) is one of the alternate system of child care contemplated by the JJ
Act, 2000 and therefore a direction should be issued to all the Child Welfare Committees to keep
in mind and follow the principles of Islamic Law before declaring a muslim child available for
adoption under Section 41(5) of the JJ Act, 2000.
11. The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the option
of adopting an eligible child by following the procedure prescribed by the Act, Rules and the
CARA guidelines, as notified under the Act. The Act does not mandate any compulsive action
by any prospective parent leaving such person with the liberty of accessing the provisions of the
Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead,
follow what he comprehends to be the dictates of the personal law applicable to him. To us, the
Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal
beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of
an enabling statute. At the cost of repetition we would like to say that an optional legislation that
does not contain an unavoidable imperative cannot be stultified by principles of personal law
which, however, would always continue to govern any person who chooses to so submit himself
until such time that the vision of a uniform Civil Code is achieved. The same can only happen
page no. | 330 |
SHABNAM HASHMI VERSUS UNION OF INDIA & ORS.
by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that
are still active as on date.
12. The writ petitioner has also prayed for a declaration that the right of a child to be adopted
and that of the prospective parents to adopt be declared a fundamental right under Article 21
of the Constitution. Reliance is placed in this regard on the views of the Bombay and Kerala
High Courts in In re: Manuel Theodore D’souza2 and Philips Alfred Malvin Vs. Y.J.Gonsalvis &
Ors.3 respectively. The Board objects to such a declaration on the grounds already been noticed,
namely, that Muslim Personal Law does not recognize adoption though it does not prohibit a
childless couple from taking care and protecting a child with material and emotional support.
13. Even though no serious or substantial debate has been made on behalf of the petitioner on the
issue, abundant literature including the holy scripts have been placed before the Court by the
Board in support of its contention, noted above. Though enriched by the lengthy discourse laid
before us, we do not think it necessary to go into any of the issues raised. The Fundamental
Rights embodied in Part-III of the Constitution constitute the basic human rights which inhere
in every person and such other rights which are fundamental to the dignity and well being of
citizens. While it is correct that the dimensions and perspectives of the meaning and content
of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant
democracy where the mind is always free, elevation of the right to adopt or to be adopted to
the status of a Fundamental Right, in our considered view, will have to await a dissipation of
the conflicting thought processes in this sphere of practices and belief prevailing in the country.
The legislature which is better equipped to comprehend the mental preparedness of the entire
citizenry to think unitedly on the issue has expressed its view, for the present, by the enactment
of the JJ Act 2000 and the same must receive due respect. Conflicting view points prevailing
between different communities, as on date, on the subject makes the vision contemplated by
Article 44 of the Constitution i.e. a Uniform Civil Code a goal yet to be fully reached and the
Court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain
restraint. All these impel us to take the view that the present is not an appropriate time and stage
where the right to adopt and the right to be adopted can be raised to the status of a fundamental
right and/or to understand such a right to be encompassed by Article 21 of the Constitution. In
this regard we would like to observe that the decisions of the Bombay High Court in Manuel
Theodore D’souza (supra) and the Kerala High Court in Philips Alfred Malvin (supra) can be
best understood to have been rendered in the facts of the respective cases. While the larger
question i.e. qua Fundamental Rights was not directly in issue before the Kerala High Court,
in Manuel Theodore D’souza (supra) the right to adopt was consistent with the canonical law
applicable to the parties who were Christians by faith. We hardly need to reiterate the well settled
principles of judicial restraint, the fundamental of which requires the Court not to deal with
issues of Constitutional interpretation unless such an exercise is but unavoidable.
14. Consequently, the writ petition is disposed of in terms of our directions and observations made
above.
qqq
2 (2000) 3 BomCR 244
3 AIR 1999 Kerala 187
page no. | 331 |
landmark judgments of supreme court of india on ADOPTION
Stephanie Joan Becker Versus State and Ors.
