Memorial On Behalf of Respondent Nehru Memorial Law College National Moot Court Competition

Nehru law College National Moot Court Competition, 2015
BEFORE THE HONOURABLE SUPREME COURT OF INDIA
Under Article 136 of the Constitution of India

Special Leave Petition No. XXX/2015
In The Matter of
Fatima.......................................................................Petitioner
V.
Neyaz......................................................................Respondent
ON SUBMISSION TO THE HONOURABLE SUPREME COURT OF INDIA
MOST RESPECTFULLY SUBMITTED
COUNSELS APPEARING ON BEHALF OF NEYAZ
Written Submission on behalf of the Respondent
Page 1

Table of Contents
List of Abbreviations...........................................................................3
Index of Authorities............................................................................4-5
Statement of Jurisdiction....................................................................6
Statement of Facts..............................................................................7-8
Statement of Issues..............................................................................9
Summary of Arguments.....................................................................10-11
Arguments Advanced.........................................................................12-26
Issue 1.................................................................................................12-14
Issue 2.................................................................................................14-21
2.1.............................................................................................14-16
2.2.............................................................................................16-17
2.3..............................................................................................17-21
Issue 3....................................................................................................21-26
3.1...............................................................................................21-23
3.2...............................................................................................23-26
Prayer............................................................................................................27
Page 2

List of Abbreviations
AIR
SC
SCC
Raj.
Cr.L.J
V.
Cr.P.C
SCR
Anr.
Cal.
Edn.
Para.
U.P
Vol.
Sec.
All.
Pg.
H.C
S.C
ALJ
1986 Act
M.W
Har.
Pun.
U.P
All India Reporter

Supreme Court
Supreme Court Cases
Rajasthan
Criminal Law journal
Versus
Criminal Procedure Code
Supreme Court Report
Another
Calcutta
Edition
Paragraph
Uttar Pradesh
Volume
Section
Allahabad
Page
High Court
Supreme Court
Allahabad Law Journal
Muslim Women (Protection of Rights on Divorce) Act,
1986
Muslim Women
Haryana
Punjab
Uttar Pradesh
Page 3
Index of Authorities
S.NO.
1.
CASE LAW
A.A. Abdulla v. Mohmuna Saiyadbhai
CITATION
AIR 1988 Guj 141
2.
3.
Allar Vs Pathu
Arab Ahemadhia Abdulla And Etc. vs Arab Bail
Mohmuna Saiyadbhai And ...
Abdul Rashid (Dr.) vs Mst. Farida W/O Abdul
Rashid on 9 October, 1993
Abid Ali v. Mst. Raisa Begum
Abdul Rashid (Dr.) vs Mst. Farida W/O Abdul
Rashid on 9 October.
Karim Abdul Rehman Shaikh vs Shehnaz Karim
Shaikh & Others on
Jamshed Hormurji Wadia v. Board of Trustees,
Port of Mumbai.
MANU/KE/0320/1988
on 18 February, 1988
4.
5.
6.
7.
8.
9.
Md. Unus v. Bibi Phenkani @ Tasrun Nisa and Anr
10.
Mahamadrafik Akbar
Bagwan vs
(1988) 1 Raj LR 104

(1988) 1 Raj LR 104
, 1993 MP High Court
11 July, 2000
Nurbegam 15 December, 1998
Mahamadrafik Bagwan And ... on

11.
Md. Yunus v. Bibi Phenkani alias Tasrun Nisa
12.
13.
14.
Nagoor Mohamed Farooq And Others vs Smt. Kar 2000

Mavada Roashan Jahan And.others
Reserve Bank of India v. Sharda Devi
(2005) 10 SCC
Rizwana Begum v. Matiullah 1989
Cr.LJ (NOC) 155 Ori
15.
16.
Rafiq v. U.P.
State of U.P. v. RD Rai,
(1981) 1 S.C.R. 402

1979
17.
Sakinabai v. Fakruddin,
1999(11) D.M.C. 576
18.
Usman Khan Bahmani Vs Fathimunisa Begum
AIR (1990) AP 225
(1987) 2 crimes 241.
Page 4
Books Referred
S.No.
1.
2.
3.
Name
R.V. Kelkars Criminal Procedure Code, 6th Edition, Eastern Book Company
(2014)
Sarkars Code of Criminal Procedure, 10th Edition, Lexis Nexis (2012)
S.N Mishra Code of Criminal Procedure, 17th Edition, Central Law Agency
4.
5.
6.
7.
Aqil Ahmads Mohammedan Law, 25th Edition, Central Law Agency

