Sunday, April 27, 2014

Rajiv Assassination Convicts Remission Case Referred to Constitutiona Bench by Supreme Court of India



 Rajiv Gandhi Assassination Convicts Remission Case Referred to Constitutional Bench by Supreme Court of India

Key Points:

In a significant judgement impacting Indian criminal justice system ,the hon'ble supreme court referred Rajiv Gandhi convicts remission case to constitutional bench to give certain clarifications pertaining to remission.    

Why Union of India filed this case?

The State of Tamil Nadu, in their letter dated 19.02.2014, sought for views of the Union of India for the release of Respondent Nos. 1-7 in Writ Petition (Criminal) No. 48 of 2014 within three days from the date of receipt of the same, the Union of India filed the above criminal misc. petitions before this Court praying for restraining the State Government from passing any order of remission and releasing them from prison.

What Criminal Procedure Says on remission or commutation in certain case:

Section 435 -State Government to act after consultation with Central Government in certain cases (1) The powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence,in any case ,where the sentence is for an offence—(a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or (b) which involved the misappropriation or destruction of,or damage to, any property belonging to the Central Government,or (c) which was committed by a person in the service of the Central Government, while acting or purporting to act in the discharge of his official duty.shall not be exercised by the State Government except after consultation with the Central Government.

Whether State empowered to grant remission and what is Constitutional provision for the state? : 

State subject, Mr. Jethmalani relied on Entry 4 of List II, State List, which reads as under: “Prisons, reformatories, borstal institutions and other institutions of a like nature, and persons detained therein; arrangements with other states for the use of prisons and other institutions.” Section 59 of the Prisons Act, 1894 specifically empowers the State Government to make rules on the following: “(5) For the award of marks and shortening of sentences; (21) For rewards for good conduct;…(27) In regard to the admission, custody, employment, dieting, treatment and release of prisoners.” This clearly shows that granting of remission for good conduct and determination of premature release is exclusively within the domain of the State Government and falls squarely within Entry 4, List II.

What are the Questions before Constitution Bench :

(i)           Whether imprisonment for life in terms of Section 53 read with Section 45 of the Indian Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda (supra), a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?
(ii)          Whether the “appropriate Government” is permitted to exercise the power of remission under Section 432/433 of the Code after the parallel power has been exercised by the President under Article 72 or the Governor under Article 161 or by this Court in its Constitutional power under Article 32 as in this case?
(iii)        Whether Section 432(7) of the Code clearly gives primacy to the executive power of the Union and excludes the executive power of the State where the power of Union is co-extensive? (iv) Whether the Union or the State has primacy over the subject matter enlisted in List III of Seventh Schedule of the Constitution of India for exercise of power of remission?(v) Whether there can be two appropriate Governments in a given case under Section 432(7) of the Code? (vi) Whether suo motu exercise of power of remission under Section 432(1) is permissible in the scheme ofthe section if, yes whether the procedure prescribed in sub-clause (2) of the same Section is mandatory or not?
(iv)        Whether the term “consultation” stipulated in Section 435(1) of the Code implies “concurrence”? 49) All the issues raised in the given case are of utmost critical concern for the whole of the country, as the decision on these issues will determine the procedure for awarding sentences in the criminal justice system.


Full Text of judgement :

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO. 48 OF 2014
Union of India .... Petitioner(s)
Versus
V. Sriharan @ Murugan & Ors. ...        .Respondent(s)
WITH
WRIT PETITION (CRL.) NO. 105 OF 2008 CRL. M.P. NO.4622 OF 2014 IN T.C. (CRL.) NO.1 OF 2012 CRL. M.P. NO. 4623 OF 2014 IN T.C. (CRL.) NO. 2 OF 2012 CRL. M.P. NO. 4624 OF 2014 IN T.C. (CRL.) NO. 3 OF 2012
J U D G M E N T
P. Sathasivam, CJI.
Writ Petition (Crl.) No. 48 of 2014

1) This writ petition, under Article 32 of the Constitution of India, has been filed by the Union of India praying for quashing of letter dated 19.02.2014, issued by the Chief  Secretary, Government of Tamil Nadu to the Secretary, Government of India wherein the State of Tamil Nadu proposes to remit the sentence of life imprisonment and to release Respondent Nos. 1-7 herein who were convicted in the Rajiv Gandhi Assassination Case in pursuance of commutation of death sentence of Respondent Nos. 1-3 herein by this Court on 18.02.2014 in Transferred Case Nos. 1-3 of 2012 titled V. Sriharan @ Murugan & Ors. vs. Union of India & Ors. 2014 (2)SCALE 505. Writ Petition (Crl.) No. 105 of 2008

2) In the above writ petition, the petitioner who has been arrayed as Respondent No. 6 in Writ Petition (Crl.) No. 48 of 2014 (filed by the Union of India) prays for quashing of G.O. No. 873 dated 14.09.2006, G.O. No. 671 dated 10.05.2007 and G.O. (D) No. 891 dated 18.07.2007 issued by the State of Tamil Nadu, Home Department as the same are unconstitutional.In effect, the petitioner prayed for remission of his sentence, which was rejected by the Advisory Board. Criminal M.P. Nos. 4622-24 of 2014

3) When the State of Tamil Nadu, in their letter dated 19.02.2014, sought for views of the Union of India for the release of Respondent Nos. 1-7 in Writ Petition (Criminal) No. 48 of 2014 within three days from the date of receipt of the same, the Union of India filed the above criminal misc. petitions before this Court praying for restraining the State Government from passing any order of remission and releasing them from prison.

