Safiyabi vs Shafik Mohd. Khan And Anr.
2003 Latest Caselaw 694 Bom

JUDGMENT

P.S. Brahme, J.

1. Heard Mrs. S.P. Deshpande, the learned Counsel for the applicant and Mr. N. Iqbal, the learned Counsel for respondent No. 1 and Mr. Mirza, the learned A.P.P. for respondent No. 2.

2. This revision application is preferred by the applicant, the divorced wife of respondent No. 1, against the order passed by Second Additional Sessions Judge, Akola on January 19, 1999 in Criminal Revision Application No. 172 of 1998 rejecting her claim for the amount of Rs. 30,000/- towards reasonable and fair provisions for maintenance for her life.

3. Applicant Safiyabi was married to respondent Shafik Mohd. Khan s/o Sadat Meer Khan. After the marriage, though she lived with her husband, she was treated with cruelty and her husband refused and neglected to pay maintenance to her. She had filed Misc. Criminal Application No. 6 of 1996 before the Judicial Magistrate, First Class, Murtizapur under Section 125 of the Code of Criminal Procedure for maintenance as she was unable to maintain herself and her husband has refused and neglected to maintain her. During pendency of the said application, her husband gave divorce to her on 1st of January, 1996, and thereafter, on 12th August, 1996 her maintenance application came to be rejected by the Judicial Magistrate.

4. Respondent No. 1 was working on the post of Shop Inspector and, according to the applicant, he was drawing a salary to the tune of Rs. 6,000/-p.m. Though respondent No. 1 gave divorce to the applicant, he did not make any provision for her maintenance nor he has paid the amount of Mehr nor any reasonable and fair provision for her maintenance for the life was made by him. Therefore, the applicant was constrained to file an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter for short referred to as "Muslim Women Act") against her husband claiming Rs. 5,000/ - towards Mehr, Rs. 12,000/- towards the property which the applicant received in her marriage, Rs. 50,000/- towards reasonable and fair provision for maintenance, and Rs. 1,500/- towards maintenance of the Iddat period. The application was resisted by respondent No. 1. The learned Magistrate, after considering the contentions of both the sides and the evidence on record and also the legal provision under Section 3(1) of the Muslim Women Act entitling a divorcee to Mehr amount, maintenance for the period of Iddat and reasonable and fair provision for maintenance for her life, allowed her application and by his order dated 23rd April, 1998, granted a sum of Rs. 5,000/- towards Mehr, Rs. 12,000/-towards the property, Rs. 30,000/- towards reasonable and fair provision for maintenance for life, and Rs. 1,500/- towards maintenance of the Iddat period.

5. Respondent No. 1, taking exception to this order, preferred Criminal Revision No. 172 of 1998 before the Additional Sessions Judge, Akola, who, by his order passed on 19-1-1999, confirmed the award of amount of Mehr, amount towards property, and the amount of Rs. 1,500/- towards maintenance of the Iddat period. But he rejected the claim of applicant of Rs. 30,000/- towards reasonable and fair provision for maintenance which was granted by the learned Magistrate. The applicant, therefore, has approached this Court to assail the claim in respect of the amount of Rs. 30,000/- which was negatived by the Additional Sessions Judge, Akola.

6. The learned Counsel for the applicant vehemently submitted that the applicant was entitled to get the same amount from the husband towards fair and reasonable provision for maintenance for her life as laid down under Section 3(1)(a) of the Muslim Women Act. She submitted that this claim for reasonable amount for maintenance for her life was in addition to the maintenance which a divorcee is entitled to get for the period of Iddat. She has heavily placed reliance on the Full Bench decision of this Court in Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh and Ors., reported in 2000(3) Mh.L.J. 555. She has also placed reliance on the decision of this Court in Naseemunisa Begum d/o. Shaikh Yasin and Anr. v. Shaikh Abdul Rehman s/o. Shaikh Gaffar and Anr., reported in I (2000) DMC 634 (FB)=2002(2) Mh.L.J. 115, wherein the Division Bench of this Court, placing reliance on the Full Bench decision in Naseemunisa Begum's case (supra), held that:

"No new right is created in favour of a divorced Muslim woman, but whatever rights she had under the Personal Law, they are re-stated in Sections 3 and 4 of the Muslim Women Act, 1986. She is not entitled to "maintenance" after the period of Iddat, as pointed out in the Full Bench decision; however, the husband is liable to make a "fair and reasonable provision" even for the period after Iddat."