I.A Khans Mohammedan Law, 14th Edition, Central Law Agency
Mullas Personal law, 16th Edition, Allahabad Law Agency
M.P Jain Indian Constitutional Law, 6th Edition (2013)
Statutes Referred
S.No.
1.
2.
3.
Name
The Constitution of India,1950
The Criminal Procedure Code, 1973
MuslimWomen (Protection of Rights on Divorce) Act, 1986
Page 5
Statement of Jurisdiction
The Respodent humbly submits to Honble Supreme Court of India and that the court is
empowered to hear this case by the virtue of Art. 136 of the Constitution of India, 1950.
The Article read as:
Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.
Page 6
Statement of Facts
1. That Mr. Neyaz, working as a clerk in a commercial bank in hanumangarh , Rajasthan
fell in love with Miss Ashwarya and desired to marry.
2. That in order to solemnize the marriage with Neyaz, Ashwarya converted herself to
Islam and changed her name to Fatima, as the proposal of marriage was not
acceptable to the parents of Neyaz, as the girl being Hindu.
3. That their marriage was solemnized as per Muslim personal law on 2-1-2007.
4. That after marriage, Mr. Neyaz began to ill treat her for demand of dowry and his
parents too joined hands with him to ill treat Fatima.
5. That finally, Mr. Neyaz on 1-8-2007 left Fatima at her Parents home for want of
dowry, knowing pretty well that she is pregnant.
6. That on 15-2-2008, Fatima gave birth to a female child and the fact was
communicated to Neyaz but he refused to receive the child and Fatima as his desire
for dowry was still unsatisfied.
7. Fatima filed a petition for maintenance to herself and her child under Section 125
Cr.P.C in Hanumangarh Family Court on 25-12-2009, claiming maintenance of Rs.
15,000/- per month as her husband as he is earning a salary of Rs. 30,000/- per month.
8. That the respondent denied all the allegations and asserted that she is living on her
own free will and thus deserted him since 1-8-2007.
9. That while the petition of maintenance was pendingbefore the family court, Mr.
Neyaz pronounced irrevocable Talaq on 2-3-2010 to dissolve his marriage with
Fatima.
10. Mr. Neyaz contended that under the provisions of Muslim Women Act, 1986, he is no
more liable to pay any maintenance to Fatima and her child after talaq.
Page 7

11. That the family court directed the respondent to pay Rs. 9,000/- per month for
maintenance to Fatima and her child from the date of petition till the completion of
iddat period.
12. Aggrieved by the decision of the family court, Fatima preferred an appeal to the High
Court of Rajasthan claiming maintenance beyond iddat period.
13. That the High Court of Rajasthan also confirmed the decision of the High Court.
14. That Fatima preferred an appeal to the Supreme Court with Special Leave of the apex
Court, challenging the decision of the High Court of Rajasthan.
Page 8

Statement of Issues
1. Whether the Special Leave Petition sought under Art. 136 is maintainable?
2. Whether petitioner, being a Muslim divorced woman, can claim maintenance
under section 125 of Criminal Procedure Code, 1973 from her husband?
3. Whether the maintenance contemplated under Section 3(1)(a) of the Act of 1986
is restricted only for the period of iddat?
Page 9

Summary of Arguments
1. Whether the Special Leave Petition sought under article 136 is maintainable?
It is most humbly submitted before the honble Court that the exercise of jurisdiction
conferred by article 136 of the Constitution on this Court is discretionary. It does not confer a
right to appeal on a party to litigation; it only confers a discretionary power of widest
amplitude on this Court to be exercised for satisfying the demands of justice. Special leave
can be granted only in exceptional cases, where special circumstances exist that substantial
question of law is involved and grave injustice has been done and that the case in question
presents features of sufficient gravity to warrant a review on the decision appealed against. It
is humbly submitted that the case is not an exception and warrants no such special leave to
be granted.
2. Whether petitioner, being a Muslim divorced woman, can claim maintenance
under section 125 of Criminal Procedure Code, 1973 from her husband?
It is most humbly submitted that Section 125 of The Code of Criminal Procedure, 1973,
albeit, is a general provision and is applicable to all irrespective of any religion providing for
maintenance but the law demands the application of this provisions to the parties only to
those who agree by mutual consent to be governed by the said provision.
That the
application of Section 125 Cr.P.C. to the parties, being subject to the Muslim Personal Law,
in the matter of maintenance frustrates the basic aim and object of the Act of 1986. Section 3
of the aforesaid Act limits the application of Section 125 of the Code of 1973 to divorced
Muslim women and facilitates the application of personal law in the matter of maintenance.
Moreover, Section 4 of the Act of 1986 lays down that the liability to pay maintenance to a
divorced woman, if she is unable to maintain herself after the period of iddat, is devolved
upon the relatives and if the relatives are not available, on the Waqf Board. The husband is
Page 10