Factual Background:

4) Pursuant to the judgment of this Court dated 18.02.2014 in V. Sriharan @ Murugan (supra), the Government of Tamil Nadu took a decision to  grant remission to Respondent Nos. 1 to 7. Accordingly, the Government of Tamil Nadu sent a letter dated 19.02.2014 to the Secretary to the Government of India, Ministry of Home Affairs, stating that it proposes to remit the sentence of life imprisonment on V. Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G. Perarivalan @ Arivu and release them. In that letter, it was further stated that four other persons, namely, Jayakumar, Robert Payas, S. Nalini and P. Ravichandran, convicted in the same assassination would also procure similar remission. Besides, it was asserted in the letter that since the crime was investigated by the Central Bureau of Investigation (CBI) and as per Section 435 of the Code of Criminal Procedure, 1973 (in short “the Code”), the State Government, while exercising its power under Section 432 of the Code, must act after consultation with the Central Government, accordingly,it requested to indicate the views of the Union of India within three days on the proposal to release the seven persons mentioned above. 5) Accordingly, in these matters, we are called upon to decide the legitimacy of the proposal of the State Government to release Respondent Nos. 1 to 7, who are facing life sentence. For the purpose of disposal of the issue in question, we reiterate the relevant provisions. Sections 432 and 435 of the Code read as under: “432 - Power to suspend or remit sentences (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any lime, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the  conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a  certified copy of the record of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission,and thereupon the person in whose favour the  sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
(5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with: Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years,no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and, (a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or (b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.

(6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his properly.(7) In this section and in section 433, the expression "appropriate Government" means,—(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;(b) in other cases the Government of the State within which the offender is sentenced or the said order is passed. 435 - State Government to act after consultation with Central Government in certain cases (1) The powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence,in any case where the sentence is for an offence—(a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or (b) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or  (c) which was committed by a person in the service of the Central Government, while acting or purporting to act in the discharge of his official duty.shall not be exercised by the State Government except after consultation with the Central Government.
(2) No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends.”
6) In addition to the above provisions of the Code, we are concerned with certain provisions of the Constitution of India also. Article 73 speaks about the extent of executive power of the Union, which reads as under:“73 - Extent of executive power of the Union (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend--(a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty on agreement:Provided that the executive power referred to in subclause(a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws….”