The Court further held that:

"The provisions of Sections 125 to 128 of the Code of Criminal Procedure are not inconsistent with the provisions of Sections 3 and 4 of the 1986 Act. The divorced Muslim woman can make an application for the maintenance for the period of Iddat and for fair and reasonable provision for period beyond Iddat as per the provisions of Section 3 of the 1986 Act and if the prior husband agrees, then such proceedings can be taken under Section 125 of the Code of Criminal Procedure."

The Court further observed that:

"So far as the provisions of Section 4 of the 1986 Act is concerned, the right is given to the divorced Muslim woman to proceed against her heirs as per the provisions of Personal Law and that contingency may arise if there is no fair and reasonable provision made for her by the prior husband for period beyond Iddat."

7. The learned Counsel for the applicant submitted that the Additional Sessions Judge committed an error in law in rejecting the claim of the applicant for the amount of fair and reasonable provision for maintenance for her life. She further urged that the application be allowed and the order passed by the Sessions Judge to the extent he has negatived petitioner's claim be set aside and the order passed by the learned Magistrate be restored.

8. Mr. N. Iqbal, the learned Counsel appearing for respondent No. 1-husband submitted that the decision of the Full Bench, so also that of the Division Bench of our High Court, is not applicable so far as the case before hand is concerned. Drawing our attention to the provision contained in Section 4(1) of the Muslim Women Act, the learned Counsel submitted that though the divorced Muslim wife is entitled to maintenance for a period after Iddat, the liability to pay maintenance is not that of her former husband. She has to make an application to the Magistrate and the Magistrate, if satisfied that the divorced woman has not re-married and that she is not able to maintain herself after the Iddat period, he can make an order directing such of her relatives as would be entitled to inherit her property on her death according to the Muslim Law, to pay such reasonable and fair maintenance to her as may be determined fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportion they would inherit her property and as specified in the order. So, it is in this context that the learned Counsel for respondent No. 1 does not dispute entitlement of the divorced woman to get maintenance beyond the Iddat period. He submitted that the trial Court was not justified in awarding amount of Rs. 30,000/- to the applicant towards reasonable and fair provision for maintenance of her life when she was not entitled to get the same from the husband and as. per Section 4(1) of the Muslim Women Act, the liability was of the relatives of the wife. To substantiate his submission, he has placed reliance on the Fuji Bench decision of Usman Khan Bahamani v. Fathimunnisa Begum and Others reported in 1990 Cri.L.J. 1364. What is laid down in this case is that liability of the husband to pay maintenance is limited for and during the period of Iddat and a divorced Muslim woman-wife cannot claim maintenance under Section 125 of the Code of Criminal Procedure after passing of 1986 Act.

9. Mr. Mirza, the learned A.P.P. has pointed out from the Full Bench decision of our High Court that the liability to make fair and reasonable provision for maintenance for the life of a divorced Muslim woman after the period of Iddat is cast on the husband, though his liability to pay maintenance simplicitor was limited to the period of Iddat.

10. For deciding the controversy, I need not take into consideration the factual position in the matter. It is not disputed that the applicant had filed the application for maintenance, Mehr amount, for fair and reasonable provision for maintenance for life and also dues and precisely, in exercise of her right under Section 3(1)(a) of the Muslim Women Act after respondent No. 1 gave her divorce. It is the matter of record that though respondent No. 1 gave, divorce, he did not make any provision for the dues which the applicant was entitled to under Section 3(1)(a) of the Muslim Women Act. The controversy is restricted to the claim of the applicant for fair and reasonable provision for maintenance for her life since after the period of Iddat. This is because her claim in respect of other dues including the dues for maintenance during the period of Iddat, Mehr amount, dues in respect of the property has been allowed by the learned Magistrate and the learned Additional Sessions Judge has confirmed that order.

11. In order to understand the claim which a divorced Muslim woman is entitled to, it is necessary to briefly refer to the provisions of the Muslim Women Act. It contains only seven sections. Section 2 defines inter alia the terms "divorced woman", "Iddat period", "Magistrate", etc. Section 3(1) states as under:

"Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to--

(a)    a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband."
 