liable to maintain his wife only during the period of iddat. Section 7 of the Act 25 of 1986
purports to establishes that even if an application under Sections 125 to 128 has been made, it
shall be disposed of by the Magistrate in accordance with the provisions under the Act of
1986.
3. Whether the maintenance contemplated under Section 3(1)(a) of the Act of 1986
is restricted only for the period of iddat?
It is humbly submitted that Section 3(1)(a) of The Muslim Women (Protection of Rights on
Divorce) Act, 1986 entitles a Muslim divorced woman to a reasonable and fair provision and
maintenance to be made and paid to her within the iddat period by her former husband.
That Section 4 of the Act casts the responsibility for the maintenance of a Muslim
divorced woman who has not remarried, upon the relatives of such woman who are entitled to
inherit her property on her death according to Muslim Law. If such relatives have no means
to pay such maintenance, the Magistrate is empowered to order the Sate Wakf Board under
section 9 of the Wakf Act, 1954 to provide such maintenance to such woman.
Page 11

Arguments Advanced
1. Whether the Special Leave Petition sought under article 136 is maintainable?
It is most humbly submitted before the honble Court that the respondent would like to
submit that Article 136(1) of our constitution states that:
Notwithstanding anything in this chapter, the Supreme Court may in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.Article 136
confers the special jurisdiction on the Supreme Court. It remains unaffected by articles 132
133 134 134A. The Honble Supreme Court declared it discretionary in nature in the case of.1
The Honble Supreme Court has described the nature of its power under article 136 as
follows:
The exercise of jurisdiction conferred by article 136 of the Constitution on this Court is
discretionary. It does not confer a right to appeal on a party to litigation; it only confers a
discretionary power of widest amplitude on this Court to be exercised for satisfying the
demands of justice. On the one hand, it is an exceptional power to be exercised sparingly,
with caution and care and to remedy extraordinary situations or situations occasioning gross
failure of justice; on the other hand, it is an overriding power where under the court may
generously step in to impart justice and remedy injustice.
It can be inferred from the above judgment that the Petitioner does not have any
constitutional right to seek special leave. It would be appreciated if the Petitioner takes the
usual course, which entitles it to seek permission from the Honourable High Court and appeal
the matter before the Honble Supreme Court. Moreover, the importance of appeal was
emphasized by the Honble Supreme Court and the Honble High Court has delivered the
1
Narpat Singh v. Jaipur Development Authority AIR 2002 SC 2036
Page 12

judgment with the spirit of equity and justice2. The Supreme Court refused to exercise its
jurisdiction under Art. 136 on the ground that no injustice whatever had been caused by the
High Courts decision3. According to the decision of the Court.4 we rarely invoke the
special jurisdiction under Article 136which is meant to correct manifest injustice or errors
of law of great moment.
It is quite erroneous on the part of the Petitioner to move directly to the Supreme Court
bypassing the normal procedure of appeal. The honble Apex Court 5 opined that Ordinarily,
the parties are directed to approach the High Court for the recall, stay or modification of the
order. It can be inferred from the facts of the case that the Petitioner has not exhausted all
the remedies available to it. Relief will be refused to an appellant where his conduct has been
such as to disentitle him to relief. In the instant case also the act of charging. Special leave
can be granted only in exceptional cases, where special circumstances exist that substantial
and grave injustice has been done and that the case in question presents features of sufficient
gravity to warrant a review on the decision appealed against. It is humbly submitted that the
case is not an exception and warrants no such special leave to be granted.
In the present case, there is no substantial question of law involved and no miscarriage of
justice has been done to the petitioner as the high court has rightly decided the case in
hand, in the light of law and judicial pronouncements. There exists no special
circumstances which would entitle the case to be entertained and it is not the practice of the
apex court to interfere in the judgement of high court where no injustice is done and no
substantial question of law is involved.
Jamshed Hormurji Wadia v. Board of Trustees, Port of Mumbai.

