RAJA MOHAMMED v. MOIMOON — 1991 DIGILAW 803 (MAD)

Judgment : SOMASUNDARAM, J. ( 1 ) THIS appeal is filed by the husband against the order of the Family Court, madras in M. C. No. 297 of 1988 passed under Section 125, Code of Criminal Procedure, hereinafter called the Code, directing the appellant to pay maintenance to the respondent at the rate of rs. 500/- per month with effect from 2- 3-1987. The respondent herein filed the petition M. C. No. 297 of 1988 against the appellant under section 125 claiming maintenance and the case of the respondent is as follows: ( 2 ) THE appellant married the respondent on the 21-5-1984 according to Islamic rites and thereafter they lived together at Madras up to February, 1985. Though sufficient money and articles were paid to the appellant he was not satisfied with them and he insisted upon the respondent to bring Rs. 20,000/-from her mothers house. She could not bring the same and thereafter the respondent was driven out of the house in February, 1985. During her absence the respondent lived with one Rohini. After February, 1985, the appellant neglected and refused to maintain the respondent. The respondent has no income of her own and she is unable to maintain herself. The appellant is working as a conductor in Pallavan Transport Corporation and earning Rs. 1,000/- per month and he gets about Rs. 5,000/- per month as a film actor. ( 3 ) THE appellant filed a counter admitting his marriage with the respondent. His main defence is that he has pronounced Talak three time and dissolved the marriage; that he also sent the mahar amount of Rs. 201/-to the respondent and in view of the Muslim Women (Protection of Rights on divorce) Act 25 of 1986, hereinafter called the Act, the respondent is not entitled to claim any maintenance from him. ( 4 ) THE Family Court, on a- consideration of the entire evidence on record, found that in February, 1987 the appellant dissolved his marriage with the respondent by pronouncing Talak thrice. However, the Family Court came to the conclusion under the Provisions of the Act, even after divorce, a former husband is liable to make a fair and reasonable provision and maintenance to the divorced wife. The Family Court held that the respondent is entitled to receive a reasonable and fair maintenance from the appellant and directed the appellant to pay a sum of Rs. The Family Court held that the respondent is entitled to receive a reasonable and fair maintenance from the appellant and directed the appellant to pay a sum of Rs. 500/-per month towards her maintenance with effect from 2-3-1987. Aggrieved by the said order of the Family Court the appellant has preferred the present appeal. ( 5 ) MR. M. Karpagavinyagam, Learned Counsel for the appellant contended that the marriage between the appellant and the respondent took place on 21-5-1984; On 24-2-1987 the appellant divorced the respondent by pronouncing Talak in the manner known to law; The respondent filed the petition claiming maintenance under Section 125 of the Code on 2-3-1987. The Act came into force with effect from 19-5-1986; After the Act came into force the petition for maintenance under Section 125 of the Code is not maintainable and that in any event the application filed before the Family Court must be considered as one under Section 3 (1) of the Act. The learned Counsel for the appellant further contended that the Family Court has found that the appellants has divorced the respondent by pronouncing Talak thrice; According to Section 3 (1) of the Act a divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband and that the various provisions of the Act go to show that the former husband is not liable to pay maintenance to the divorced woman beyond the period of iddat, and therefore, the order of the Family Court granting future maintenance to the respondent is illegal and liable to be set aside. ( 6 ) ON the other hand, Mr. Suryapraksam, learned Counsel for the respondent contended that the finding of the Family Court that the appellant divorced the respondent by pronouncing Talak thrice is not based on acceptable evidence and, therefore, the said finding is liable to be set aside. ( 6 ) ON the other hand, Mr. Suryapraksam, learned Counsel for the respondent contended that the finding of the Family Court that the appellant divorced the respondent by pronouncing Talak thrice is not based on acceptable evidence and, therefore, the said finding is liable to be set aside. The learned counsel for the respondent further contended that even assuming that the appellant divorced the respondent, under Section 3 (1) (a) of the Act, the resp9ndent, even as a divorced woman, is entitled to claim reasonable and fair provision and maintenance from the appellant, not only for the period of iddat but also for the future and, therefore, the order of the Family Court directing the appellant to pay future maintenance to the respondent