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2002 DIGILAW 1507 (AP)

MUNEER HASSAN KHAN v. FAREEDA KHATOON

2002-12-23

T.CH.SURYA RAO

body2002
T. SURYA RAO, J. ( 1 ) THIS revision petition is directed against the order dated 21. 12. 2001 passed by the learned Additional Metropolitan sessions Judge-cum-Additional Family court, Hyderabad, in M. C. No. 134 of 2000. ( 2 ) THE revision petitioner is the respondent in the maintenance case. The respondent herein filed M. C. No. 134 of 2000 under Section 125 of the Code of criminal Procedure (for short the Code ) mentioning inter alia in the petition that her marriage with the respondent was celebrated on 17. 8. 1999 and that later the relationship inter. se between them was strained because of the harassment meted out to her by the respondent and his parents for non-compliance of the demand for additional dowry of Rs. 50,000/- and that on 15. 5. 2000 she was beaten and sent out of the house and since then she has been residing in her parents house. It is further averred that the respondent has been working as an Electrician and getting an amount of Rs. 3,000/- per month and having had means, he refused to maintain her who is unable to maintain herself. That petition is resisted by the husband by filing a counter mentioning inter alia that he pronounced Talak on 9. 10. 2000 and gave divorce to the petitioner and that a Talaknama was also prepared and the same was communicated to the petitioner and to her father through registered post with acknowledgment dated 10. 10. 2000. It is his further case that petitioner being a divorcee is not entitled to any maintenance and that he is earning only Rs. 30/- per day, as he is working under an Electrician as a worker. ( 3 ) THE learned Judge of the Family Court formulated three points for his determination as under: (1) Whether the respondent pronounced talaq to the petitioner and gave divorce to her? (2) Whether the petitioner is entitled for maintenance? (3) If so, to what extent? ( 4 ) AT the time of enquiry, two witnesses were examined on the side of the petitioner including herself and no documents were marked. The respondent examined himself as RW. 1 besides getting Ex. R1 to ex. RS marked. (2) Whether the petitioner is entitled for maintenance? (3) If so, to what extent? ( 4 ) AT the time of enquiry, two witnesses were examined on the side of the petitioner including herself and no documents were marked. The respondent examined himself as RW. 1 besides getting Ex. R1 to ex. RS marked. ( 5 ) THE Court below on point No. 1 after having heard either side and considering the evidence on record held that the respondent pronounced talaq and gave divorce to the petitioner. However, on point no. 2 he was of the view that the petitioner was entitled to maintenance even after the iddat period, if the respondent failed to make any arrangements. Accordingly, he allowed the petition and directed the respondent to pay maintenance to the petitioner @ Rs. 450a per month from the date of petition i. e. , 4. 12. 2000. As aforesaid, the respondent in the maintenance case is assailing the said order in this revision case. ( 6 ) SRI C. Praveen Kumar, learned Counsel appearing for the revision petitioner, contends that a divorced Muslim wife is not entitled to any maintenance in view of the provisions contained in Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Act ). It is therefore, his contention further that having held that the talaq was pronounced by the revision petitioner validly against his wife, the maintenance ought not to have been granted @ Rs. 450/- per month to the wife by the court below. ( 7 ) THE learned Counsel appearing for the respondents on the other hand contends that the provisions of the Act, 1986 are beneficial in favour of the divorced wives and, therefore, the Act shall have to be construed accordingly. The learned Counsel further contends that the divorced Muslim woman still can elect to maintain an application under Section 125 of the Code. ( 8 ) THE marriage between the revision petitioner and the respondent was celebrated on 17. 8. 1999 and it was not in dispute. The court below on evidence found that the revision petitioner pronounced talaq on 10. 10. 2000 and gave divorce to his wife, the respondent herein. That finding of the Court below has not been assailed by the respondent-wife in any independent proceedings. 8. 1999 and it was not in dispute. The court below on evidence found that the revision petitioner pronounced talaq on 10. 10. 2000 and gave divorce to his wife, the respondent herein. That finding of the Court below has not been assailed by the respondent-wife in any independent proceedings. Perhaps she is rest content with the ultimate direction given by the learned Judge of the Family Court under the impugned order for payment of Rs. 450/- per month towards maintenance. Therefore, the finding that she was a divorcee in view of the talaq pronounced validly by the revision petitioner and communicated to her remains unchallenged. ( 9 ) THE point germane under the circumstances for consideration would be whether the respondent can claim maintenance validly from her husband; and if so, under what provision and at what reasonable amount? ( 10 ) THE application seeking maintenance has been filed under Section 125 of the Code. Of course, the label under which the petition has been filed is not the criterion and even if a wrong provision has been mentioned in the petition, if the petition could be otherwise maintained in any other provision it is of no consequence and the petition could be treated as having been filed under the relevant provision. Having regard to the finding given by the Court below that the petitioner is a divorcee, it becomes relevant to consider certain provisions of the Act, 1986, the constitutional validity of which has been upheld by the Apex Court very recently in danial Latifi and another v. Union of India, 2001 (2)ALD (Crl)787 (SC ). ( 11 ) THE preamble of the Act sets forth that to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their husbands and to provide maintenance to them the act has been passed. Under Section 2 (a) of the Act, the expression "divorced woman" has been defined to mean a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim Law. Under Section 2 (a) of the Act, the expression "divorced woman" has been defined to mean a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim Law. Under section 2 (b) of the Act "iddat period" has also been defined to mean, three menstrual courses after the date of divorce, if she is subject to menstruation; three lunar months after her divorce, if she is not subject to menstruation, and; if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy whichever is earlier. ( 12 ) SECTIONS 3 and 4 of the Act are very much germane for consideration in the context, which read as under:"3. Mahr or other properties of Muslim woman to be given to her at the time of divorce : (1) 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; (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 mahr 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 mahr or dower due has not been made and 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 any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provisions and maintenance, mahr 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 mahr 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 mahr 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; (4) If any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the code of Criminal Procedure, 1973 (2 of 1974) and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code. 4. 