State of U.P. v. RD Rai, 1979
4
Rafiq v. U.P. (1981) 1 S.C.R. 402
5
Reserve Bank of India v. Sharda Devi (2005) 10 SCC 178
3
Page 13

The Honble Supreme Court being part of the judiciary is already burdened with backlog
cases and keeping that in view it does not seem feasible for the Honble Court to entertain an
appeal wherein there is no issue of substantive law or public importance.
2. Whether Section 125 of The Code of Criminal Procedure, 1973 is applicable
to Muslim Divorcee Women?
It is most humbly submitted before this Honourable Court that Section 125 of The Code of
Criminal Procedure, 1973 although is a general provision but the law demands the application
of this provisions to the parties only to those who agree by mutual consent to be governed by
the said provision.
2.1 Section 125 Cr.P.C. is applicable only upon the mutual consent of the Muslim parties
and no maintenance if the wife has deserted husband.
It is most humbly submitted before this Honourable Court that Section 125 of The Code of
Criminal Procedure, 1973, albeit, is a general provision and is applicable to all irrespective of
any religion providing for maintenance but the law demands the application of this provisions
to the parties only to those who agree by mutual consent to be governed by the said provision.
The Muslim parties, being subject to Muslim Personal Law, in all respects are governed by
the Muslim Personal Law by default and hence the general law relating to maintenance
contained in Section 125 Cr.P.C. comes into application only upon the mutual consent of the
parties.
Section 5.- Option to be governed by the provisions of section 125 to 128 of Act 2 of
1974.If, on the date of the first hearing of the application under sub-section (2) of section
3, 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
Page 14

prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal
Procedure, 1973 (2 of 1974); and file such affidavit or declaration in the court hearing the
application, the Magistrate shall dispose of such application accordingly.
Explanation.For the purposes of this section, date of the first hearing of the application
means the date fixed in the summons for the attendance of the respondent to the
application.6
Well, a meticulous perusal of this provision conveys that where the parties in the matter of
maintenance are Muslim, the application of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 is implied. The Section 5 of the Act of 1986 calls for the mutual consent
of the parties, by an affidavit or any other declaration in writing in such form as may be
prescribed, to be governed by Section 125 of The Code of Criminal Procedure, 1973. If
the option is not exercised they will not be governed by the provisions of Section 125 of the
Cr.P.C.7 A petition under Section 125 of the Cr. P.C. by a Muslim divorced woman is
perfectly maintainable subject to the provisions of Section 5 of the Act of 1986. If the
husband of a Muslim divorced woman refuses to subject himself to the jurisdiction of the
Magistrate, Magistrate is competent to grant maintenance to divorced Muslim woman under
the provisions of the Act of 1986.8
As per the provisions of Section 5 -the application filed under Section 3(2) of the Muslim
Women Act by a divorced woman can be disposed of by following the provisions of Section
125 to 128 of the Criminal P.C. if the divorced woman and her former husband file affidavits
to that effect.9
6
7
Section 5, Muslim Women (Protection of Rights on Divorce) Act, 1986.

Aqil Ahmad, Mohammedan Law, 23rd Edition.
Nagoor Mohamed Farooq And Others vs Smt. Mavada Roashan Jahan And others Kar 2000.
A.A. Abdulla v. Mohmuna Saiyadbhai AIR 1988 Guj 141
Page 15

It is submitted that in the present case the Respondent husband has not given any consent
whatsoever, neither by an affidavit nor by any declaration in writing in the prescribed form to
be governed by the said provision. Therefore, Section 125 Cr.P.C. is not applicable to the
parties in question. The provisions of Section 125 to 128 of Cr.P.C. has no application after
the enforcement of The Muslim Women (Protection of Rights on Divorce) Act, 1986.10
2.2 The application of Section 125 Cr.P.C. to Muslim Divorced women frustrates the object
of the Act of 1986.
The Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed by the
Parliament during the Rajiv Gandhi government in order to nullify the judgement of the
Supreme Court in Mohd. Ahmad Khan .v. Shah Bano Begum and Ors.11 which had
resulted in great controversy over the matter of providing maintenance to the wife by her
former husband after divorce, even beyond the iddat period. The basic object of the Act of
1986 has been to restore the Muslim Personal Law on the point of maintenance which clearly
establishes that the maintenance shall be provided only upto the period of iddat.
It is humbly submitted that the application of Section 125 Cr.P.C. to the parties, being subject
to the Muslim Personal Law, in the matter of maintenance frustrates the basic aim and object
of the Act of 1986. It is a deliberate attempt to encroach upon the fundamental principles of
Islamic Laws. The different aspects of Muslim Personal Law are intended to have a direct
bearing on each other and hence, they cannot be read in isolation. The law relating to
maintenance of wife in Islamic law, which restricts it upto the period of Iddat has a direct
nexus with other provisions and hence, it would be undesirable to question it while placing it
in isolation.
10
Usman Khan Bahmani Vs Fathimunisa Begum AIR (1990) AP 225
11
AIR 1985 SC 945.
Page 16