7) Article 162 of the Constitution deals with the extent of executive power of the State, which reads as follows: “162 - Extent of executive power of State Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any lawmade by Parliament upon the Union or authorities thereof.”
8) Heard Mr. Goolam E. Vahanvati, learned Attorney General of India for the petitioner-Union of India, Mr. Ram Jethmalani, learned senior counsel and Mr. Yug Mohit Choudhary, learned counsel for Respondent Nos. 1-5 and 7 in W.P. (Crl.) No. 48 of 2014 and Mr. Sanjay R. Hegde, learned counsel for the petitioner in W.P. (Crl.) No. 105 of 2008 and Respondent No. 6 in W.P. (Crl.) No. 48 of 2014 and Mr. Rakesh Dwivedi, learned senior counsel for the State of Tamil Nadu.
Contentions of the Petitioner:
9) At the outset, learned Attorney General appearing for the Union of India submitted that what is proposed to be done by the State of Tamil Nadu in exercise of power of remission in the present case is illegal and without jurisdiction for the following reasons:a)The State Government is not the ‘appropriate Government’ in the present case.b)The State Government had no role to play in the present case at any stage.c)Alternatively, without prejudice, the proposal by the State Government is contrary to law, and does not follow the procedure set out under the Code.
10) Learned Attorney General pointed out that from a bare reading of the definition of “appropriate Government” under Section 432(7) of the Code reveals that in cases where the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends, the “appropriate Government” in that respect would be the Central Government. It is the stand of the Union of India that this provision clearly gives primacy to the executive power of the Union and excludes the executive power of the State where the power of the Union is co-extensive.
11) It is further pointed out that as per the proviso to Article 73, the executive power of the Union referred to in Article 73(1)(a) shall not, save as expressly provided in the Constitution or in any law made by the Parliament, extend in any State to matters with respect to which the Legislature of the State also has power to make laws. It is argued that the proviso to Article 73 is excluded by Section 432(7) of the Code as it is only applicable where there is no express provision to maintain the executive power of the Union. Similarly, proviso to Article 162 of the Constitution limits the executive power of the State with respect to any matter where both the Legislature of the State and the Parliament have power to make laws, where the Constitution or any law has expressly conferred executive power upon the Union. Thus, it was submitted that the proviso contemplates that the executive power of the State may be overcome by the executive power of the Union through the provisions of the Constitution or any other law made by the Parliament. The Code is, therefore, one avenue through which this may be done and has been exercised through Section 432(7) to give primacy to the executive power of the Union. Learned Attorney General further submitted that based on a reading of Articles 73 and 162 read with Section 432(7) of the Code, the “appropriate Government” in the present case would be the Central Government, as the Indian Penal Code falls under the concurrent List, to which the executive power of the Union also extends.
12) Learned Attorney General further pointed out that Articles 73 and 162 must also be read subject to Article 254 of the Constitution, which gives primacy to the law made by the Parliament. In this regard, reliance has been placed by learned Attorney General on the decision of this Court in S.R. Bommai vs. Union of India, (1994) 3 SCC 1 and he asserted that the above decision completely displaces the stand of the State Government with regard to the Concurrent List. Further, it was submitted that it is not possible to split up the Sections under which the conviction was made since it would lead to a completely absurd situation where for some offences the Central Government would be the appropriate Government, and in respect of others, the State Government would be the appropriate Government.
13) In any case, it is the stand of the Union of India that since the State Government had consented for the case to be investigated and prosecuted by the CBI via the consent order dated 22.05.1991 under Section 6 of the Delhi Special Police Establishment Act, 1946, which was followed by the Central Government Notification dated 23.05.1991, ensuing which the entire investigation of the case was handed over to the CBI, at this stage, the State cannot claim that it is the appropriate Government. In this regard, the Union of India relied on the observations of this Court in the case of Lalu Prasad Yadav vs. State of Bihar, (2010) 5 SCC 1.
14) Besides, the Union of India further submitted that the State Government, without considering the merits and facts of the case, hastily took a decision to remit the sentence and release seven convicts which is contrary to the statutory provisions and also to the law laid down by this Court. It is pointed out that application of mind has been held to be necessary, which is entirely lacking in the present case. There are no cogent reasons given in the letter dated 19.02.2014, apart from the reliance on the judgment of this Court.
15) In addition, it is the stand of the Union of India that the State Government could not have suo motu, without an application, initiated the process of remitting the sentence and releasing the convicts. In this regard, the Union of India relied on the decision of this Court in Mohinder Singh vs. State of Punjab, (2013) 3 SCC 294 wherein this Court held that the exercise of power under Section 432(1) of the Code cannot be suo motu. It was further held as under: “27. … …. We are of the view that exercise of power by the appropriate Government under sub-section (1) of Section 432 of the Code cannot be suo motu for the simple reason that this is only an enabling provision and the same would be possible subject to fulfilment of certain conditions. Those conditions are mentioned either in the Jail Manual or in statutory rules. This Court in various decisions has held that the power of remission cannot be exercised arbitrarily. In other words, the decision to grant remission has to be well informed, reasonable and fair to all concerned….. “ Thus, it was submitted that the law laid down in para 27 of Mohinder Singh (supra) cannot be sidelined by the State Government.
16) Alternatively, it is submitted that assuming Section 435(2) of the Code is applicable, the use of the term ‘consultation’ under Section 435(1) of the Code should be interpreted to mean ‘concurrence’. Reference in this regard is made to the judgment of this Court in State of Gujarat vs. R.A. Mehta, (2013) 3 SCC 1, wherein it was held as under: “32. However, in a situation where one of the consultees has primacy of opinion under the statute,either specifically contained in a statutory provision, or by way of implication, consultation may mean concurrence.”
17) In addition to all the above submissions, learned Attorney General formulated an alternative contention and submitted that once the death sentence of a convict has been commuted into life imprisonment, the same has to be interpreted to mean the entire life of the convict and the executive cannot exercise the power of remission of sentence thereafter. In this regard, reliance was placed on Swamy Shraddananda vs. State of Karnataka, (2008) 13 SCC 767.
Contentions of Respondents:
18) In reply to the above submissions, Mr. Rakesh  Dwivedi, learned senior counsel for the State of Tamil Nadu submitted that “appropriate Government” as defined in Section 432(7) of the Code is the State Government in the present case.
19) Learned senior counsel for the State submitted that the Central Government is the appropriate Government where sentence is for an offence against any law relating to a matter to which the executive power of the Union extends. Likewise, Article 73 of the Constitution of India makes executive power of the Union co-extensive with Parliament’s law making power and power relating to treaties/agreement. However, it is the stand of the State that the proviso stipulates that power referred to in subclause (a) would not extend in any State to matters relating to the Concurrent List of the seventh Schedule of the Constitution save where the Constitution or law of Parliament expressly provides. This interpretation of the proviso to Article 73 corresponds with the reading of the proviso to Article 162. It is the stand of the State of Tamil Nadu that Section 434 of the Code is one such provision but it makes the Central Government’s power in cases of sentence of death concurrent and not dominant. There is no other provision in Section ‘E’ of Chapter XXXII or otherwise of the Code which subordinates the executive power of the State in the Concurrent field of legislation to the executive power of the Union in matters of remission,commutation, pardons etc.