Supreme Court of India
Bench: Hon’ble Mr. Justice P. Sathasivam, Hon’ble Mr. Justice Ranjan Gogoi &
Hon’ble Mr. Justice V. Gopala Gowda
Stephanie Joan Becker ... Appellant(s)
Versus
State and Ors. ... Respondent(s)
Civil Appeal No. 1053 of 2013
(Arising out of SLP (Civil) No. 29505 of 2012)
Decided on : 8th February, 2013
The rejection of the applications filed by the appellant under Sections 7 and 26 of the Guardians
and Wards Act, 1890 (hereinafter for short the “Guardians Act”) by the learned Trial Court
vide its order dated 17.09.2010 in Guardianship Case No. 2 of 2010 and the affirmation of the
said order made by the High Court of Delhi by its order dated 09.07.2012 in FAO No. 425 of
2010 has been put to challenge in the present appeal. By the application filed under Section
7 of the Guardians Act, the appellant had sought for an order of the Court appointing her as
the guardian of one female orphan child Tina aged about 10 years whereas by the second
application filed under Section 26 of the Guardians Act the appellant had sought permission
of the Court to take the child Tina out of the country for the purpose of adoption.
The rejection of the aforesaid two applications by the learned Trial Court as well as by
the High Court is on a sole and solitary ground, namely, that the appellant, being a single
prospective adoptive parent, was aged about 53 years at the relevant point of time whereas
for a single adoptive parent the maximum permissible age as prescribed by the Government
of India Guidelines in force was 45.
If the foreign adoptive parent is otherwise suitable and willing, and consent of the child
had also been taken (as in the present case) and the expert bodies engaged in the field are
of the view that in the present case the adoption process would end in a successful blending
of the child in the family of the appellant in USA, we do not see as to how the appellant
could be understood to be disqualified or disentitled to the relief(s) sought by her in the
proceedings in question. It is our considered view that having regard to the totality of the
facts of the case the proposed adoption would be beneficial to the child apart from being
consistent with the legal entitlement of the foreign adoptive parent. If the above is the net
result of the discussions that have preceded, the Court must lean in favour of the proposed
adoption. We, therefore, set aside the orders dated 17.09.2010 in Guardianship Case No. 2
of 2010 passed by the learned Trial Court and the order dated 09.07.2012 in FAO No. 425 of
2010 passed by the High Court of Delhi and appoint the appellant as the legal guardian of
the minor female child Tina and grant permission to the appellant to take the child to USA.
page no. | 332 |
Stephanie Joan Becker Versus State and Ors.
JUDGMENT
Hon’ble Mr. Justice Ranjan Gogoi :—
Leave granted.
2. The rejection of the applications filed by the appellant under Sections 7 and 26 of the Guardians
and Wards Act, 1890 (hereinafter for short the “Guardians Act”) by the learned Trial Court
vide its order dated 17.09.2010 in Guardianship Case No. 2 of 2010 and the affirmation of the
said order made by the High Court of Delhi by its order dated 09.07.2012 in FAO No. 425 of
2010 has been put to challenge in the present appeal. By the application filed under Section 7
of the Guardians Act, the appellant had sought for an order of the Court appointing her as the
guardian of one female orphan child Tina aged about 10 years whereas by the second application
filed under Section 26 of the Guardians Act the appellant had sought permission of the Court to
take the child Tina out of the country for the purpose of adoption.
3. The rejection of the aforesaid two applications by the learned Trial Court as well as by the High
Court is on a sole and solitary ground, namely, that the appellant, being a single prospective
adoptive parent, was aged about 53 years at the relevant point of time whereas for a single adoptive
parent the maximum permissible age as prescribed by the Government of India Guidelines in
force was 45. Though a no objection, which contained an implicit relaxation of the rigour of the
Guidelines with regard to age, has been granted by the Central Adoption Resource Authority
(CARA), the High Court did not consider it appropriate to take the said no objection/relaxation
into account inasmuch as the reasons for the relaxation granted were not evident on the face of
the document i.e. no objection certificate in question.
4. To understand and appreciate the contentious issues that have arisen in the present appeal,
particularly, the issues raised by a non-governmental organization that had sought impleadment
in the present proceedings (subsequently impleaded as respondent No. 4) it will be necessary to
take note of the principles of law governing inter-country adoption, a short resume of which is
being made hereinbelow. But before doing that it would be worthwhile to put on record that the
objections raised by the Respondent No.4, pertain to the legality of the practice of inter country
adoption itself, besides the bonafides of the appellant in seeking to adopt the child involved in
the present proceeding and the overzealous role of the different bodies involved in the process
in question resulting in side stepping of the laid down norms.