The basic aim and object of every law is welfare of the society at large and proper
administration of justice amongst the people. The Islamic law too stands on the same footing
and hence cannot be accused of being derogatory to the social interest. If the provision
relating to the maintenance under Islamic law disposes the husband off is responsibility to
provide maintenance beyond Iddat period, the other provisions relating to the welfare of
the women come into operation after the Iddat Period.
It is submitted that since the Act of 1986 was enacted on the lines of Muslim Personal Law
with a view to restore the fundamental law relating to maintenance, the application of Section
125 of the Cr.P.C. eclipses the object of the Act of 1986.
2.3 The Muslim Women (Protection of Rights on Divorce) Act, 1986 has an overriding
effect.
It is humbly submitted that The Muslim Women (Protection of Rights on Divorce) Act, 1986
has an overriding effect over all other laws. After the passing of the Act of 1986, there arose a
controversy whether Section 125, Cr.P.C. would be applicable to the case of a divorced
Muslim wife claiming maintenance from her former husband. Section 3 of the aforesaid Act
says that notwithstanding anything contained in any other law for the time being in force
which limits the application of Section 125 of the Code of 1973 to divorced Muslim women
and facilitates the application of personal law in the matter of maintenance, thereby, effecting
the spirit and objects of Islam.
A divorced Muslim woman, irrespective of being able to maintain herself or not, desirous of
obtaining maintenance from her former husband, can get maintenance from him, confined to
Iddat period. Her proper remedy to recover this limited kind of maintenance and also to
recover maintenance for her children being maintained by her up to their ages of 2 years, for
Page 17

Mahr or dower and for gifted properties, is to make an application under Section 3(2) of the
Muslim Women Act.12
Moreover, Section 4 of the Act of 1986 lays down that the liability to pay maintenance to a
divorced woman, if she is unable to maintain herself after the period of iddat, is devolved
upon the relatives and if the relatives are not available, on the Waqf Board. The husband is
liable to maintain his wife only during the period of iddat.13 The right to get maintenance
from her husband given to a wife under Section 125 of the Code until she remarries has been
impliedly repealed in case of a divorced Muslim wife governed by the provisions of Section
3(1)(a) of the Act of 1986.14 The Act of 1986 does not contain any saving clause for the right
created on orders passed in favour of a divorced Muslim woman. The Act has completely
obliterated the right of such woman to get maintenance. The repeal without saving such right
means that such woman had never acquired such right and that right now cannot be enforced
under Section 125(3) of the Code.15 Section 125 of the Code will have no application to the
case of a divorced Muslim woman who is governed by the provisions of the Act of 1986.16
Where an order was made for the maintenance of a wife under Section 488 of the Old Code
and she was divorced, the order ceased to operate on the expiration of the period of iddat.17
If a divorced Muslim woman who has not remarried, is unable to maintain herself and is
desirous of obtaining maintenance for post Iddat period, her remedy is that mentioned
in Section 4 of the Muslim Women Act, to obtain an order from a Magistrate, who may direct
payment to be made to her by her children, parents, other relatives or Wakf Board, in that
12
Abdul Rashid (Dr.) vs Mst. Farida W/O Abdul Rashid on 9 October, 1993 MP High Court.
13
Aqil Ahmad, Mohammedan Law, 23rd Edition.
14
Md. Yunus v. Bibi Phenkani alias Tasrun Nisa (1987) 2 crimes 241.
15
Abid Ali v. Mst. Raisa Begum (1988) 1 Raj LR 104.
16
Rizwana Begum v. Matiullah 1989 Cr.LJ (NOC) 155 Ori.
17
Sir Dinshaw Fardunji Mulla, 18th Edition, at p.301.
Page 18