20) Learned senior counsel for the State pointed out that Article 72(3) of the Constitution expressly saves the power of the States under Article 161 and other laws to grant remission or commutation of sentence of death from the impact of Article 72(1)(c) which confers power on the President qua all sentences of death. On a plain reading of the executive power of the State under Article 162, the same being co-extensive with the legislative power would extend to the concurrent field under List III.
21) Alternatively, Mr. Dwivedi submitted that Entry 1 of List III of the Seventh Schedule of the Constitution excludes offences against law with respect to matters in List I and List II. Indian Penal Code is mentioned in Entry 1 of List III. IPC involves offences which relate to different subject matters, some of which fall in List I and List II. Mr.Dwivedi submitted that in G.V. Ramanaiah vs. Supt. Of Central Jail, (1974) 3 SCC 531,since the subject matter was related to List I, the Central Government was held to be appropriate Government. However, he highlighted that in State of M.P. vs. Ratan Singh, (1976) 3 SCC 470 (paras 5 & 6), State of M.P. vs. Ajit Singh, (1976) 3 SCC 616 (para 2) and Government of A.P. vs. M.T. Khan,(2004) 1 SCC 616 (para 10), it was held that the appropriate Government is the Government of that State alone where the conviction took place and not where the convict is detained.
22) Learned senior counsel for the State also pointed out that while Section 55A(b) of IPC makes the State Government the appropriate Government relating to matter to which executive power of the State extends, it is the Government of that State within which the offender is sentenced and under Section 432(7)(b) of the Code in cases other than those mentioned in clause (a), the State Government is the appropriate Government. However, Section 432(7)(b) of the Code is wider than Section 55A(b) of IPC. It would cover matters in List III of the Seventh  Schedule of the Constitution too. Section 435(2) of the Code also is indicative of the above. In a case like the present one, some offences may relate to matters to which the executive power of the Union extends, while other offences may, in the same case and qua same person, relate to matters to which the executive power of the State extends. If in such cases, a person has been sentenced to separate terms of imprisonment which are to run concurrently, then unless an order has been made by the Central Government in relation to offences to which its executive power extends, the order of the State Government would not be given effect to. The Union could have referred to this provision if the separate terms of sentences under the other Central Acts like Passport Act, Foreigners Act, Explosives Act etc. were still operating and the sentences had not been already served out. Learned senior counsel for the State submitted that in the present case, all other sentences of 2-3 years have been fully served out.
23) It is further submitted by Mr. Dwivedi that public safety is part of public order generally unless it has the dimension of Defence of India or National Security or War.It is followed from the decision in Romesh Thapar vs. State of Madras AIR 1950 SC 124 (para 5) that the State Government of Tamil Nadu is the appropriate Government to consider remission/commutation of sentence under Section 302 read with Section 120B of IPC.
24) As regards the violation of procedural requirements under Section 432(2), learned senior counsel for the State submitted that it involves a procedure which applies only to remission and suspension of sentence and not to cases of commutation as under Section 433. Besides, he asserted that Section 432(2) is applicable only when an application is moved on behalf of the convict for obtaining remission or suspension of sentence. It does not apply when the appropriate Government exercises suo motu power. It was further submitted that the Parliament has thought it fit to confine application of Section 432(2) to cases where an application is made because in such cases the State has not applied its mind and it may like to obtain the opinion of the Presiding Judge of the Court which convicted and sentenced or the confirming court. Hence, it is the stand of the State that the power under Section 432(1) is very wide and it can be exercised suo motu by the appropriate Government. When the power is exercised suo motu then Section 432(2) is not applicable.
25) Alternatively,Mr. Dwivedi submitted that Section 432(2) is not mandatory. He elaborated that it uses the expression “may require”. Ordinarily, this expression involves conferment of discretion and makes the provision directory. This procedure, therefore, would apply where the Government feels the necessity to require an opinion from the Presiding Judge of the Court.
26) As far as the compliance of Section 435 is concerned, it is the stand of the State of Tamil Nadu that it initiated the process of consultation with the Central Government through the impugned letter as the investigation of the given case was done  by the CBI. It is further submitted that it is consultation between two plenary Governments constituted under a Federal structure and the State of Tamil Nadu intends to engage in meaningful and effective consultation wherein the views expressed by the Central Government during the consultation process will certainly be given due consideration. However, it is the stand of the State that consultation does not mean concurrence since the power of the State is a plenary power and States are not subordinate to the Central Government.
27) Thus, Mr. Dwivedi concluded by stating that the expression used in Section 435(1) is “except after consultation”. The Parliament has deliberately not chosen the word “concurrence” as such interpretation would amount to depriving the State Government of its discretion. He pointed out the following cases wherein it has been held that consultation does not mean concurrence:
1. State of U.P. vs. Rakesh Kumar Keshari, (2011) 5 SCC 341 (para 33)
2. L & T McNeil Ltd. vs. Government of Tamil Nadu 2001(3) SCC 170 (paras 41, 61) 3. State of U.P. & Anr. vs. Johri Mal, 2003(4) SCC 714 (para 55) 4. Justice Chandrashekaraiah vs. Janekere C. Krishna, (2013) 3 SCC 117 (paras 134-138, 144, 153- 155).
28) With regard to the contention of the Union of India that once the power of commutation/remission has been  exercised in a particular case of a convict by a Constitutional forum particularly, this Court, then there cannot be a further exercise of the Executive Power for the purpose of commuting/remitting the sentence of the said convict in the same case, Mr. Dwivedi submitted that the said contention is unacceptable since in this case this Court had exercised the judicial power of commuting the death sentence into life imprisonment by judgment dated 18.02.2014. This Court was not exercising any executive power under the Constitution or under the Code. It was exercising its judicial power in the context of breach of Article 21. There is no principle of law put forward to support this submission and the contention has been floated as if it is an axiom. The submission of the Union of India, if accepted, would have horrendous consequences.A convict whose death sentence has been commuted to life imprisonment by this Court on account of breach of Article 21 would have to remain imprisoned necessarily till the end of his life even if he has served out 30-50 years of sentence and has become old beyond 75 years or may be terminally ill yet there would be no power to remit/commute.
29) Besides, it is the stand of the State that when this Court commuted the death sentence into life imprisonment, it did not bar and bolt any further exercise of commutation/remission power by the Executive under the Constitution or under the Code. In fact, it expressly envisaged subsequent exercise of remission power by the appropriate Government under Section 432 subject to procedural checks and Section 433A of the Code.
30) Mr. Dwivedi, further pointed out that even in the absence of such an observation in para 31 of the decision of this Court in V. Sriharan @ Murugan (supra) the legal position would remain the same as this Court does not prevent the exercise of any available power under the Constitution and the statute. In fact it has been laid down in Supreme Court Bar Association vs. UOI, (1998) 4 SCC 409 and Manohar Lal Sharma vs. Principal Secretary, (2014) 2 SCC 532 that even the power under Article 142 cannot be exercised against the statute much less the Constitution. Hence, according to him, the State Government is the appropriate Government.