4. Order for payment of maintenance : (1) 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 re-married 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, having regard to the needs of the divorced woman, the 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 proportions in which they would inherit her property and at such periods as he may specify in his order:provided that where such a divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her;provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. (2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the proviso to subsection (1), the Magistrate may, by order, direct the State Wakf Board established under Section 9 of the Wakf Act, 1954 (29 of 1954), or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order. " ( 13 ) THUS Section 4 of the Act provides that, where the Magistrate is satisfied that a divorced woman has not been 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, having regard to the needs of the divorced woman, the 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 proportions in which they would inherit her property and at such periods as he may specify in his order. ( 14 ) SECTION 5 of the Act provides for option to be governed by the provisions of sections 125 to 128 of the Code. ( 14 ) SECTION 5 of the Act provides for option to be governed by the provisions of sections 125 to 128 of the Code. It reads as under:"section 5: Option to be governed by the provisions of Sections 125 to 128 of Act 2 of 1974 :if, on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the Court hearing the application, the magistrate shall dispose of such application accordingly. Explanation :for the purposes of this section, "date of the first hearing of the application" means the date fixed in the summons for the attendance of the respondent to the application. " ( 15 ) A perusal of the above provisions would make it clear that the Act is a complete Code and regulates the obligations due to a Muslim woman divorcee. Section 5 of the Act gives option to the parties. The parties may on the date of first hearing by filing an affidavit or any other declaration in writing may prefer to be governed by the provisions of Sections 125 to 128 of the code, and the Magistrate should dispose of such application accordingly. If such an option has not been exercised on the first date of hearing, they would be governed by Sections 3 and 4 of the Act. Once the option has not been exercised in accordance with the provisions contained in Section 5 of the Act, the Act puts the parties outside the scope of Section 125 of the Code. In the instant case the parties have exercised no such option. The application has been filed only under the provisions of Section 125 of the Code, oblivious of the mandatory provisions of the Act. Notwithstanding the same, the application could be treated as an application having been filed under section 3 (2) of the Act as discussed by me hereinabove. In the instant case the parties have exercised no such option. The application has been filed only under the provisions of Section 125 of the Code, oblivious of the mandatory provisions of the Act. Notwithstanding the same, the application could be treated as an application having been filed under section 3 (2) of the Act as discussed by me hereinabove. ( 16 ) UNDER clause (1) (a) of Section 3 of the Act, a divorced woman is entitled to a reasonable and fair provision and maintenance from her former husband to be paid to her within the period of iddat. ( 17 ) THE legal position is no more res Integra and has been considered by a constitution Bench of the Apex Court very recently in Daniel Latifi s case (supra ). In para-29 of its judgment, the Apex Court held thus;"a careful reading of the provisions of the act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend 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. 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 cloths, 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 a 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 the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time. It would extend to the whole life of the divorced wife unless she gets married for a second time. "at the end, the Apex Court summed up its conclusions, thus: (1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes the maintenance as well. Such a reasonable and fair provisions extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3 (1) (a) of the Act; (2) Liability of Muslim husband to his divorced wife arising under Section 3 (l) (a) of the Act to pay maintenance is not confined to iddat period; (3) A divorced Muslim woman who has not re-married and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf board established under the Act to pay such maintenance; and (4) The provisions of the Act do not offend articles 14, 15 and 21 of the Constitution of india. ( 18 ) IN view of the above authoritative pronouncement of the Apex Court, there can be no difficulty in disposing of this matter. The learned Additional Judge, Family court, Secunderabad has not properly understood the said judgment. Perhaps in his view 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 is to be extended beyond the iddat period also. In that view of the matter, he directed the revision petitioner to pay maintenance at the rate of Rs. 450/- from the date of petition. That is not the quintessence of the judgment of the Apex Court referred to supra. In that view of the matter, he directed the revision petitioner to pay maintenance at the rate of Rs. 450/- from the date of petition. That is not the quintessence of the judgment of the Apex Court referred to supra. In an application filed by the divorced wife against her husband under the provisions of the Act what the Magistrate is expected to do is that he having regard to the reasonable needs of the divorced woman for her residence, her food, her clothes and other articles, has to assess the reasonable and fair provision for the future of the divorced wife or till she gets married for the second time, which is obviously beyond the iddat period and after such assessment of the reasonable and fair provision should direct the husband to pay the same within the period of the iddat. In other words, the assessment of the reasonable and fair provision for the future of the divorced wife including her maintenance would no doubt extend beyond the iddat period till her lifetime or till she gets married for the second time. But the whole of the amount should be assessed reasonably and the husband is obliged to pay that amount within the Iddat period. If he fails to pay that amount representing the reasonable and fair provision for the future of the divorced wife, a divorced muslim woman should approach the Court under Section 3 (2) of the Act for recovery of that amount along with the Mahr or dower and other jahez articles. This legal position enunciated by the Apex Court has not been properly understood by the learned family Court Judge. Therefore, the order now being impugned is liable to be set aside. ( 19 ) IN the result, the Appeal allowed and the order now being impugned is hereby set aside. The matter is remitted to the Court below for fresh consideration in the light of the observations made by this Court inter alia in the order.