12. Sub-sections (2) and (3) of Section 3 are procedural. An application can be made to a Magistrate for an order of payment of dues under Sub-section (1) of Section (3). In this context, it would be appropriate to refer to Section 3(2) of the Muslim Women Act. It reads as under--
  "where a reasonable and fair provision and maintenance or the amount of Mehr or Dower due has not been made or paid or the properties referred to in Clause (d) of Sub-section (1) have not been delivered to a divorced woman on her divorce, she or anyone on her behalf may make an application to a Magistrate for an order for payment of such provision and maintenance, Mehr or Dower, or the delivery of properties, as the case may be." 
 

13. Section 4 of the said Act deals with the order for payment of maintenance. Section 4(1) states that :

"Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the Iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim Law to pay such reasonable and fair maintenance to her as he may determine fit and proper ......"

14. A plain reading of these provisions makes it crystal clear that a Muslim divorced woman is entitled to reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband. There is not much debate on the question whether a Muslim divorced woman is entitled to maintenance beyond the period of Iddat. That a former husband's liability to pay maintenance to the wife does not exceed beyond the period of Iddat is an accepted position. That is also in consonance with what the Apex Court has observed in the case of Shahbanu. The Apex Court in Shahbanu's case, after considering the provisions of Holy Quran and authoritative books on Muslim Law has held as under:

"The Muslim Personal Law limits husband's liability to provide for maintenance of the divorced wife to the period of Iddat. Said position, therefore, can no longer be debated. The vexed question over which there is controversy is whether the husband is absolved of any responsibility towards his wife after the Iddat period ? Why has the Legislature used the words 'reasonable and fair provision' ? What meaning do these words carry ?"

15. The learned Counsel for respondent No. 1 vehemently submitted that having regard to the provision contained in Section 4(1) of the Muslim Women Act, the former husband of the divorced Muslim wife is not accountable to pay fair and reasonable amount as a provision for maintenance for her life, which she is entitled to get under Section 3(1)(a) of the Muslim Women Act. His submission was that the wife is entitled to get that amount of fair and reasonable provision for maintenance from her relatives who are likely to inherit her property. In order to support his submission, he has submitted with emphasis that even under the Personal Law and subsequent legislation i.e. the Muslim Women Act, 1986, the liability of the former husband to pay maintenance is limited or restricted to the period of Iddat. He submitted that the Muslim Women Act, 1986 does not make a specific provision casting liability on the husband to make fair and reasonable provision for maintenance for life to a divorced Muslim woman. According to the learned Counsel, as per Section 4(1) of the Muslim Women Act, a divorced wife is entitled to claim maintenance from the persons who are accountable for the same.

16. It is difficult to accept the submission of the learned Counsel for the respondent. In my opinion, the controversy is set at rest by the Full Bench decision of this Court in Karim Abdul Rehman Shaikh's case (supra). In that case, the first question that was formulated by the Full Bench was :

(i) Whether the Muslim husband's liability under Section 3(a) of the Muslim Women Act to make a reasonable and fair provision and pay maintenance is only restricted to the Iddat period or whether it extends beyond the Iddat period ?

I quote the answer given by the Full Bench to this question No. 1 as under :

"The husband's liability to pay maintenance to a divorced wife ceases the moment Iddat period gets over. He has to pay maintenance to her within the Iddat period for the Iddat period. But he has to make reasonable and fair provision for her within Iddat period, which should take care of her for the rest of her life or till she incurs any disability under the Muslim Women Act. While deciding the amount regard will be had to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of former husband and the like circumstances. If the husband is unable to arrange for such a lumpsum payment he can ask for instalments and the Court shall consider granting him instalments. Till the husband makes the fair and reasonable provision, the Magistrate may direct monthly payment to be made to the wife even beyond the Iddat period subject to the fixation of the amount of fair and reasonable provision."

17. In view of this decision of the Full Bench of our High Court, there is no question of any doubt as to liability of the husband of respondent No. 1 to make reasonable and fair provision for her maintenance for life. What is significant is the fact that the former husband has to make provision for maintenance as well as for the maintenance for Iddat period and for reasonable and fair provision for her life within Iddat period. This has significance of its own. If we take into "consideration the provision laid down in Sub-section (2) of Section 3 of the Muslim Women Act, it is made imperative on the part of the former husband to make or pay reasonable and fair provision and maintenance or amount of Mehr within the Iddat period. A Muslim divorced wife can take recourse to make an application to the Magistrate for the order of payment of such provision and maintenance, Mehr or Dower or delivery of the properties. This provision, therefore, reinforces the liability of former husband to make provision for the maintenance of Iddat period, so also, for a reasonable and fair provision and maintenance for life for the wife. If that is considered, there is no manner of doubt as to entitlement of the wife for reasonable and fair provision and maintenance beyond the period of Iddat from her former husband. Therefore, the submission of the learned Counsel for respondent No. 1, placing reliance on Sub-section (1) of Section 4 of the Muslim Women Act, that the liability to pay maintenance or make reasonable and fair provision for maintenance for life of a Muslim divorced woman was of such relative as would be entitled to inherit her property cannot be accepted. Such interpretation of Sub-section (1) of Section 4 would make nugatory the provision contained in Sub-section (1) of Section 3 of the Muslim Women Act.