is legal. The learned counsel for the respondent also contended that even according to the appellant, the divorced took place on 24-3-1987 and he sent the iddat amount only on 27-10-1987, eight months after the alleged date of divorced and as the iddat amount was not sent within the period of iddat the condition prescribed in Section 3 (1) (a) of the Act not having been complied with, the appellant, is not entitled to claim the benefit of the Act. ( 7 ) IN view of the above contentions of the counsel for the parties the following points arise for consideration in this appeal. (1) Whether the appellant divorced the respondent by pronouncing Talak? (2) Whether even after the divorce the respondent is entitled to claim future maintenance from the appellant under Section 125 of the Code? ( 8 ) POINT NO. 1: The case of the appellant is that he pronounced Talak and dissolved the marriage and, therefore, he is not liable to pay maintenance to the respondent in view of the provisions of the Act. In B. R. Vermas Islamic Law, 6th edition, the law on the question how Talak is pronounced is stated at page 216 in the following terms. Talaq how pronounced: (1) A Talaq may be effected by words expressed either orally or in writing or by signs where the husband is unable to do so. (2) An Oral Talaq becomes effective-a. if the words used are Express or clearly show an intention to divorce; or b. Where the words used are not express, if it is proved that there was an INTENTION to effect a divorce. (2) An Oral Talaq becomes effective-a. if the words used are Express or clearly show an intention to divorce; or b. Where the words used are not express, if it is proved that there was an INTENTION to effect a divorce. (3) A Talaq in writing becomes effective-(a) If the writing is in the Customary Form, showing the name of the writer and the addressee; or (b) if it is proved that there was an INTENTION to effect a divorce. (4) It is not necessary that a Talaq should be pronounced in the presence of the wife or should be addressed to her. (5) A Talaq may be pronounced conditionally or so as to take effect immediately or at a future time or on the happening of any contingency. The appellant in his evidence as P. W. 1 has stated that consequent to the report given by the respondent against him before the anti dowry cell, he was arrested by the police on 3-2-1987; that the police investigated into the case and filed a charge sheet against him, and, therefore, he decided to dissolve the marriage by pronouncing Talaq three times. He has further stated in his evidence that on 24-3-1987 he sent the letter, Ex. P. 3, by registered post to the respondent informing her that he has dissolved the marriage by pronouncing talaq thrice; that he sent Rs. 201/- for the mahar amount by money-order as under Ex. D. 5; that the copies of the letter, Ex. P. 3, where also sent to Pichaikani Rowther, Vavanagaram Jamath President and Vasudevanallur Jamath President as marked as Ex. D. 6, that the respondent refused to receive the money order and, therefore, it came to him as indicated in Ex. D. 7; that on 1-3-1987 he went to Vavanagaram Jamath and informed about the divorce and Ex. D. 8 is the letter given by the said Jamath President. R. W. 1 has further stated in his evidence that after the filing of the maintenance case he sent a draft for Rs. 1,401/- to the respondent with a covering letter the copy of which is marked as Ex. D. 9. The said draft and the covering letter sent by registered post were received by the respondent as evidenced by Ex. D. 12. From the evidence of R. W. 1 and Exs. 1,401/- to the respondent with a covering letter the copy of which is marked as Ex. D. 9. The said draft and the covering letter sent by registered post were received by the respondent as evidenced by Ex. D. 12. From the evidence of R. W. 1 and Exs. D. 9 and D. 10 it is clear that the appellant has sent the mahar amount and the maintenance for the period of iddat to the petitioner. The respondent herself has produced the letter Fx. P. 3 No. doubt, the latterex. P. 3 is not signed by the appellant. However, as the respondent herself has produce the letter Ex. P. 3, we can safely hold that the pronouncement of talaq by the appellant has been duly communicated to the respondent. The fact that Ex. P. 3 does not contain the signature of the appellant will not in any way effect the evidenciary value of Ex. P. 3 particularly when Ex. P. 3 contains the name and address of the author of Ex. P. 3 and the addressee. Moreover, the respondent as P. W. 1 in her evidence has admitted that she has stated in her evidence in C. C. No. 5597 of 1987 on the file of the Additional Chief Metropolitan Magistrate, Madras that she received the letter dated 24-3-1987 informing her that the first accused in that case has divorced her and that her above version related to Ex. P. 3. It is in evidence that the mahar amount of