SUBMISSION

OF

MOOT COURT CASE

SUBMITTED TO- SUBMITTED BY-

DEPARTMENT OF LAW ARUN SINGH CHANDEL

V.S.S.D. COLLEGE, KANPUR ROLL NO. 0801460

12TH MAY 2015 6TH SEMESTER

 IN THE SUPREME COURT OF INDIA
[CRIMINAL APPELLATE JURISDICTION]

WRIT PETITION (CRIMINAL) NO. 40 OF 2015

IN THE MATTER OF

Salim……………………...Petitioner

Vs

Shabnam………………….Respondent

COUNTER AFFIDAVIT FILED ON BEHALF OF THE RESPODENT

I, Mrs. Shabnam D/o Mr. Salman Rashid, Muslim, aged about 40 years, resident
of 54/92, Old Kanpur, do hereby solemnly affirm and state as under:

A. I am fully conversant with the facts and circumstances of this case as

disclosed by relevant records and file. I swear this Counter Affidavit as the
respondent in this case.
B. This respondent has perused the affidavit filed by the petitioner in support of
the above writ petition and denies each and every one of the averments and
allegations contained in the affidavit.

PRELIMINARY SUBMISSIONS:-

Para 1: That in the first instance the petitioner has submitted that the petitioner
had filed a writ petition on 2nd May 2015, praying for setting aside of the order
of the High Court at Judicature at Allahabad dated 20 th April, 2015 in which the
Hon’ble High Court has mentioned that the respondent can invoke Section 125
of Code of Criminal Procedure, 1973 and file a fresh application before the
magistrate for claiming maintenance after her divorce with the petitioner. The
petitioner has also submitted that the respondent cannot invoke Section 125 of
CrPC, 1973 after enactment of The Muslim Women (Protection of Rights On
Divorce) Act, 1986 and Section 5 of the Act must be complied with for
invoking Section 125 of CrPC.

Para 2: That the petitioner has also prayed for setting aside of the part of the
same order in which the Hon’ble court has directed the appellant to pay
maintenance to the respondent beyond the Iddat period. The petitioner has
contended that the maintenance paid by the petitioner to the respondent u/s 3(1)
(A) during the Iddat period suffices the payment of maintenance to the
respondent and any payment of maintenance beyond the Iddat period is not
justified as per law. Therefore the petitioner has prayed that he should be
exempted from paying any maintenance to the respondent beyond the Iddat
period.

PARA-WISE REPLY:-

PARA-1 REPLY

1. To appreciate the controversy of Section 125 of CrPC and the Muslim

Women (Protection of Rights on Divorce) Act, 1986 it is important to quote the
Hon’ble Supreme Court’s judgement in the historical Mohd. Ahmed Khan v.
Shah Bano Begum and others [(1985) 2 SCC 556], in the said case Shah Bano
Begum had initially filed an application under section 125 of CrPC asking for
maintenance from her husband after divorce. The learned Magistrate had
granted monthly maintenance for a particular sum which was enhanced by the
High Court in exercise of revisional jurisdiction. The core issue before the
Constitution Bench was whether a Muslim divorced woman was entitled to
grant of maintenance under Section 125 of the Code. Answering the said issue,
the larger Bench opined that a divorced Muslim wife is entitled to apply for
maintenance under Section 125 of the Code and that mahr is not such a quantum
based on which the husband can wash his hand from his liability under the
Code, and would not bring him under Section 127(3)(b) of the Code.
2. After the aforesaid decision was rendered, the Parliament enacted the Muslim
Women (Protection of Rights on Divorce) Act, 1986.

3. The constitutional validity of the Section 125 of the CrPC and various
sections of the Muslim Women (Protection of Rights On Divorce) Act, 1986
were examined in the landmark judgement in Danial Latifi and another v.
Union of India [(2001) 7 SCC 740] wherein the Constitution bench referred to
the Statement of Objects and Reasons of the Act, took note of the true position
of the facts laid down in Shah Bano’s case and after undressing several issues
gave the constitutional validity of the Act. The bench had opined the following
in their judgement:

a) “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 those who
can do so to support those who are unable to support themselves and who
have a normal and legitimate claim to support are 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.

b) The object and scope of Section 125 CrPC 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.

c) Even under the Act, the parties agree 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.”

4. In view of the landmark decision in Danial Latifi and another v. Union of

India (supra) it is further submitted that the respondent is entitled to invoke
Section 125 of CrPC no matter whether the Section 5 of the Muslim Women
(Protection of Rights On Divorce) Act, 1986 has been complied with or not. To
support this submission, the respondent will like to draw reference to the Case-
Law of Supreme Court of India, Khatoon Nisa v. State of U.P. and Ors. [JT
2002 (7) SC 631] where the Hon’ble court has opined the following:

“Subsequent to the enactment of the Muslim Women (Protection of

Rights on Divorce) Act, 1986 (for short "the Act") as it was considered
that the jurisdiction of the magistrate under Section 125 Cr. P.C. can be
invoked only when the condition precedent mentioned in Section 5 of the
Act are complied with, in the case in hand, the magistrate came to a
finding that there has been no divorce in the eye of law and as such, the
magistrate has the jurisdiction to grant maintenance under Section 125 of
the Cr. P.C.
This finding of the magistrate has been upheld by the High Court. The
validity of the provisions of the Act was for consideration before the
constitution bench in the case of Danial Latifi and Anr. v. Union of India.
In the said case by reading down the provisions of the Act, the validity of
the Act has been upheld and it has been observed that under the Act itself
when parties agree, the provisions of Section 125 Cr. P.C. could be
invoked as contained in Section 5 of the Act and even otherwise, the
magistrate under the Act has the power to grant maintenance in favour of
a divorced woman, and the parameters and considerations are the same as
those in Section 125 Cr. P.C.. It is undoubtedly true that in the case in
hand, Section 5 of the Act has not been invoked.
Necessarily, therefore, the magistrate has exercised his jurisdiction under
Section 125 Cr. P.C. But, since the magistrate retains the power of
granting maintenance in view of the constitution bench decision in Danial
Latifi's case (supra) under the Act and since the parameters for exercise
of that power are the same as those contained in Section 125 Cr. P.C., we
see no ground to interfere with the orders of the magistrate granting
maintenance in favour of a divorced Muslim woman”.

5. Also recently, in Shabana Bano v. Imran Khan [ILC-2009-SC-MAT-Dec-

2], a two Judge Bench, placing reliance on Danial Latifi case, has ruled that:

“The appellant’s petition under Section 125 CrPC would be maintainable

before the Family Court as long as the appellant does not remarry. The
amount of maintenance to be awarded under Section 125 CrPC cannot be
restricted for the iddat period only.”

The principle stated applies in consonance with the principle stated by the
Constitution Bench in Khatoon Nisa’s case.
In the light view of Danial Latifi and another v. Union of India, the case
law of Khatoon Nisa v. State of U.P. and Ors. and Shabana Bano v. Imran
Khan, It is submitted that the divorced Muslim women can invoke the
provisions of Section 125 Cr. P.C. as contained in Section 5 of the Act. The
Khatoon Nisa v. State of U.P. case law specifically mentions that the
divorced woman is also entitled to receive maintenance from her former
husband even when Section 5 of the Act is not invoked.

Therefore the respondent strongly rejects the contention and claims made by the
petitioner as per para 1(supra).

PARA-2 REPLY

6. In the same Danial Latifi and another v. Union of India [(2001) 7 SCC
740] the Hon’ble court also gave important viewpoints on the matter of payment
of maintenance to a divorced Muslim wife on the basis of iddat period. The
bench had opined the following in their judgement:

“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”.

7. The respondent will also like to draw reference to the Case-Law of Supreme
Court of India, Shamim Bano v. Asraf Khan [2014 STPL (Web) 286 SC]
where the Hon’ble Court has stated the following:

“Coming to the case at hand, it is found that the High Court has held that
as the appellant had already taken recourse to Section 3 of the Act after
 divorce took place and obtained relief which has been upheld by the High
Court, the application for grant of maintenance under Section 125 of the
Code would only be maintainable till she was divorced. It may be noted
here that during the pendency of her application under Section 125 of the
Code the divorce took place. The wife preferred an application under
Section 3 of the Act for grant of mahr and return of articles. The learned
Magistrate, as is seen, directed for return of the articles, payment of
quantum of mahr and also thought it appropriate to grant maintenance for
the Iddat period. Thus, in effect, no maintenance had been granted to the
wife beyond the Iddat period by the learned Magistrate as the petition was
different. We are disposed to think so as the said application, which has
been brought on record, was not filed for grant of maintenance. That
apart, the authoritative interpretation in Danial Latifi (supra) was not
available. In any case, it would be travesty of justice if the appellant
would be made remediless. Her application under Section 125 of the
Code was continuing. The husband contested the same on merits without
raising the plea of absence of consent. Even if an application under
Section 3 of the Act for grant of maintenance was filed, the parameters of
Section 125 of the Code would have been made applicable. Quite apart
from that, the application for grant of maintenance was filed prior to the
date of divorce and hearing of the application continued”.

In the light view of Danial Latifi and another v. Union of India and Case-
Law of Shamim Bano v. Asraf Khan The Hon’ble Court has
unambiguously held that a Muslim husband is liable to make a 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. His liability, arising from Section 3 of the Muslim Women
(Protection of Rights on Divorce) Act to pay maintenance, “is not confined
to the iddat period.”

Therefore with respect to the conclusions of the above case-law, the respondent
strongly disapprove the assertions of the petitioner contained in para 2 (supra).

In the view of the foregoing facts it is most humbly prayed that this Hon’ble
Court may be pleased to dismiss the above said petition and pass such further or
other orders as this Hon’ble Court may deem fit and proper in the facts and
circumstances of the case and thus render justice.
All the facts stated above are true and correct to the best of my knowledge,
information and belief.

Dated this the 12th day of May 2015

DEPONENT

Solemnly affirm and signed before me by the deponent, who is personally

known to me this the 8th day of May 2015 in my office at 45 Tilak Marg, Near
Supreme Court of India, New Delhi.

BEFORE ME

ARUN SINGH CHANDEL

ADVOCATE