18. The learned Counsel for respondent No. 1 gave much emphasis on the word "notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force" of Sub-section (1) of Section 4 and submitted that the liability of the former husband to pay fair and reasonable provision for maintenance for life is excluded making relatives of the Muslim divorced woman accountable for making the fair and reasonable provision for maintenance of the divorced woman. In my opinion, such an interpretation cannot be made. According to me, the wording "notwithstanding anything contained in the foregoing provisions of this Act" refers to the provision contained in Sub-section (2) of Section 3 of the Muslim Women Act. It means that when the former husband has failed to make provision for Mehr amount, Dower due, reasonable and fair provision and maintenance which a Muslim woman is entitled to under Sub-section (1)(a) of Section 3, she is armed with the right to exercise her claim taking recourse to the provision under Sub-section (2) of Section 3. The provision contained in Sub-section (1) of Section 4 of the Muslim Women Act entitled the Muslim woman to get maintenance and fair provision from the relatives who would be entitled to inherit her property, is provision notwithstanding or in addition to the provision available to her under Sub-section (2) of Section 3 of the Muslim Women Act. This must be the interpretation which is harmonious to the provision contained in Sub-sections (1) and (2) of Section 3 of the Muslim Women Act.

19. The subsequent decision of this Court in Naseemunisa Begum's case (supra), in which the Full Bench decision has been followed, reinforces what I have held as to entitlement of the applicant for fair and reasonable provision for maintenance for life of the applicant. The learned Sessions Judge has landed in error in rejecting applicant's claim for Rs. 30,000/- which was allowed by the learned Magistrate. The learned Magistrate has awarded the claim of Rs. 30,000/- towards the fair and reasonable provision for maintenance for life of the applicant having regard to inability of the applicant to maintain herself, the earning capacity of respondent No. 1, etc. In addition to that, the learned Magistrate has taken into consideration the interest that would accrue on the sum of maintenance which the wife was entitled to get as Rs. 500/- p.m. during the period of Iddat, as also, respectable span of life. Even in that regard, for arriving at the sum of maintenance of Rs. 30,000/ which the applicant was entitled to, the learned Magistrate has taken into consideration factual aspect of the matter. In the first place, we do not find any error on the part of the learned Magistrate in fixing the liability to the tune of Rs. 30,000/-. Correctness of the same cannot be questioned in revision application. It is much more so when the learned Sessions Judge has negatived the claim in that regard on merits holding that the applicant is not entitled to get the same.

20. In the result, for the reasons stated above, the order passed by the Additional Sessions Judge, Akola cannot sustain. The order to the extent of rejecting the claim for Rs. 30,000/- is set aside by allowing this revision application. The order passed by the learned Magistrate awarding the sum of Rs. 30,000/- towards reasonable and fair provision for maintenance for the life of the applicant is restored. At this stage, the learned Counsel for respondent No. 1 submitted that considering, the financial condition of the respondent, he be given liberty to pay the amount in instalments. The learned Counsel for the applicant, in reply, submitted that if the facility is given to the non-applicant to pay the amount in instalments, the Court should grant interest on the amount. Accepting the submission of the learned Counsel for respondent No. 1, I allow respondent No. 1 to pay the amount in four equal yearly instalments on the condition that respondent No. 1 shall pay interest @ 6% p.a. on the amount of Rs. 30,000/- from the date of order passed by the learned Magistrate. I make it clear that respondent No. 1 shall pay the amount of Rs. 30,000/- with 6 % p.a. interest that accrued from the date of order i.e. 23.4.1998 till the date of this order. The amount of first instalment is to be paid on or before 25th July, 2003 in the trial Court.

The revision application is disposed of in the aforesaid terms.