Rs, 201/-sent by money order was returned to the appellant as the respondent did not receive the same. Thereafter, after the filing of the maintenance case a draft for Rs. 1,401/ -was sent by the appellant in the envelope, Ex. P. 2, P. W. 1 in her evidence says that she opened the letter and handed over the draft and the covering letter to her counsel, who in turn, sent them back to the appellant, but as the appellant refused to receive the same, the envelope came back to P. W. 1. The evidence in this case also discloses that though P. W. 1 made the necessary efforts to sent the mahar amount and the maintenance for the period of iddat the respondent has not so far en-cashed the draft. The evidence in this case also discloses that though P. W. 1 made the necessary efforts to sent the mahar amount and the maintenance for the period of iddat the respondent has not so far en-cashed the draft. In these circumstances, on the basis of the evidence on record the Family Court rightly held that on 24-1-1987 the appellant divorced the respondent by pronouncing Talaq thrice. 9. Point No. 2 The next question we have to examine, is, whether the appellant is liable to pay future maintenance to the respondent even after divorce under Section 3 (1) (a) of the Act. Before referring to the relevant provisions of the Act, it is necessary to see the circumstances under, which the Act came to be passed and the objects and reasons for enacting the same. The objects and reasons for enacting the Act are as under: the Supreme Court, in Mohd. Ahemed Khan v. Shah Bano Begum, A. I. R. 1985 S. C. 945; (1955 Cri. J. J. 875), has held that although the Muslim Law limits the husbands liability to provide for maintenance of the divorced wife to the period of iddat. It does not contemplate or countenance the situation envisaged by Section 125 of the Cr. P. C. , 1973. The Court held that it would be incorrect and unjust to extend the above principle of Muslim law to cases in which the divorced wife is unable to maintain herself. The Court, therefore, came to the conclusion that if the divorced wife is able to maintain herself, the husbands liability ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 of the Criminal P. C. This decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to divorced wife. Opportunity has, therefore, been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests. T A reading of the Statement makes it clear that the Legislature took the opportunity arising out of the decision of the Supreme Court in Mohd. Ahmed Khan v. Shahbanu Begum. A. I. R. 1985 S. C. 945; (1985 Cri. T A reading of the Statement makes it clear that the Legislature took the opportunity arising out of the decision of the Supreme Court in Mohd. Ahmed Khan v. Shahbanu Begum. A. I. R. 1985 S. C. 945; (1985 Cri. L. J. 875) to specify the rights a Muslim divorced woman would be entitled to at the time of divorce and to protect her interests. ( 9 ) THE relevant portion of section 3 of the Act reads thus: (1) Notwithstanding anything contained in any other law for the time being in force, a divorced women 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; (b) Where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children; (c) an amount equal to the sum of mahar or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law; and (d) all the properties given to her before or at ,the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. (2) Where a reasonable and fair provision and maintenance or the amount of mahar 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 duly authorized by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, Mahar or dower or the delivery of properties, as the case may be. (3) Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that (a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or (b) the amount equal to the sum of Mahar or dower has not been paid or that the properties referred to in clause (d) of sub-Section (1) have not been delivered to her make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be for the payment of such mahar or dower or the delivery of such properties referred to in clause (d) of Sub-section (1) to the divorced woman; provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period. Section 3 (1) of the Act begins with non-abstante clause and provides that a divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. Clause (c) of Section 3 (1) lays down that a divorced woman is entitled to an amount equal to the sum of mahar or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Laws. Clause (c) of Section 3 (1) lays down that a divorced woman is entitled to an amount equal to the sum of mahar or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Laws. Clause (d) of Section 3 (1) gives a right to a divorced woman to claim all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends Section 3 (2) of the Act gives a right