5. The law with regard to inter-country adoption, indeed, was in a state of flux until the principles
governing giving of Indian children in adoption to foreign parents and the procedure that should
be followed in this regard to ensure absence of any abuse, maltreatment or trafficking of children
came to be laid down by this Court in Lakshmi Kant Pandey v. Union of India1. The aforesaid
proceedings were instituted by this Court on the basis of a letter addressed by one Lakshmi Kant
Pandey, a practicing advocate of this Court with regard to alleged malpractices indulged in by
social and voluntary organizations engaged in the work of offering Indian children in adoption
to foreign parents. After an elaborate consideration of the various dimensions of the questions
that arose/were raised before the Court and the information laid before it by the Indian Council
of Social Welfare, Indian Council of Child Welfare, SOS Children’s Villages of India (respondent
No. 2 herein) and also certain voluntary organizations working in the foreign jurisdictions, this
Court, after holding in favour of inter country adoption, offered elaborate suggestions to ensure
1 (1984) 2 SCC 244
page no. | 333 |
landmark judgments of supreme court of india on ADOPTION
that the process of such adoption is governed by strict norms, and a well laid down procedure to
eliminate the possibility of abuse or misuse in offering Indian children for adoption by foreign
parents is in place. This Court in Lakshmi Kant Pandey (supra) also laid down the approach that
is required to be adopted by the courts while dealing with applications under the Guardians and
Wards Act seeking orders for appointment of foreign prospective parents as guardians of Indian
children for the eventual purpose of adoption. Such directions, it may be noticed, was not only
confined to hearing various organizations like the Indian Council for Child Welfare and Indian
Council of Social Welfare by issuance of appropriate notices but also the time period within
which the proceedings filed before the Court are to stand decided. Above all, it will be necessary
for us to notice that in Lakshmi Kant Pandey (supra) this Court had observed that :
“Of course, it would be desirable if a Central Adoption Resource Agency is set up by the
Government of India with regional branches at a few centres which are active in inter-country
adoptions. Such Central Adoption Resource Agency can act as a clearing house of information
in regard to children available for inter-country adoption and all applications by foreigners
for taking Indian children in adoption can then be forwarded by the social or child welfare
agency in the foreign country to such Central Adoption Resource Agency and the latter can in
its turn forward them to one or the other of the recognized social or child welfare agencies in
the country.”
6. Pursuant to the decision of this Court in Lakshmi Kant Pandey (supra) surely, though very
slowly, the principles governing adoption including the establishment of a central body, i.e.,
Central Adoption Resource Authority (CARA) took shape and found eventual manifestation
in a set of elaborate guidelines laid down by the Government of India commonly referred to
as the Guidelines For Adoption from India 2006 (hereinafter referred to as “the Guidelines of
2006”). A reading of the aforesaid Guidelines indicates that elaborate provisions had been made
to regulate the pre-adoption procedure which culminates in a declaration by the Child Welfare
Committee that the child is free for adoption. Once the child (abandoned or surrendered) is so
available for adoption the Guidelines of 2006 envisage distinct and separate steps in the process
of adoption which may be usefully noticed below :
(1) Enlisted Foreign Adoption Agency (EFAA)
• The applicants will have to contact or register with an Enlisted Foreign Adoption
Agency (EFAA)/Central Authority/Govt. Deptt. in their country, in which they
are resident, which will prepare the a Home Study Report (HSR) etc. The validity
of “Home Study Report” will be for a period of two years. HSR report prepared
before two years will be updated at referral.
• The applicants should obtain the permission of the competent authority for
adopting a child from India. Where such Central Authorities or Government
departments are not available, then the applications may be sent by the enlisted
agency with requisite documents including documentary proof that the applicant
is permitted to adopt from India
• The adoption application dossier should contain all documents prescribed in
Annexure-2. All documents are to be notarized. The signature of the notary
is either to be attested by the Indian Embassy/High Commission or the
appropriate Govt. Department of the receiving country. If the documents are
page no. | 334 |
Stephanie Joan Becker Versus State and Ors.
in any language other than English, then the originals must be accompanied by
attested translations
• A copy of the application of the prospective adoptive parents along with the
copies of the HSR and other documents will have to be forwarded to RIPA by the
Enlisted Foreign Adoption Agency (EFAA) or Central Authority of that country.