order. The former husband does not figure in this scheme of things and cannot be directed to
make payment.18
Every application by a divorced woman under section 125 or under section 127 of the Code
of Criminal Procedure, 1973 (2 of 1974) pending before a Magistrate on the commencement
of this Act, shall, notwithstanding anything contained in that Code and subject to the
provisions of section 5 of this Act, be disposed of by such Magistrate in accordance with the
provisions of this Act.19 If any application under section 125or section 127 of the Code is
pending on the date when the Muslim Women Act came into force, the application has to be
disposed of by the Magistrate in accordance with the provisions of the Act.20
Section 7 of the Act 25 of 1986 purports to establishes that even if an application under
Sections 125 to 128 has been made, it shall be disposed of by the Magistrate in accordance
with the provisions under the Act of 1986, meaning thereby, that the provisions of the Act
of 1986 shall have primacy over other laws i.e, Sections 125 to 128 of Cr.P.C. even if the
application has been made by the wife under the latter provisions. Therefore, this Section of
the Act of 1986 completely rules out the application of Section 125 to Section 128 of Cr.P.C.
and gives primacy to the law contained in the Act 25 of 1986. Since, it has been already
submitted that Section 3 of the Act limits the liability of the husband to pay maintenance only
upto the period of Iddat and Section 4 of the Act absolves the husband of his responsibility
to pay the sum of maintenance beyond Iddat period and cast a responsibility over the
relatives of such women to provide maintenance beyond the period of Iddat, failing them it
would be the responsibility of the Wakf Board to do so, it is therefore clear that these
provisions shall apply even when the application for maintenance has been made by the wife
18
Abdul Rashid (Dr.) vs Mst. Farida W/O Abdul Rashid on 9 October, 1993
19
Section 7, Muslim Women (Protection of Rights on Divorce) Act, 1986
20
Sakinabai v. Fakruddin, 1999(11) D.M.C. 576
Page 19

under Section 125 of Cr.P.C.
All applications by divorced Muslim women under Section
125, Criminal Procedure Code pending at the commencement of the Muslim Women Act,
would be governed by the provisions of Muslim Women Act, 1986.21Under Section 7 of the
Muslim Women Act, all applications filed by a divorced woman under Section 125 or
under Section 127 of the Cr. P.C. which are pending for disposal before the Magistrate on the
date of the commencement of the Act are required to be disposed of by the Magistrate in
accordance with the provisions of the said Act.22
In view of Section 7 of the Act it is clear that if any application by a divorced woman under
Section 125 or under Section 127 of the Code of Criminal Procedure, 1973 was pending
before a Magistrate on the commencement of the said Act, the application shall,
notwithstanding anything contained in the Criminal Procedure Code and subject to the
provisions of Section 5 of the Act, be disposed of by such Magistrate in accordance with the
provisions of the Act. In other words the Magistrate was bound to apply the provisions of
the Muslim Women Protection Act to all pending applications. In the present case admittedly
the application which was pending was under Section 125 of Cr.P.C. and hence would have
been normally covered by the provisions of Section 7 of the said Act.23 Section 7 of the
Muslim Women Act which provides that all applications under section 125 and section 127 of
the Code pending on the commencement of the said Act barring those governed by section
5 thereof have to be dealt with in accordance with the provisions of the Muslim Women Act,
makes it abundantly clear that after commencement of the Muslim Women Act, a divorced
21
Abdul Rashid (Dr.) vs Mst. Farida W/O Abdul Rashid on 9 October, 1993
22
23
Mahamadrafik Akbar Bagwan vs Nurbegam Mahamadrafik Bagwan And ... on 15 December, 1998
Page 20

Muslim women cannot apply for maintenance by invoking the provisions of Chapter IX of the
Code.24
3. Whether the maintenance contemplated under Section 3(1)(a) of the Act of
1986 is restricted only for the period of iddat?
It is humbly submitted before this Honourable Court that Section 3(1)(a) of The Muslim
Women (Protection of Rights on Divorce) Act, 1986 entitles a Muslim divorced woman to a
reasonable and fair provision and maintenance to be made and paid to her within the iddat
period by her former husband.
3.1 That there is no provision for payment of maintenance by the husband beyond Iddat
period under the Act.
As has been submitted earlier by the Respondent that Section 3 of the Act of 1986 has an
overriding effect and it applies to a divorced Muslim woman, notwithstanding anything
contained in any other law for the time in force. Therefore, the Act of 1986 seems to override
the law contained in Section 125, Cr.P.C. Since, the Section 3 of the Act of 1986 stipulates
the time for the providing of maintenance to a Muslim divorced wife by her former husband
only upto the period of Iddat, thus, it is not incumbent upon the husband to provide
maintenance to his divorced Muslim wife beyond the period of Iddat.
In Usman Khan Bahmani Vs Fathimunisa Begum, 25 the Court reiterated the contents of
the Act of 1986 and dismissed the interpretation of Shah Bano Begum case in para 27
stating maintenance may be payable only for the period of Iddat. The Court stated that the
interpretation that the liability to make fair and reasonable provision for the wife may extend
beyond the period of Iddat as well is clearly not sustainable in the light of the principles of
Mohammedan law and under the provisions of Section 3 of the Act of 1986. The Honourable
24
Karim Abdul Rehman Shaikh vs Shehnaz Karim Shaikh & Others on 11 July, 2000
AIR (1990) AP 225
25
Page 21