to a divorced woman to file an application before the Magistrate when her former husband fails to make or pay a reasonable and fair provision and maintenance or the amounts of mahar or dower due and when he fails to deliver the properties referred to in clause (d) of sub-section (1) on her divorce for an order for payment of such provision and maintenance, mahar or dower or the delivery of the properties as the case may be. Section 4 imposes an obligation on the relatives of the divorced woman or the Wakf Board as the case may be to pay maintenance to the divorced woman if she is not remarried and is not able to maintain herself after the iddat period. ( 10 ) A close and careful reading of Sections 3 and 4 as well as Sections 5 and 7 of the Act would give us a clear picture of the rights of a divorced woman. As already pointed out, Section 3 (1) (a) provides that a divorced woman is entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. It is specifically stated in Section 3 (1) (a) of the Act that a reasonable and fair provision and maintenance shall be paid to the divorced woman by her former husband within the iddat period. The word within in Section 3 (1) (a) clearly means that the liability of the husband is to provide maintenance to his divorced wife within the period of iddat and for the period of iddat and not beyond the period of iddat. The word within in Section 3 (1) (a) clearly means that the liability of the husband is to provide maintenance to his divorced wife within the period of iddat and for the period of iddat and not beyond the period of iddat. There is nothing in the language of Section 3 (1) (a) which warrants the interpretation that the liability of the husband to pay maintenance to his divorced wife extends beyond the period of iddat. It must be remembered that the Act itself was passed to remove the difficulties which have arisen as a result of the decision of the Supreme Court in Shahbanus case1, (supra ). To hold that Section 3 (1) (a) imposes any obligation on the part of the husband to provide fair and reasonable maintenance to his divorced wife beyond the period of iddat also would result in defeating the very purpose for which the Act has been enacted. Only Section 4 deals with payment of maintenance to a divorced woman who has not remarried and is not able to maintain herself after the period of idiliu. Section 4 imposes an obligation only on the relatives of the divorced women or the Wakf Board as the case may be to pay maintenance to the divorced woman after the period of iddat, if she is not remarried or is not able to maintain herself after the iddat period. Section 4 does not impose an obligation on the husband of the divorced woman after the iddat period. Therefore, Section 4 also goes to show that the former husband is not liable to pay maintenance to the divorced woman after the iddat period. Section 5 of the Act gives an option to the parties to be governed by the provisions of Sections 125 to 128 of the Code if on the date of the first hearing of the application under subsection (2) of Section 3, a divorced woman and her former husband declare by an affidavit or any other declaration in writing either jointly or-separately that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code. Section 7, a transitional provision provides that every application by a divorced woman under Section 125 or under Section 127 of the Code, pending before the Magistrate on the commencement of the Act, shall not withstanding anything contained in the Code and subject to the provisions of Section 5 of the Act, be disposed of by the Magistrate in accordance with the provisions of the Act. A combined reading of Sections 3 to 7 of the Act goes to show that the object of the Act is to bring the law of maintenance payable to a divorced woman in consonance with the principles of Muslim Law and that Sections 125 to 128 of the Code are not applicable to the case of a divorced woman after coming into force of the Act, Except in case of option exercised by the parties under Section 5 of the Act. The above discussion leads us to the conclusion that the liability of a husband to pay maintenance to his divorced wife a) of the Act is limited for and during the period of iddat and that a divorced wife cannot claim future maintenance from her former husband under Section 125 of the Code. ( 11 ) 11. In Usman Khan Ahamani v. Fathimunnisa Begum, a Full Bench of the Andhra Pradesh High Court dealing with identical position whether the liability of the husband under Section 3 (1) (a) of the Act to pay maintenance to his divorced wife extends beyond the period of iddat, observed as follows: a close perusal of Section 3 (1) (a) shows that a divorced Muslim Woman is entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by former husband. This Full Bench has to address itself to the meaning and purport of Cl. (a) of Subsection (1) of