(2) Role of Recognized Indian Placement Agency (RIPA)
• On receipt of the documents, the Indian Agency will make efforts to match a
child who is legally free for inter-country adoption with the applicant.
• In case no suitable match is possible within 3 months, the RIPA will inform the
EFAA and CARA with the reasons therefore.
(3) Child being declared free for intercountry adoption - Clearance by ACA
• Before a RIPA proposes to place a child in the Inter country adoption, it must
apply to the ACA for assistance for Indian placement.
• The child should be legally free for adoption.
• ACA will find a suitable Indian prospective adoptive parent within 30 days,
failing which it will issue clearance certificate for intercountry adoption.
• ACA will issue clearance for inter-country adoption within 10 days in case of
older children above 6 years, siblings or twins and Special Needs Children as per
the additional guidelines issued in this regard.
• In case the ACA cannot find suitable Indian parent/parents within 30 days, it
will be incumbent upon the ACA to issue a Clearance Certificate on the 31st day.
• If ACA Clearance is not given on 31st day, the clearance of ACA will be assumed
unless ACA has sought clarification within the stipulation period of 30 days.
• NRI parent(s) (at least one parent) HOLDING Indian Passport will be exempted
from ACA Clearance, but they have to follow all other procedures as per the
Guidelines.
(4) Matching of the Child Study Report with Home Study Report of FPAP by RIPA
• After a successful matching, the RIPA will forward the complete dossier as per
Annexure 3 to CARA for issuance of “No Objection Certificate”.
(5) Issue of No Objection Certificate (NOC) by CARA
• RIPA shall make application for CARA NOC in case of foreign/PIO parents only
after ACA Clearance Certificate is obtained.
• CARA will issue the ‘NOC’ within 15 days from the date of receipt of the adoption
dossier if complete in all respect.
• If any query or clarification is sought by CARA, it will be replied to by the RIPA
within 10 days.
• No Indian Placement Agency can file an application in the competent court for
intercountry adoption without a “No Objection Certificate” from CARA.
page no. | 335 |
landmark judgments of supreme court of india on ADOPTION
(6) Filing of Petition in the Court
• On receipt of the NOC from CARA, the RIPA shall file a petition for adoption/
guardianship in the competent court within 15 days.
• The competent court may issue an appropriate order for the placement of the
child with FPAP.
• As per the Hon’ble Supreme Court directions, the concerned Court may dispose
the case within 2 months.
(7) Passport and Visa
• RIPA has to apply in the Regional Passport Office for obtaining an Indian
Passport in favour of the child.
• The concerned Regional Passport Officer may issue the Passport within 10 days.
• Thereafter the VISA entry permit may be issued by the Consulate/Embassy/High
Commission of the concerned country for the child.
(8) Child travels to adoptive country
• The adoptive parent/parents will have to come to India and accompany the child
back to their country.
7. Even after the child leaves the country the Guidelines of 2006 contemplate a process of continuous
monitoring of the welfare of the child through the foreign placement agency until the process
of adoption in the country to which the child has been taken is completed, which process the
Guidelines contemplate completion within two years. The monitoring of the welfare of the child
after the process of adoption is complete and the steps that are to be taken in cases where the
adoption does not materialize is also contemplated under the Guidelines of 2006. As the said
aspects are not relevant for the purposes of the present adjudication the details in this regard
are not being noticed. What, however, would require emphasis, at this stage, is that by and
large the Guidelines of 2006 framed by the Ministry of Women and Child Development are in
implementation of the decision of this Court in the case of Lakshmi Kant Pandey (supra).