High Court referred to classical authorities and particularly in para 29 of "The Hedaya"
which is the classical work of Muslim law applicable to the predominant Sunni Sect of
Muslims, in Section 3 (Book IV, page 406), it is stated that where a man divorces his wife,
her subsistence and lodging are incumbent upon him during the term of her Iddat, whether
the divorce be of the reversible or irreversible kind. The Holy Quran in Verse 228 says
"Divorced women shall wait concerning themselves for three monthly periods. This is the
period of Iddat." The Court once again reiterated contents of Mulla's Principles of
Mahomedan Law on iddat although the same was consciously not relied on by the
Supreme Court in the case of Shah Bano Begum. The Honourable Court held that there is a
consensus of opinion among all the eminent authors on Muslim Law, such as Tyabji, Ameer
Ali, Fyzee and others, that a divorced woman is entitled to maintenance only during the
period of Iddat. Apart from Hedaya, which is the classical work of Sunni law, the classical
work of Immania which is a treatise on Shia Law and Baillie which deals both with Shia and
Sunni aspects of law are all uniform that a divorced woman is entitled to maintenance for the
period of Iddat only. From Ss. 3 and 4 broadly speaking it can be said that the following
rights are conferred upon a divorced woman:
(1) She is entitled to have a reasonable and fair provision and maintenance from her husband.
That is to be made and paid to her within the iddat period. The determination of reasonable
(sic) the needs of the divorced woman, the standard of life enjoyed by her during her
marriage and the means of her former husband. Apart from this she is entitled to have "mahr"
or "dower" and return of her properties.
(2) If she has not remarried after the iddat period and is not able to maintain herself, then she
is entitled to her maintenance (maintenance only) from her relatives who are entitled to
inherit her property on her death, at such periods as directed by the Magistrate; and (3) If her
Page 22

relatives are not in a position to pay such maintenance, she is entitled to get it from the Wakf
Board at such periods as specified by the Magistrate. 26The husband's liability to pay
maintenance to a divorced wife ceases the moment iddat period gets over. He has to pay
maintenance to her within the iddat period for the iddat period.27
Striking feature would be that there is no saving clause provided under this Act by which any
order passed in favour of a divorced Muslim woman, under 125 of the Code could be
validated or liability created in the husband in this regard could be held valid or
enforceable.28
3.2 That the Act divests the husband from providing maintenance to the Muslim divorced
wife beyond the period of Iddat.
It is humbly submitted before this Honourable Court that Section 4 of the Act of 1986, like its
preceding Section 3 too possesses an overriding effect and facilitates to make provision for
the maintenance of a Muslim divorced wife beyond the period of Iddat, notwithstanding
contained in the foregoing provisions of this Act or any other law for the time being in force.
4. Order for payment of maintenance.
(1)Notwithstanding anything contained in the foregoing provisions of this 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
26
Arab Ahemadhia Abdulla And Etc. vs Arab Bail Mohmuna Saiyadbhai And ... on 18 February, 1988
27
Karim Abdul Rehman Shaikh vs Shehnaz Karim Shaikh & Others on 11 July, 2000
28
Md. Unus v. Bibi Phenkani @ Tasrun Nisa and Anr.
Page 23

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:
Provided that where such divorced woman has children, the Magistrate shall order
only such children to pay maintenance to her, and in the event of any such children being
unable to pay such maintenance, the Magistrate shall order the parents of such divorced
woman to pay maintenance to her:
Provided further that if any of the parents is unable to pay his or her share of the
maintenance ordered by the Magistrate on the ground of his or her not having the means to
pay the same, the Magistrate may, on proof of such inability being furnished to him, 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.
(2).Where a divorced woman is unable to maintain herself and she has no relative as
mentioned in sub-section (1) or such relatives or any one of them have not enough means to
pay the maintenance ordered by the Magistrate or the other relatives have not the means to
pay the shares of those relatives whose shares have been ordered by the Magistrate to be
paid by such other relatives under the second proviso to sub-section (1), the Magistrate may,
by order direct the State Wakf Board established under section 9 of the Wakf Act, 1954 (29 of
1954), or under any other law for the time being in force in a State, functioning in the area in
which the woman resides, to pay such maintenance as determined by him under sub-section
(1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at
such periods as he may specify in his order.29
29
Section 4, Muslim Women (Protection of Rights on Divorce) Act,1986.
Page 24

