Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 343 (PAT)

Halima Khatoon v. State Of Bihar

2004-03-25

NAVIN SINHA

body2004
Judgment Navin Sinha, J. 1. The petitioner herein has preferred this application against the order dated 29.8.2002 passed in Cr. Revision No. 49/2002 (S) by the 3rd Additional Sessions Judge, Saharsa. By the said order, the learned Sessions Judge set aside the order dated 16.2.2002 passed by the Judicial Magistrate, 1st Class Supaul is Misc. Case No. 12/95. The learned Sessions Judge held that the order granting lump sum payment/amount of Rs. 25,000/- to the petitioner for maintenance for the post "iddat period was against the provisions of Section 3(1)(A) of the Muslim Women (Protection of Rights or Divorce) Act, 1986 (hereinafter referred to as the Muslim Womens Act). 2. The facts necessary for the purpose of the present decision are briefly narrated hereinafter. The petitioner, wife of opposite party No. 2 filed Misc. Case No. 12/95 before the Chief Judicial Magistrate, Supaul stating that the opposite party No. 2 has divorced the petitioner on 15.11.1994 and that she had not been paid her denmehr maintenance for the iddat period and certain other reliefs. The learned Chief Judicial Magistrate transferred the case to the Court of Judicial Magistrate, 1st Class, Supaul for trial and disposal. Opposite party No. 2 conceding the fact of marriage and divorce contested the claim. The learned Judicial Magistrate, 1st Class after hearing the parties by his order dated 18.12.1995 allowed the claim of the petitioner for a total sum of Rs. 34,565/- which amongst others included a sum of Rs. 1715/- as reasonable and fair provision for the iddat period. 3. Opposite party No. 2 herein then preferred Cr. Revision No. 7/96 (S) before the Sessions Judge, Saharsa. The revision application was finally heard on transfer by the 3rd Additional Sessions Judge, Saharsa. By order dated 15.2.1997 the concerned Court allowed the revision application of the opposite party herein and set aside the order dated 18.12.1995 passed by the Judicial Magistrate, 1st Class, Supaul. 4. The petitioner herein then preferred Cr. Misc. No. 5723/97 before this Court and which was allowed by an order dated 9.4.1999. The order of 3rd Additional Sessions Judge dated 15.2.1997 was set aside and the matter was remanded with a direction to hear the matter afresh and pass a reasoned order in accordance with law, however the direction for payment of Rs. Misc. No. 5723/97 before this Court and which was allowed by an order dated 9.4.1999. The order of 3rd Additional Sessions Judge dated 15.2.1997 was set aside and the matter was remanded with a direction to hear the matter afresh and pass a reasoned order in accordance with law, however the direction for payment of Rs. 34,565/- inclusive of maintenance for the period of iddat as granted by the Judicial Magistrate, 1st Class, by his order dated 18.12.1995 was not interfered with. 5. Cr. Revision No. 7 of 1996 was then heard afresh by the 3rd Additional Sessions Judge on remand. The opposite party did not seriously contest before the Revisional Court on remand that the petitioner was entitled to a reasonable and fair provision for the "iddat period. The petitioner herein during the hearing also claimed lump sum maintenance for the "post iddat period, to be paid during the period of "iddat. The matter was finally decided by the 3rd Additional Sessions Judge, Saharsa who by his order dated 25.6.1999 remanded the matter to the Court of Judicial Magistrate, 1st Class, inter alia for a decision on the claim of the petitioner for the post iddat period. The original order of the Magistrate dated 18.12.1995 directing payment of Rs. 34,565/- including the reasonable the fair provision for the iddat period was not interfered with. 6. Aggrieved thereby the opposite party No. 2 preferred Cr. Misc. No. 18091/ 99 before this Court arid which was dismissed by an order dated 29.9.1999. 7. In accordance with the direction of the Revisional Court dated 25.6.1999 passed in Cr. Revision No. 7/96 by 3rd Additional Sessions Judge, Saharsa, the Judicial Magistrate, 1st Class proceeded to rehear the matter. It is relevant to state here that after the order dated 29.9.1999 in Cr. Misc. No. 18091/99 by this Court, opposite party No. 2 proceeded to pay the aforesaid sum of Rs. 34,565/- inclusive of reasonable and fair provision for the iddat period as originally directed by the order dated 18.12.1995 passed by the Judicial Magistrate, 1st Class. Appearing before the Judicial Magistrate, 1st Class, on remand the opposite party No. 2 questioned the right of the petitioner for grant of maintenance for the post iddat period. The petitioner herein placing reliance on judicial pronouncements asserted that she was entitled for the lump sum maintenance for the post iddat period also. Appearing before the Judicial Magistrate, 1st Class, on remand the opposite party No. 2 questioned the right of the petitioner for grant of maintenance for the post iddat period. The petitioner herein placing reliance on judicial pronouncements asserted that she was entitled for the lump sum maintenance for the post iddat period also. In the circumstances, by his order dated 16.2.2002 the Judicial Magistrate, 1st Class, proceeded to hold that under the provisions of aforesaid Section 3(1)(A) of the Muslim Womens Act the petitioner was entitled to lump sum maintenance for the post iddat period. After considering the requirement of the petitioner and paying capacity of the opposite party the Court proceeded to hold and direct the opposite party No. 2 to pay lump sum amount of Rs. 25,000/- only to the petitioner for maintenance for the post iddat period. 8. Opposite party No. 2 aggrieved thereby then preferred Cr. Rev. No. 49/ 2002 before the 3rd Additional Sessions Judge, Saharsa. who by his order dated 29.8.2002 proceeded to pass the impugned order holding that the grant of lump sum payment of Rs. 25,000/- for maintenance to the petitioner for the post iddat period was contrary to the aforesaid law and provisions of the Muslim Womens Act. Accordingly he set aside the order and again proceeded to remand the matter to the Court below for a fresh decision. 9. From the aforesaid narration of facts it is apparent that ever since 1995 the petitioner has been exposed to various litigations by the opposite party No. 2 for her alleged legitimate claims against her husband. 