8. Two significant developments in the law governing adoptions may now be taken note of. Section
41 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter for short the
“JJ Act”) was amended by Act 33 of 2006 by substituting sub-Sections 2, 3 and 4 by the present
provisions contained in the aforesaid sub-Sections of Section 41. The aforesaid amendment which
was made effective from 22.8.2006 is significant inasmuch as under sub-Section 3 power has been
conferred in the Court to give a child in adoption upon satisfaction that the various guidelines
issued from time to time, either by the State Government or the CARA and notified by the
Central Government have been followed in the given case. The second significant development
in this regard is the enactment of the Juvenile Justice (Care and Protection of Children) Rules
2007 by repeal of the 2001 Rules in force. Rule 33 (2) makes it clear that “for all matters relating
to adoption, the guidelines issued by the Central Adoption Resource Agency and notified by the
Central Government under sub-section (3) of Section 41 of the Act, shall apply.” Rule 33 (3) in
the various sub-clauses (a) to (g) lays down an elaborate procedure for certifying an abandoned
child to be free for adoption. Similarly, sub-rule (4) of Rule 33 deals with the procedure to be
adopted for declaring a surrendered child to be legally free for adoption. Once such a declaration
page no. | 336 |
Stephanie Joan Becker Versus State and Ors.
is made, the various steps in the process of adoption spelt out by the Guidelines of 2006, details
of which have been extracted hereinabove, would apply finally leading to departure of the child
from the country to his/her new home for completion of the process of adoption in accordance
with the laws of the country to which the child had been taken. In this regard the order of
the courts in the country under Section 41(3) of the JJ Act would be a step in facilitating the
adoption of the child in the foreign country.
9. It will also be necessary at this stage to take note of the fact that the Guidelines of 2006 stand
repealed by a fresh set of Guidelines published by Notification dated 24.6.2011 of the Ministry
of Women and Child Development, Government of India under Section 41(3) of the JJ Act.
The time gap between the coming into effect of the provisions of Section 41(3) of the JJ Act
i.e. 22.08.2006 and the publication of the 2011 Guidelines by the Notification dated 24.6.2011
is on account of what appears to be various procedural steps that were undertaken including
consultation with various bodies and the different State Governments. A reading of the
Guidelines of 2011 squarely indicate that the procedural norms spelt out by the 2006 Guidelines
have been more elaborately reiterated and the requirements of the pre-adoption process under
Rules 33(3) and (4) have been incorporated in the said Guidelines of 2011. As a matter of fact,
by virtue of the provisions of Rule 33(2) it is the Guidelines of 2011 notified under Section 41(3)
of the JJ Act which will now govern all matters pertaining to inter-country adoptions virtually
conferring on the said Guidelines a statutory flavour and sanction. Though the above may not
have been the position on the date of the order of the learned trial court i.e. 17.9.2010, the full
vigour of Section 41(3) of the JJ Act read with Rule 33 (2) of the Rules and the Guidelines of
2011 were in operation on the date of the High Court order i.e. 9.7.2012. The Notification dated
24.06.2011 promulgating the Guidelines of 2011 would apply to all situations except such things
done or actions completed before the date of the Notification in question, i.e., 24.06.2011. The
said significant fact apparently escaped the notice of the High Court. Hence the claim of the
appellant along with consequential relief, if any, will have to be necessarily considered on the
basis of the law as in force today, namely, the provisions of the JJ Act and the Rules framed
thereunder and the Guidelines of 2011 notified on 24.6.2011. In other words, if the appellant is
found to be so entitled, apart from declaring her to be natural guardian and grant of permission
to take the child away from India a further order permitting the proposed adoption would also
be called for. Whether the order relating to adoption of the child should be passed by this Court
as the same was not dealt with in the erstwhile jurisdictions (trial court and the High Court) is
an incidental aspect of the matter which would require consideration.
10. The facts of the present case, as evident from the pleadings of the parties and the documents
brought on record, would go to show that the appellant’s case for adoption has been sponsored
by an agency (Journeys of the Heart, USA) rendering service in USA which is recognized by
CARA. The Home Study Report of the family of the appellant indicates that the appellant apart
from being gainfully employed and financially solvent is a person of amicable disposition who
has developed affinity for Indian culture and Indian children. The appellant, though unmarried,
has the support of her brother and other family members who have promised to look after the
child in the event such a situation becomes necessary for any reason whatsoever. The Child
Study Report alongwith medical examination Report prepared by the recognized agency in India
has been read and considered by the appellant and it is only thereafter that she had indicated
her willingness to adopt the child in question. Before permitting the present process of inter
page no. | 337 |
landmark judgments of supreme court of india on ADOPTION
country adoption to commence, all possibilities of adoption of the child by an Indian parent
were explored which however did not prove successful.