Section 3 to find out what is the exact meaning to be attributed to this section. It is clearly stated that a divorced Muslim women shall be entitled to a reasonable and air provision and maintenance within the iddat period to be made and paid by her former husband. It is also equally clear that the reasonable and fair provision and maintenance has to be made and paid by he husband within the period of iddat which has been defined under Section 9 (b) of the Act. It is also equally clear that the reasonable and fair provision and maintenance has to be made and paid by he husband within the period of iddat which has been defined under Section 9 (b) of the Act. There is nothing in the section which can be read to mean that the husband is liable to make reasonable and fair provision and maintenance beyond the period of iddat. The word within indicates two things that the liability of the husband to make a reasonable and fair provision and maintenance is limited to the period of iddat only and it is already seen in the statement of objects and reasons that the principle of Muslim Law limits the husbands liability to provide maintenance to the divorced wife for the period of iddat only. Even in the case of Shah Bano, it is recognised that a Muslim woman is entitled to maintenance under the Muslim law only during the period of iddat. However, it is held that if she is unable to maintain herself then the liability of the husband to pay maintenance arises under Section 125 of the Code. Therefore, inherent in the decision of the Supreme Court is the recognition of the principle that while maintenance during the period of iddat is to be paid under the Muslim law, maintenance beyond the period of iddat is envisaged only under Section 125 of the Code. Therefore, the word Within occurring in Section 3 (1) clearly means that there is an obligation on the part of the husband to provide fair and reasonable maintenance to his divorced wife within the period of iddat and for period of iddat only. It is also clear that the liability of the husband cannot be extended beyond the period of iddat to make any reasonable and fair provision or to pay maintenance beyond the period of Iddat of his divorced wife. Much has been said to which reference is to be made later about the use of the word within rather than For which has been employed in Section 3 (1) (a ). We are clearly of the option that the use of the word within does not permit an interpretation to be put to the Section that the liability of the husband to make a reasonable and fair provision and maintenance to his divorced wife extends beyond the period of iddat. We are clearly of the option that the use of the word within does not permit an interpretation to be put to the Section that the liability of the husband to make a reasonable and fair provision and maintenance to his divorced wife extends beyond the period of iddat. The intention of the legislature is manifestly clear that it envisages the making of reasonable and fair provision and payment of maintenance to the divorced wife commensurate with the period of iddat to be paid within the period of iddat. To take contrary view would result in complete negation of the principles envisaged under Section 3 (1) (a) of the Act of 1986 and defeat the very purpose for which the Act of 1986 has been enacted. Therefore, in view of the foregoing, it IS held th9t a divorced Muslim woman cannot claim maintenance under Section 125 of the Code from her former husband after passing of the Act of 1986. The cardinal principle which Section 3 Weeks to lay down is that the liability of the husband to make a fair and reasonable provision and pay maintenance is confined to the duration of iddat only. ( 12 ) A similar view was taken by a Division Bench of the Rajasthan High Court in Abid Ali v. Mst. Raisa Begum by the Kerala High Court in Abdul Gaffoor v. A. V. Pathuma Bibi by the Patna High court in Md. Yunus v. Bibi Phenkani Pasrunnissa and by the Orissa High Court in Rizwana begum v. Motiallah. We find ourselves in agreement with the ratio of the five decision referred above. In view of our discussion with regard to the provisions of the Act we are unable to agree with the contrary view taken by a single Judge of the Gujarat High Court in A. A. Abdulla v. A. M. Mohmuna Saiyadbhai and by the Punjab and Haryana High Court in Hazrun v. Abdul Rahman. ( 13 ) IN view of the above discussion we have to hold that the appellant is not liable to pay maintenance to the respondent even after divorce and the reasons given by the Family Court for holding that the appellant is liable to pay maintenance to former wife even after divorce are clearly erroneous and, therefore the order of the Family Court is liable to be set aside. Accordingly, the appeal is allowed, the order of the Family Court is set aside and (he petition M. C. No. 297 of 1988 is dismissed. No costs. Appeal allowed.