31) Mr. Ram Jethmalani, learned senior counsel for Respondent Nos. 1 to 5 and 7 adopted similar arguments and emphasized on the meaning of consultation. He extensively referred to First Judges’ case, viz., S.P. Gupta vs. Union of India, (1981) Supp SCC 87 (a seven-judge bench judgment) and heavily relied on para 30 of the judgment:“30. … …. But, while giving the fullest meaning and effect to “consultation”, it must be borne in mind that it is only consultation which is provided by way of fetter upon the power of appointment vested in the Central Government and consultation cannot be equated with concurrence. We agree with what Krishna Iyer, J. said in Sankalchand Sheth case (Union of India vs. Sankalchand Himmatlal Sheth, (1977) 4SCC 193 : 1977 SCC (L&S) 435; (1978) 1 SCR 423 : AIR 1977 C 2328) that “consultation is different from consentaneity.” According to him, consultation does not mean concurrence though the process of consultation involves consideration of both - the entity seeking consultation and the consultee of the same. He further pointed out that the dominant object of the statute coupled with use of compelling words may in some cases involve a different meaning. As, for example, it happened in the Supreme Court Advocates-on-Record Association vs. Union of India, (1993) 4 SCC 441, also known as the 2nd Judges’ Case. In this judgment, on the facts and the language used as well as on consideration of the controlling Article 50 of the Constitution mandating the separation of the judiciary from the executive, this Court held that in the  process of consultation, the opinion of the Chief Justice has primacy. No such compelling context leading to departure from the natural meaning of the word ‘consultation’ exists in Section 435(1) of the Code. In the above-mentioned case, the following may be considered as the ratio:“438. The debate on primacy is intended to determine who amongst the constitutional functionaries involved in the integrated process of appointments is best equipped to discharge the greater burden attached to the role of primacy, of  making the proper choice; and this debate is not to determine who between them is entitled to greater importance or is to take the winner’s prize at the end of the debate. The task before us has to be performed with this perception. 441. For this reason, it must be seen who is best equipped and likely to be more correct in his view for achieving the purpose and performing the task satisfactorily. In other words, primacy should be in him who qualifies to be treated as the ‘expert’ in the field. Comparatively greater weight to his opinion may then be attached.”
32) It is the submission of learned senior counsel that even from this perspective, the view of the State Government on a question of remission which involves knowledge of the prisoner’s conduct whilst in jail, his usefulness to co-prisoners needing his help and  assistance, the manner in which he has employed his time in jail, his psychiatric condition, and family connections are more known to the State Government rather than the Union Government. These circumstances conclusively call for primacy to the finding and decision/opinion of the State Government.
33) In support of his claim that grant of remission is a State subject, Mr. Jethmalani relied on Entry 4 of List II, State List, which reads as under: “Prisons, reformatories, borstal institutions and other institutions of a like nature, and persons detained therein; arrangements with other states for the use of prisons and other institutions.” Section 59 of the Prisons Act, 1894 specifically empowers the State Government to make rules on the following:
“(5) For the award of marks and shortening of sentences;
(21) For rewards for good conduct; …
(27) In regard to the admission, custody, employment, dieting, treatment and release of prisoners.” This clearly shows that granting of remission for good conduct and determination of premature release is exclusively within the domain of the State Government and falls squarely within Entry 4, List II.
34) Mr. Jethmalani further elaborated that the correctness of the closing paragraph of judgment dated 18.02.2014 is further evidenced by the fact that a Constitution Bench of this Court in Bhagirath vs. Delhi Administration, (1985) 2 SCC 580 para 17 had  employed the same formulation in its closing paragraph while disposing of the petition seeking the benefit of Section 428 of the Code for life convicts. The Court had stated as follows:- “17. For these reasons, we allow the appeal and the writ petition and direct that the period of detention undergone by the two accused before us as undertrial prisoners shall be set off against the sentence of life imprisonment imposed upon them subject to the provision contained in Section 433A and provided that orders have been passed by the appropriate authority under Section 432 or 433 of the Cr.P.C (emphasis added)
35) Mr. Jethmalani has also pressed into service the revised Guidelines on Remission by the National Human Rights Commission which reads as under:-
“4. Inability for Premature Release  Deleted in view of new para 3.” New para 3 in the revised guidelines is as follows:“3. …Section 433(A) enacted to deny pre-mature release before completion of 14 years of actual incarceration to such convicts as stand convicted of a capital offence. The commission is of the view that within this category a reasonable classification can be made on the basis of the magnitude, brutality and the gravity of offence for which the convict was sentenced to life imprisonment. Certain categories of convicted prisoners undergoing life sentence would be entitled to be considered for premature release only after undergoing imprisonment for 20 years including remissions.The period of incarceration inclusive of remissions in such cases should not exceed 25 years. Following categories are mentioned in this connection by way of illustration and are not to be taken as an exhaustive list of such categories. a. Convicts who have been imprisoned for life for murder in heinous cases such as murder with rape, murder with dacoity, murder involving an offence under the Protection of Civil Rights Act, 1955, murder for dowry, murder of a child below 14 years of age, multiple murders, murder committed after conviction while inside the jail, murder during parole, murder in a terrorist incident, murder in smuggling operation, murder of a public servant on duty.b. Gangsters, contract killers, smugglers, drug traffickers, racketeers awarded life imprisonment for committing murders as also the perpetrators of murder committed with pre-meditation and with exceptional violence or perversity. c. Convicts whose death sentence has been commuted to life imprisonment.” Finally, he concluded by asserting that the State Government is the appropriate Government for granting of remission. Consequently, the proposal for release of Respondent Nos. 1 to 7 had been duly considered in accordance with law.
Discussion:36) We have carefully considered the rival contentions, examined the relevant Constitutional provisions alongside the apposite provisions in the Code. The issues raised in this case revolve around the exercise of power of remission by the appropriate Government. The commutation of death penalty to life imprisonment can befall at two stages: firstly, when the appellate Court deems it fit to commute the death sentence to life imprisonment; and secondly, when the executive  exercises its remission power under Article 72 by the President or under Article 161 by the Governor or under Article 32 by this Court in its judicial review jurisdiction.
37) The primary question that arises for consideration at this juncture is whether in the first scenario specified above, the Court has the power to substitute the death penalty for imprisonment for life (meaning until end of life) and put this category beyond the application of remission. Learned counsel for both the petitioner and the respondents submitted divergent views on this subject relying on judicial precedents of this Court.
38) Learned Attorney General referred to the three- Judges Bench decision of this Court in Swamy Shraddananda (supra) to state that life imprisonment imposed on commutation of death penalty will mean till end of life and, thus, beyond the exercise of power of remission. Accordingly, it is the stand of the Union of India that Respondent Nos. 4 to 7 cannot be granted remission as it is done in the given case.