10. I have heard learned counsel for the parties at length. The short contention of the petitioner is that the impugned order dated 29.8.2002 is erroneous and contrary to settled law laid down by this Court in, 1997 (1) PLJR 278 . Learned counsel for the petitioner further contends that in view of the recent decision of the Apex Court on the issue reported in, AIR 2001 SC 3958 , wherein inter alia the constitutional validity of the Muslim Womens Act was also under challenge, the order of the 3rd Additional Sessions Judge is erroneous in law, is fit to be set aside and the order dated 16.2.2002 of the Judicial Magistrate, 1st Class, in Misc. Case No. 12/95 requires to be affirmed. 11. Case No. 12/95 requires to be affirmed. 11. Learned counsel appearing on behalf of opposite party No. 2 argued that in the initial application filed by the petitioner in 1995 she did not make any claim for payment of lump sum maintenance for the post.iddat period. He argued that in any event the claim for the post iddat period should have been laid down during the iddat period at best. Counsel for the opposite party No. 2, therefore, contended that in the absence of the aforesaid two situations, the subsequent claim for lump sum maintenance for post iddat period was not tenable, would be contrary to law and, therefore, the order of the 3rd Additional Sessions Judge in Cr. Revision No. 49/ 2002 required no interference. 12. In the light of the aforesaid submissions made by the parties, the only question falling for determination in the present case is whether the petitioner would be entitled to lump sum maintenance for the post iddaf period, to be made during the iddat period by the opposite party No. 1. The law in this regard is enunciated in Section 3 of the aforesaid Muslim Womens Act and is, therefore, set out hereinbelow to the extent that the same be relevant for the present controversy : 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 for maintenance to be made and paid to her within the iddat period by her former husband." The scope of the words "reasonable and fair provision" (emphasis added) and "maintenance" has been the matter of judicial consideration both by this Court and the Apex Court. The judicial pronouncements have held that use of the words "maintenance" obviously related to the post iddaf period. To read the provisions otherwise would be to deny maintenance to a Muslim women and would render the provision open to challenge under Articles 14 and 16 of the Constitution as being ultra vires. The provisions would, therefore, have to be interpreted in a manner that the statute remains effective and operative as the legislature does not intended to enact unconstitutional laws. The provisions would, therefore, have to be interpreted in a manner that the statute remains effective and operative as the legislature does not intended to enact unconstitutional laws. This Court as far back as in 1996 on 8.10.1996 in the case of Haroon Rashid V/s. Requeeba Khatoon and another, reported in, 1997 (1) East Cr C 171 (Pat) (RB): 1997 (1) PLJR278, by a extensive reasoning has held that a Muslim woman would be entitled to a reasonable and fair provision during the period of iddaf and that she was also to be entitled to a reasonable and fair provisions of maintenance for the post iddaf period, to be paid during the period of iddaf. More recently the Supreme Court in the case of Danial Latifi and another V/s. Union of India and others, reported in AIR 2001 SC 3958 , while considering the constitutional validity of the Muslim Womens Act has with emphasis highlighted the travails of a divorced women and the ignominy faced by her in para 20 of the said judgment. Their lordships have held therein that Section 3 of the Muslim Womens Act is indicative that the husband has two separate and distinct obligations (i) "to make a reasonable and fair provision" for his divorced wife; and (ii) to provide "maintenance" for her. Their lordships have further held that the emphasis on these provisions was not on the nature of duration of any such "provision" or "maintenance" but on the time by which the arrangements for payment of provision and maintenance should be concluded, namely, "within the iddat period". The conclusion of their Lordship have been set out in para 36 of the judgment and the relevant extract of which is quoted hereinbelow for the sake of convenience as under : "While upholding the validity of the Act, we may sum up our conclusions : Court holds that (1) 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. 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(l)(a) of the Act. (2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period." 13. 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(l)(a) of the Act. (2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period." 13. In the light of the aforesaid discussions it is apparent that the law enjoins the opposite party No. 2 to make a reasonable and fair provision for the period of iddaf which he has complied with in pursuance of the order dated 18.12.1995 passed by the Judicial Magistrate, 1st Class and finally affirmed by this Court in Cr. Misc. No. 18091/99 as aforesaid. The controversy now rests only on the direction of the Judicial Magistrate, 1st Class, Supaul dated 16.2.2002 directing payment of maintenance for the post iddat period set at naught by the Revisional Court. In the light of the authoritative pronouncements of this Court as also of the Supreme Court, this Court holds that the impugned order dated 29.8.2002 passed in Cr. Revision No. 49/2002 is not sustainable. It is accordingly set aside. The order dated 16.2.2002 passed by the Judicial Magistrate; 1st Class, Supaul in Misc. Case No. 12/95 is affirmed. 14. The requirement to pay lump sum maintenance for the post iddat period during the period of iddat, is enjoined by law. It is not a claim to be raised and entertained only if pleaded. The law enjoins a duty on the husband to make a reasonable and fair provision for his wife during the iddat period and also for maintenance for the post iddat period to be paid during the period of iddat. Nevertheless in the present controversy I find that the wife had also raised the claim for maintenance for the post iddat period as early as in Cr. Revision No. 7/96. The law enjoins that provision of maintenance for the post iddat period had to be made during the period of iddat. The contention to that effect is, therefore, rejected. 15. In the result this application succeeds and is allowed.