A meticulous perusal of the above-mentioned Section conveys that the husband of a Muslim
divorced wife has been completely divested of his responsibility to provide maintenance to
his divorced wife beyond the period of Iddat. Section 4 of the Act casts the responsibility
for the maintenance of a Muslim divorced woman who has not remarried, upon the relatives
of such woman who are entitled to inherit her property on her death according to Muslim
Law, having regards 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. Moreover, this
Section 4 provides that if such woman has children, it is the responsibility of the children to
pay maintenance to her, failing them it would be shouldered by the parents of such woman.
If, according to this Section, such relatives have no means to pay such maintenance, the
Magistrate is empowered to order the Sate Wakf Board under section 9 of the Wakf Act,
1954 to provide such maintenance to such woman.
The High of Court of Kerela refused to extend the Muslim womens right to maintenance
against her husband beyond the Iddat period and held that section 3 and 4 of the Act of 1986
should be interpreted within the legislative framework. The Honourable High Court of
Kerela held under Section 3, former husband is liable for the payment of maintenance for the
Iddat period and to make reasonable and fair provision for the post-Iddat period. If in spite of
reasonable and fair provision made for the post-Iddat period, she faces destitution,
Section 4 comes to her rescue. We do not agree that the Scheme of Section 4 casting on
relatives of the divorced woman liability for, maintenance should lead to a narrow and
technical interpretation of Section 3.30 Under Section 4 of the Muslim Women Act a
divorced women is entitled to get maintenance from her relatives such as her children or
30
Allar Vs Pathu MANU/KE/0320/1988
Page 25

parents or from Wakf Board if she is not able to maintain herself after the iddat period from
the provision and maintenance made and paid by her former husband.31
Thus, the petitioner is not entitled to get any maintenance beyond the iddat period as no
provision of law extends the liability of husband to provide maintenance beyond iddat period.
The husband has already performed his part of obligation and has rightly discharged his
duties and his liabilities.
31
Page 26

PRAYER
Wherefore in the light of aforesaid facts, issues raised, arguments advanced and
authorities cited, it is most humbly prayed that this Honourable Court may graciously
be pleased to:
1. Dismiss the petition filed by the petitioner on merits.
2. Uphold the judgement of the High Court, which provides for maintenance
till iddat period only, as being correct and final.
Or grant such other relief as the Court may deem fit in the light of justice,
equity and good conscience.
And For This Act of Kindness the Respondent Shall Duty Bound Ever
Pray
COUNSEL(S) FOR THE RESPONDENT
Page 27

Memorial On Behalf of Respondent Nehru Memorial Law College National Moot Court Competition

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Memorial On Behalf of Respondent Nehru Memorial Law College National Moot Court Competition

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Nehru law College National Moot Court Competition, 2015

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

Under Article 136 of the Constitution of India

ON SUBMISSION TO THE HONOURABLE SUPREME COURT OF INDIA

MOST RESPECTFULLY SUBMITTED

COUNSELS APPEARING ON BEHALF OF NEYAZ

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

All India Reporter

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Md. Unus v. Bibi Phenkani @ Tasrun Nisa and Anr

(1988) 1 Raj LR 104

Nurbegam 15 December, 1998

Mahamadrafik Bagwan And ... on

Md. Yunus v. Bibi Phenkani alias Tasrun Nisa

Nagoor Mohamed Farooq And Others vs Smt. Kar 2000

(1981) 1 S.C.R. 402

1999(11) D.M.C. 576

Usman Khan Bahmani Vs Fathimunisa Begum

AIR (1990) AP 225

Written Submission on behalf of the Respondent

(1987) 2 crimes 241.

Nehru law College National Moot Court Competition, 2015

Aqil Ahmads Mohammedan Law, 25th Edition, Central Law Agency

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Narpat Singh v. Jaipur Development Authority AIR 2002 SC 2036

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Jamshed Hormurji Wadia v. Board of Trustees, Port of Mumbai.

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Section 5, Muslim Women (Protection of Rights on Divorce) Act, 1986.

A.A. Abdulla v. Mohmuna Saiyadbhai AIR 1988 Guj 141

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Usman Khan Bahmani Vs Fathimunisa Begum AIR (1990) AP 225

AIR 1985 SC 945.

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Written Submission on behalf of the Respondent

Nehru law College National Moot Court Competition, 2015

Aqil Ahmad, Mohammedan Law, 23rd Edition.

Abid Ali v. Mst. Raisa Begum (1988) 1 Raj LR 104.

Rizwana Begum v. Matiullah 1989 Cr.LJ (NOC) 155 Ori.

Sir Dinshaw Fardunji Mulla, 18th Edition, at p.301.