39) In Swamy Shraddananda (supra), the conviction of the appellant – Swamy Shraddananda under Sections 302 and 201 IPC had attained finality. The Trial Court sentenced him to death for the offence of murder. The appellant’s appeal and the reference made by the Sessions Judge were heard together by the Karnataka High Court. The High Court confirmed the conviction and the death sentence awarded to the appellant and by judgment and order dated 19.09.2005 dismissed the appellant’s appeal and accepted the reference made by the Trial Court without any modification in the conviction or sentence. Against the High Court’s judgment, the appellant had come to this Court. In view of conflicting views by two Judges of this Court, the matter was referred to three-Judges’ Bench. After considering all factual details and various earlier decisions, this Court held that there is a good and strong basis for the Court to substitute the death sentence by life imprisonment and directed that the convict shall not be released from prison for the rest of his life. While considering the said issue, this Court adverted to various decisions granting remission reducing the period of sentence in those cases in which life sentence was awarded in lieu of death sentence. This Court in paras 91 to 93 held as under: “91. The legal position as enunciated in Pandit Kishori
Lal, Gopal Vinayak Godse, Maru Ram, Ratan Singh and Shri Bhagwan and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission.
92. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence.
But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Court’s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and  the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the  options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years’ imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years’ imprisonment would amount to no punishment at all.
93. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh besides being in accord with the modern trends in penology.”
40) Relying on the aforesaid decision of the larger Bench, learned Attorney General submitted that it is perfectly legal to commute the death penalty into imprisonment for life (to mean the entire life of the convict) and deprive of remission in certain cases. As a consequence, the exercise of power of remission under Section 432 of the Code by the State of Tamil Nadu in the case of Respondent Nos. 4 to 7 is impermissible.
41) Whereas it is the stand of learned senior counsel for the State that the authority to exercise the power of remission even in such special category of cases still vests with the appropriate Government, relying on the Constitution Bench decision in Bhagirath (supra), Mohinder Singh (supra) and various other case-laws. Moreover, it was asserted by learned senior counsel appearing for the State of Tamil Nadu that the statutory power of remission granted to the appropriate Government under Section 432 of the Code cannot be taken away only in certain cases by way of judicial pronouncement.
42) Having given our most anxious consideration, we are of the opinion that it will not be appropriate for a three Judges’ Bench to examine and decide the correctness ofthe verdict of another three-Judges’ Bench in Swamy Shraddananda (supra).Besides, inevitability the decision of the Constitution Bench in Bhagirath (supra) would also be required to be examined. Thus, we deem it fit to refer this matter to a five Judges’ Bench to reconcile the dispute emerged.
43) The second stage is when the executive exercises its remission power under Article 72 by the President or under Article 161 by the Governor or under Article 32 by this Court in its judicial review jurisdiction and the commutation of death penalty into life imprisonment is permitted. It is the stand of the petitioner, i.e., Union of India that once death penalty is commuted into life imprisonment by exercise of executive power under
Article 72/161 of the Constitution or by the judicial power vested by the Constitution in Article 32, the categories are beyond the power of remission and parallel exercise of the similar power by the executive under the Code is impermissible. Therefore, on this ground, the learned Attorney General for the Union of India contended that granting of remission to Respondent Nos. 1 to 3 & 7 is untenable in law. Although, the Attorney General heavily relied on this proposition to put forth his case but did not place any substantial material for examination by this Court.
44) Learned counsel for the State countered this proposition of the petitioner by stating that there is no material on record to validate the same, hence, remission granted to Respondent No. 7 is valid in law. It was further contended that the commutation of death sentence into life imprisonment in case of Respondent Nos. 1 to 3 by this Court was not by exercising any executive power under the Constitution or under the Code, but it was in exercise of its judicial power in the context of breach of  Article 21. In other words, according to him, even after this Court commuted the death sentence to life imprisonment, it did not bar and bolt any further exercise of commutation/remission power by the executive under the Constitution or under the Code.
45) The issue of such a nature has been raised for the first time in this Court, which has wide ramification in determining the scope of application of power of remission by the executives both the Centre and the State. Accordingly, we refer this matter to the Constitution Bench to decide the issue pertaining to whether once power of remission under Article 72 or 161 or by this Court exercising Constitutional power under Article 32 is exercised, is there any scope for further consideration for  remission by the executive.
46) Inasmuch as the issue vis -à- vis who is the ‘appropriate Government’ under Section 432(7) of the Code to exercise the power of remission is concerned, elaborate arguments had been advanced by both sides in the course of the proceedings and the parties raised more than one ancillary questions to the main issue like which Government-the State or the Centre will have primacy over the subject matter enlisted in List III of the Seventh Schedule of the Constitution of India for exercise of power of remission. Another question was also raised whether there can be two appropriate Governments in one case. In addition, whether the term “consultation” means “concurrence” under Section 435(1) of the Code. Since the questions in the given case are contingent on the final decision to be arrived at in the first issue, we unanimously deem it appropriate that these issues be decided by the Constitution Bench. Moreover, considering the wider interpretation of the provisions of the Constitution and the Code involved in the matter, we consider it fit to refer the matter to the Constitution Bench for an authoritative interpretation on the same. In fact, such a course of action is mandated by the provisions of Article 145(3) ofthe Constitution.
47) Before framing the questions to be decided by the Constitution Bench in Writ Petition (Crl.) No. 48 of 2014, we intend to dispose of other matters. Since in Writ Petition (Crl.) No. 105 of 2008, the petitioner is one of the respondents (Respondent No. 6) in Writ Petition (Crl.) No. 48 of 2014 and Mr. Sanjay R. Hegde, learned counsel for the petitioner is not pressing the same, the Writ Petition (Crl.) No. 105 of 2008 is dismissed as not pressed.Likewise, there is no need to keep the Criminal Misc. Petitions pending, as the Union of India filed the substantive petition in the form of Writ Petition (Crl.) No. 48 of 2014 giving all the details. Accordingly, Crl. M.P. Nos. 4622, 4623 and 4624 of 2014 in T.C.(Crl.) Nos. 1, 2 and 3 of 2012 respectively are dismissed. 48) The following questions are framed for the consideration of the Constitution Bench: (i) Whether imprisonment for life in terms of Section 53 read with Section 45 of the Indian Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda (supra), a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?
(ii) Whether the “appropriate Government” is permitted to exercise the power of remission under Section 432/433 of the Code after the parallel power has been exercised by the President under Article 72 or the Governor under Article 161 or by this Court in its Constitutional power under Article 32 as in this case? (iii) Whether Section 432(7) of the Code clearly gives primacy to the executive power of the Union and excludes the executive power of the State where the power of Union is co-extensive? (iv) Whether the Union or the State has primacy over the subject matter enlisted in List III of Seventh Schedule of the Constitution of India for exercise of power of remission?(v) Whether there can be two appropriate Governments in a given case under Section 432(7) of the Code? (vi) Whether suo motu exercise of power of remission under Section 432(1) is permissible in the scheme ofthe section if, yes whether the procedure prescribed in sub-clause (2) of the same Section is mandatory or not?(vii) Whether the term “consultation” stipulated in Section 435(1) of the Code implies “concurrence”? 49) All the issues raised in the given case are of utmost critical concern for the whole of the country, as the decision on these issues will determine the procedure for awarding sentences in the criminal justice system.