The matter was considered by the No Objection Committee of the CARA and as stated in the
affidavit of the said agency filed before this Court, the No Objection Certificate dated 03.02.2010
has been issued keeping in mind the various circumstances peculiar to the present case, details
of which are as hereunder :
• Child Tina was an older female child (aged 7 years when the NOC was issued) and thus
relaxation was permissible as per the guidelines.
• The Prospective parent was 54 years of age, which is within the age up to which adoption
by foreign prospective parent is permissible after relaxation i.e. 55 years.
• The Prospective Adoptive Parent is otherwise also suitable as she is financially stable
and there are three reference letters supporting adoption of the child by her. The Home
study report of the prospective parent (Ms. Stephanie Becker) shows the child as kind,
welcoming, caring and responsible individual with physical, mental emotional and
financial capability to parent a female child up to age of seven years from India.
• Procedures such as declaration of the child as legally free for adoption by CWC Child
Welfare Committee (CWC); ensuring efforts for domestic adoption and clearance of
Adoption Coordinating Agency; and taking consent of older child had been followed.
• Follow-up of the welfare of the child was to be properly done through Journeys of the
Hearts, USA, the authorized agency which had also given an undertaking to ensure
the adoption of child Tina according to the laws in USA within a period not exceeding
two years from the date of arrival of the child in her new home. The agency has also
committed to send follow-up reports as required.
• The Biological brother of the prospective parent, Mr. Philip Becker Jr. and his wife Ms.
Linda Becker have given an undertaking on behalf of the single female applicant to act
as legal guardian of the child in case of any unforeseen event to the adoptive parent.
This is another important safeguard.
• Article 5 from the Office of Children’s Issues, US Department of State allowing child
Tina to enter and reside permanently in the United States and declaring suitability of
the prospective adoptive parent, was available.
11. In view of the facts as stated above which would go to show that each and every norm of the
adoption process spelt out under the Guidelines of 2006, as well as the Guidelines of 2011, has
been adhered to, we find that the apprehension raised by the intervener, though may have been
founded on good reasons, have proved themselves wholly unsubstantiated in the present case. If
the foreign adoptive parent is otherwise suitable and willing, and consent of the child had also
been taken (as in the present case) and the expert bodies engaged in the field are of the view that
in the present case the adoption process would end in a successful blending of the child in the
family of the appellant in USA, we do not see as to how the appellant could be understood to be
disqualified or disentitled to the relief(s) sought by her in the proceedings in question. It is our
considered view that having regard to the totality of the facts of the case the proposed adoption
would be beneficial to the child apart from being consistent with the legal entitlement of the
foreign adoptive parent. If the above is the net result of the discussions that have preceded, the
page no. | 338 |
Stephanie Joan Becker Versus State and Ors.
Court must lean in favour of the proposed adoption. We, therefore, set aside the orders dated
17.09.2010 in Guardianship Case No. 2 of 2010 passed by the learned Trial Court and the order
dated 09.07.2012 in FAO No. 425 of 2010 passed by the High Court of Delhi and appoint the
appellant as the legal guardian of the minor female child Tina and grant permission to the
appellant to take the child to USA.
In view of the provisions of Section 41(3) of the JJ Act and to avoid any further delay in the matter
which would be caused if we were to remand the aforesaid aspect of the case to the learned Trial
Court, only on the ground that the same did not receive consideration of the learned Court, we
deem it appropriate to pass necessary orders giving the child Tina in adoption to the appellant.
