The Allahabad High Court in, Zahid Khatoon v. Nurul Haque Khan, while interpreting the provision of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as “the Muslim Act, 1986”) and placing reliance on Danial Latifi v. Union of India, observed that a Muslim divorced lady is entitled to maintenance even after the period of iddat. The Court set aside the order passed by the Family Court which had granted maintenance to the wife only till the period of iddat.
Brief Facts:
The Appellant/Wife married the Respondent as per Muslim rituals. After a while, the Respondent divorced the Appellant and married another Muslim woman. However, he neither paid Mahr nor any maintenance amount nor returned the articles belonging to the Appellant, therefore a case was filed under Section 3 of the Muslim Act, 1986. The Court directed the Respondent to give Rs. 1001 as Mahr and Rs. 1500 per month as maintenance till the iddat period, to the wife. Aggrieved by the said order, the Appellant filed an appeal under Section 19 of the Family Courts Act (hereinafter referred to as “FC Act”).
Contentions of the Appellant:
It was contended that the Appellant was entitled to maintenance from the Respondent for a future period beyond the period of Iddat in terms of Section 3 of the Muslim Act, 1986. Reliance was placed on Danial Latifi v. Union of India (2001) 7 SCC 740. Further, the Appellant has proved the income of the Respondent and has also established that she has no source of income.
Contentions of the Respondent:
It was contended, firstly that, the Principal Judge, Family Court had no jurisdiction to decide case u/s 3, and the same lies with Magistrate. Secondly, it was contended that the Appellant failed to prove that she has no source of income and therefore no amount towards maintenance could be granted. Further, it was contended that a divorced Muslim woman has no right to get any amount towards maintenance or for any other purposes except for the period of Iddat.
Observations of the Court:
Concerning the objection of jurisdiction by the Respondent, the Court declined to grant any relief. The Court stated that firstly, the Respondent never raised any objection as to jurisdiction before the Family court and rather participated in the proceedings. Secondly, reliance on Shabana Bano v. Imran Khan was placed, wherein it was held that the provisions of the FC Act shall have an overriding effect on other enactments. Moreover, the Respondent had not filed the appeal and not challenged the judgment of the Family Court and has therefore accepted the same. Therefore, the question of Jurisdiction did not arise.
Apart from this, the Bench analyzed the object and background of the Muslim Act, of 1986. Reliance was placed on Mohd. Ahmed Khan vs. Shah Bano Begum and Danial Latifi v. Union of India. It was observed, “The Muslim Act, 1986 is a piece of beneficial legislation enacted for the welfare of such class of society who suffer great disparity and whose (her) investment in the marriage is the investment of her entire life which if breaks up and compensated in terms of money towards here livelihood, partakes the character of basic human rights to secure gender and social justice which is universally recognized by persons belonging to all religions and it is difficult to perceive that Muslim law intends to provide a different kind of responsibility and to deprive a divorced lady to any means of livelihood resulting in social injustice and leaving her life as a curse.”
The High Court further answered the question as to whether a Muslim divorced lady is entitled to maintenance from her husband for a future period after Iddat under Section 3 of the Muslim Act, 1986, in the affirmative. Reliance was placed on Danial Latifi v. Union of India wherein, inter alia, it was held that the liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.
The Allahabad High Court thus observed that under Section 3(3) of the Muslim Act, 1986, an order can be passed directing the former husband of the divorcee to pay the wife such reasonable and fair provision and maintenance. The word “provision” used in Section 3 of the Muslim Act, 1986 indicates that 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 Court thus stated that the Family Court had committed a manifest error of law. It was also observed that the Court had not considered various pieces of evidence on record.
The decision of the Court:
Thus, the Appeal was allowed, and order was set aside. The matter was remitted back to a competent court i.e. Magistrate for determining maintenance. The Court also directed that for a period of three months or till the matter is decided whichever is earlier the Respondent shall pay to appellant Rs. 5000 per month towards interim maintenance.
Case Title: Zahid Khatoon v. Nurul Haque Khan
Coram: Hon'ble Surya Prakash Kesarwani, J. And Hon'ble Mohd. Azhar Husain Idrisi, J.
Case No: First Appeal No. 787 of 2022
Advocate for Petitioner: Advs. Prakhar Saran Srivastava, Pradeep Kumar Rai
Advocate for Respondent: Advs. Arvind Srivastava, Mohd. Naushad Siddiqui
Read Judgement @LatestLaws.com
Picture Source :