Accordingly, we direct to list Writ Petition (Crl.) No. 48 of 2014 before the Constitution Bench as early as possible preferably within a period of three months.

50) All the interim orders granted earlier will continue till final decision being taking by the Constitution Bench in Writ Petition (Crl.) No.48 of 2014.

CJI.(P. SATHASIVAM)
J.(RANJAN GOGOI)
J.(N.V. RAMANA)
NEW DELHI;APRIL 25, 2014

Husband Liable To Pay Maintenance To Divorced Wife Even After Iddat Period: Supreme Court of India

Husband Liable To Pay Maintenance To Wife Even After Iddat Period: Supreme Court of India


Key Points :
In an landmark judgement for protecting rights of divorced Muslim women, Hon'ble Supreme Court of India held that husband is entitled to pay maintenance to divorced wife even after Iddat period,if she is unmarried after divorce.The liability of husband exists till divorced wife remarries. 

Case Law Relied Upon : 

The Supreme Court in Shabana Bano v. Imran Khan(2010) 1 SCC 666, a two-Judge Bench, placing reliance on Danial Latifi (supra), 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.

Held That:“A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against his relatives, who are liable to maintain her.”

Result :

The matter is remitted to the learned Magistrate for re-adjudication of the controversy in question keeping in view the principles stated here in above.

 Full Text of Judgment:


IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.820 OF 2014

(Arising out of S.L.P. (Criminal) No. 4377 of 2012)

Shamim Bano … Appellant

Versus
Asraf Khan …Respondent


J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The appellant, Shamim Bano, and the respondent, Asraf Khan, were married on 17.11.1993 according to the Muslim Shariyat law. As the appellant was meted with cruelty and torture by the husband and his family
members regarding demand of dowry, she was compelled  to lodge a report at the Mahila Thana, Durg, on 6.9.1994, on the basis of which a criminal case under Section 498-A read with Section 34 IPC was initiated and, eventually, it was tried by the learned Magistrate at Rajnandgaon who acquitted the accused persons of the said charges. 
3. Be it noted, during the pendency of the criminal case under Section 498-A/34 IPC before the trial court, the appellant filed an application under Section 125 of the Code of Criminal Procedure (for short “the Code”) in the
Court of Judicial Magistrate First Class, Durg for grant of maintenance on the ground of desertion and cruelty. While the application for grant of maintenance was pending, divorce between the appellant and the respondent took place on 5.5.1997. At that juncture, the appellant filed Criminal Case No. 56 of 1997 under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for brevity “the Act”) before the learned Judicial Magistrate First Class, Durg. The learned Magistrate, who was hearing the application preferred under Section 125 of the Code, dismissed the same on 14.7.1999 on the ground that the appellant had not been able to prove cruelty and had been living separately and hence, she was not entitled to get the benefit of maintenance. The learned Magistrate, while dealing with the application preferred under Section 3 of the Act, allowed the application directing the husband and others to pay a sum of Rs.11,786/- towards mahr, return of goods and ornaments and a sum of Rs.1,750/- towards maintenance during the Iddat period.
4. Being grieved by the order not granting maintenance, the appellant filed Criminal Revision No. 275 of 1999 and the revisional court concurred with the view expressed by the learned Magistrate and upheld the order of  dismissal. The aforesaid situation constrained the appellant to invoke the
jurisdiction of the High Court under Section 482 of the code in Misc. Crl. Case No. 188 of 2005. Before the High Court a preliminary objection was raised on behalf of the respondent-husband that the petition under Section 125 of the Code was not maintainable by a divorced woman without complying with the provisions contained in Section 5 of the Act. It was further put forth that initial action under Section 125 of the Code by the appellant wife was tenable but the same deserved to be thrown overboard after she had filed an application under Section 3 of the Act for return of gifts and properties, for payment of mahr and also for grant of maintenance during the ‘Iddat’ period. It was also urged that the wife was only entitled to maintenance during the Iddat period and the same having been granted in the application, which was filed after the divorce, grant of any maintenance did not arise in exercise of power under Section 125 of the Code. Quite apart from the above, both the parties also had advanced certain contentions with regard to obtaining factual score.
5. The High Court, after referring to certain authorities, came to hold that a Muslim woman is entitled to claim maintenance under Section 125 of the Code even beyond the period of Iddat if she was unable to maintain herself; that where an application under Section 3 of the Act had already been moved, the applicability of the provisions contained in Sections 125 to 128 of the Code in the matter of claim of maintenance would depend upon exercise of statutory option by the divorced woman and her former husband by way of declaration either in the form of affidavit or in any other declaration in writing in such format as has been provided either jointly or separately that they would be preferred to be governed by the provisions of the Code; that the applicability of Sections 125 to 128 of the Code would depend upon exercise of statutory option available to parties under Section 5 of the Act and as the appellant-wife had taken recourse to the provisions contained in the Act, it was to be concluded  that she was to be governed by the provisions of the Act; that the claim of the appellant under Section 125 of the Code until she was divorced would be maintainable but after the divorce on filing of an application under Section 3 of the Act, the claim of maintenance, in the absence of exercise of option under Section 5 of the Act to be governed by Section 125 of the Code, was to be governed by the provisions contained in the Act; that as the application under Section 3 of the Act having already been dealt with by the learned Magistrate and allowed and  affirmed by the High Court under Section 482 of the Code, the claim of the appellant for grant of maintenance had to be confined only to the period before her divorce; and that the courts below had rightly concluded that the wife was not entitled to maintenance as she had not been able to make out a case for grant of maintenance under Section 125 of the Code; and further that the said orders deserved affirmation as interim maintenance was granted during the pendency of the proceeding upto the date of divorce. Being of this view, the High Court declined to interfere with the orders of the courts below in exercise of inherent jurisdiction.
6. We have heard Mr. Fakhruddin, learned senior counsel appearing for the appellant, and Mr. Kaustubh Anshuraj, learned counsel appearing for the respondent. 
7. The two seminal issues that emanate for consideration are, first, whether the appellant’s application for grant of maintenance under Section 125 of the Code is to be restricted to the date of divorce and, as an ancillary to it,because of filing of an application under Section 3 of the Act after the divorce for grant of mahr and return of gifts would disentitle the appellant to sustain the application under Section 125 of the Code; and second, whether regard being had to the present fact situation, as observed by the High Court, the consent under Section 5 of the Act was an imperative to maintain the application. 
8. To appreciate the central controversy, it is necessary to sit in a time machine for apt recapitulation. In Mohd. Ahmed Khan v. Shah Bano Begum and others(1985) 2 SCC 556  entertaining an application under Section 125 of the Code, 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, after referring to number of texts and principles of Mohammedan Law, the larger Bench opined that taking the language of the statute, as one finds it, there is no escape from the conclusion 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 which can ipso facto absolve the husband of the liability under the Code, and would not bring him under Section 127(3)(b) of the Code.
9. After the aforesaid decision was rendered, the Parliament enacted the Act. The constitutional validity of the said Act was assailed 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 ratio laid down in Shah Bano’s case and after adverting to many a facet upheld the constitutional validity of the Act. While interpreting Sections 3 and 4 of the Act, the Court came to hold thatthe intention of the Parliament is 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. Thereafter, the Court proceeded to state thus: -“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 clothes, 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 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 in Section 3(3) but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It wouldextend to the whole life of the divorced wife unless she gets married for a second time.” 
10. In the said case the Constitution Bench observed that in actuality the Act has codified the rationale contained in Shah Bano’s case. While interpreting Section 3 of the Act, it was observed that the said provision provides that a 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 and further indicates 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 Court further observed that 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”, and 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 wife’s mahr and restored her dowry as per Sections 3(1)(c) and 3(1)(d) of the Act. Thereafter the larger Bench opined  thus:-“30. 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. 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.
31. 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.”
11. Eventually the larger Bench concluded that 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 and 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 of the Act; that liability of a Muslim husband to his divorced wife arising under Section 3 of the Act to pay maintenance is not confined to the iddat period; and that a divorced Muslim woman who has not remarried and who is not able to maintain herself after the 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 and 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.
12. At this Juncture, it is profitable to refer to another Constitution Bench decision in Khatoon Nisa v. State of U.P. and Ors 2002 (6) SCALE 165 , wherein question arose whether a Magistrate is entitled to invoke his jurisdiction under Section 125 of the Code to grant maintenance in favour of a divorced Muslim woman. Dealing with the said issue the Court ruled that subsequent to the enactment of the Act as it was considered that the jurisdiction of the Magistrate under Section 125 of the Code can be invoked only when the conditions precedent mentioned in Section 5 of the Act are complied with. The Court noticed that in the said case the Magistrate had returned a finding that there having been no divorce in the eye of law, he had the jurisdiction to grant maintenance under Section 125 of the Code. The said finding of the magistrate had been upheld by the High Court. The Constitution Bench, in that context, ruled thus:“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.” 