The CARA will now issue the necessary conformity certificate as contemplated under clause
34(4) of the Guidelines of 2011. The appeal consequently shall stand allowed in the above terms.
qqq
page no. | 339 |
landmark judgments of supreme court of india on ADOPTION
Lakshmi Kant Pandey versus Union Of India
Supreme Court of India
Bench: Hon’ble Mr. Justice P.N. Bhagwati, Hon’ble Mr. Justice R.S. Pathak &
Hon’ble Mr. Justice Amarendra Nath Sen
Lakshmi Kant Pandey
Versus
Union Of India
1984 SCR (2) 795
1984 AIR 469
Decided on : 6th February, 1984
CITATION:
1984 AIR 469 1984 SCR (2) 795
1984 SCC (2) 244 1984 SCALE (1)159
The essence of the directions given in Lakshmi Kant Pandey case (supra) is as follows:
(1) Every effort must be made first to see if the child can be rehabilitated by adoption
within the country and if that is not possible, then only adoption by foreign parents,
or as it is some time called ‘inter- country adoption’ should be acceptable.
(2) Such inter-country adoption should be permitted after exhausting the possibility of
adoption within the country by Indian parents.
(3) There is a great demand for adoption of children from India and consequently there
is increasing danger of ill-equipped and sometimes even undesirable organisations
or individuals activising themselves in the field of inter-county adoption with a view
to trafficking in children.
(4) Following are the requirements which should be insisted upon so far as a foreigner
wishing to take a child in adoption is concerned. In the first place, every application
from a foreigner desiring to adopt a child must be sponsored by a social or child
welfare agency recognised or licensed by the government of the country in which the
foreigner is resident. No application by foreigner for taking a child in adoption should
be entertained directly by any social or welfare agency in India working in the area of
inter-country adoption or by any institution or centre or home to which children are
committed by the juvenile court.
Adoption of Children by foreigner-International adoptions-Normative and Procedural
safeguards to be insisted upon so far as a foreigner wishing to take a child in adoption.
The petitioner, an advocate of the Supreme Court addressed a letter in public interest to
page no. | 340 |
Lakshmi Kant Pandey versus Union Of India
the Court, complaining of malpractices indulged in by social organisation and voluntary
agencies engaged in the work of offering Indian Children in adoption to foreign parents,
the petitioner alleged that not only Indian Children of tender age are under the guise of
adoption “exposed to the long horrendous journey to distant foreign countries at great risk
to their lives but in cases where they survive and where these children are not placed in the
shelter and Relief Houses, they in course of time become beggars or prostitutes for want
of proper care from their alleged foster parents.” The petitioner, accordingly, sought relief
restraining Indian based private agencies “from carrying out further activity of routing
children for adoption abroad” and directing the Government of India, the Indian Council of
Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the
matter of adoption of Indian Children by Foreign parents. Being a public interest litigation,
the letter was treated as a writ petition.
Disposing of the Writ Petition, after indicating the principles and norms to be observed in
giving a Child in adoption to foreign parents, the Court
HELD: 1: 1. Every child has a right to love and be loved and to grow up in an atmosphere of
love and affection and of moral and material security and this is possible only if the child
is brought up in a family. The most congenial environment would, of course, be that of the
family of his biological parents. But if for any reason it is not possible for the biological
parents or other near relative to look after the child or the child is abandoned and it is
either not possible to trace the parents or the parents are not willing to take care of the
child, the next best alternative would be to find adoptive parents for the child so that the
child can grow up under the loving care and attention of the adoptive parents. The adoptive
parents would be the next best substitute for the biological parents.
1:2. When the parents of a child want to give it away in adoption or the child is abandoned
and it is considered necessary in the interest of the child to give it in adoption, every
effort must be made first to find adoptive parents for it within the country, because
such adoption would steer clear of any problems of assimilation of the child in the
family of the adoptive parents which might arise on account of cultural, racial or
linguistic differences in case of adoption of the child by foreign parents. If it is not
possible to find suitable adoptive parents for the child within the country, it may
become necessary to give the child in adoption to foreign parents rather than allow
the child to grow up in an orphanage or an institution where it will have no family life
and no love and affection of parents and quite often, in the socioeconomic conditions
prevailing in the country, it might have to lead the life of a destitute, half clad, half-
hungry and suffering from malnutrition and illness.
2:1. The primary object of giving the child in adoption should be the welfare of the child.
Great care has to be exercised in permitting the child to be given in adoption to foreign
parents, lest the child may be neglected or abandoned by the adoptive parents in the
foreign country or the adoptive parents may not be able to provide to the child a life
page no. | 341 |
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