13. The aforesaid principle clearly lays down that even an application has been filed under the provisions of the Act, the Magistrate under the Act has the power to grant maintenance in favour of a divorced Muslim woman and
the parameters and the considerations are the same as stipulated in Section 125 of the Code. We may note that while taking note of the factual score to the effect that the plea of divorce was not accepted by the Magistrate which was upheld by the High Court, the Constitution Bench opined that as the Magistrate could exercise power under Section 125 of the Code for grant of maintenance in favour of a divorced Muslim woman under the Act, the order did not warrant any interference. Thus, the emphasis was laid on the retention of the power by the Magistrate under Section 125 of the Code and the effect of ultimate consequence.
14. Slightly recently, in Shabana Bano v. Imran Khan(2010) 1 SCC 666
, a two-Judge Bench, placing reliance on Danial Latifi (supra), 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.” Though the aforesaid decision was rendered interpreting Section 7 of the Family Courts Act, 1984, yet the principle stated therein would be applicable, for the same is in consonance with the principle stated by the Constitution Bench in Khatoon Nisa (supra).
15. 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. 
16. Another aspect which has to be kept uppermost in mind is that when the marriage breaks up, a woman suffers from emotional fractures, fragmentation of sentiments, loss of economic and social security and, in certain cases, inadequate requisites for survival. A marriage is  fundamentally a unique bond between two parties. When it perishes like a mushroom, the dignity of the female fame gets corroded. It is the law’s duty to recompense, and the primary obligation is that of the husband.Needless to emphasize, the entitlement and the necessitous provisions have to be made in accordance with the parameters of law.
17. Under these circumstances, regard being had to the dictum in Khatoon Nisa’s case, seeking of option would not make any difference.The High Court is not correct in opining that when the appellant-wife filed application under Section 3 of the Act, she exercised her option. As the Magistrate still retains the power of granting maintenance under Section 125 of the Code to a divorced Muslim woman and the proceeding was continuing without any objection and the ultimate result would be the same,there was no justification on the part of the High Court to hold that the proceeding after the divorce took place was not maintainable.
18. It is noticed that the High Court has been principally guided by the issue of maintainability and affirmed the findings. Ordinarily, we would have thought of remanding the matter to the High Court for reconsideration from all spectrums but we think it appropriate that the matter should be heard and dealt with by the Magistrate so that parties can lead further evidence. Be it clarified, if, in the meantime, the appellant has remarried, the same has to be taken into consideration, as has been stated in the afore stated authorities for grant of maintenance. It would be open to the appellant-wife to file a fresh application for grant of interim maintenance, if so advised. Be it clarified, we have not expressed anything on the merits of the case.
19. In the result, the appeal is allowed and the impugned orders are set aside and the matter is remitted to the learned Magistrate for re-adjudication of the controversy in question keeping in view the principles stated here in above.
J.[Dipak Misra]
J.[Vikramajit Sen]
New Delhi;
April 16, 2014. 

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LAW AND SOCIETY