O R D E R Two interesting questions have primarily arisen for consideration in thispetition under Section 482 of the Code of Criminal Procedure filed by a formerhusband who has suffered an order under Section 3 of the Muslim Women(Protection of Rights on Divorce) Act, 1986 (for short 'the Act'). (i) Is consummation of marriage sine-qua-non for entitlement ofreasonable and fair provision and maintenance to a divorced Muslim woman? (ii) Is the court debarred from entertaining an application under Section 3of the Act before expiry of the iddat period? 2. The above questions have cropped up in the following facts andcircumstances: 3. The respondent herein who is the divorced wife of the petitioner, initiatedproceedings under Section 3 of the Act alleging inter-alia that she had been deniedthe dues payable under the Act after her divorce. She also claimed that thepetitioner had not returned her gold ornaments and cash given to her by her parentsand relatives at the time of marriage. It was also averred in the petition that herformer husband had wilfully refused to pay her 'Mahr' which was promised at thetime of marriage. A total sum of Rs.2,42,786/- was claimed by the respondentunder various heads, including maintenance during the period of Iddat. 4. In the counter statement petitioner contended that he had married therespondent in the year 1997 after the death of his first wife. According to thepetitioner, he decided to marry the respondent since he wanted company in his oldage. He was 73 at the time of marriage. But soon after the marriage, he realisedthat the respondent was incapable of having sexual intercourse since she did notpossess any of the anatomical or physiological attributes of a female, though inoutward appearance she looked like a woman. Petitioner asserted that therespondent was not a woman at all and therefore the marriage was notconsummated. When the respondent realised that the petitioner had detected thisdeformity in her, she had left the matrimonial home after discussing the matterwith him. In short, while resisting the claim made by the respondent under Section3of the Act, it was contended by the petitioner that the respondent not being awoman and the marriage between him and her not having been consummated, shewas not entitled to invoke the above statutory provision. 5. In short, while resisting the claim made by the respondent under Section3of the Act, it was contended by the petitioner that the respondent not being awoman and the marriage between him and her not having been consummated, shewas not entitled to invoke the above statutory provision. 5. After considering the oral and documentary evidence and the rivalcontentions of the parties, the trial court held that the respondent was entitled toget a sum of Rs.8,368/- towards the value of two sovereigns of gold andRs.4,500/- towards maintenance during the iddat period. It was further held thatthe petitioner was liable to return a sum of Rs.15,000/- received by him at the timeof marriage. He was also directed to pay a sum of Rs.75,600/- towards fair andreasonable provision and maintenance of the respondent. Thus, as against a totalclaim of Rs.2,42,786/-, the trial court awarded a sum of Rs.1,03,468/- with 6%interest per annum from the date of order till realisation. 6. The above order was challenged by the petitioner before the SessionsCourt which modified and reduced the amount awarded by the trial court. TheSessions Court found that the respondent was entitled to get Rs.3,000/- asmaintenance during "iddat" period and a sum of Rs.60,000/- as fair andreasonable provision and maintenance. The amounts awarded by the trial courtunder the other heads were disallowed. 7. It is vehemently contended by Shri T.G. Rajendran, learned counsel forthe petitioner that the respondent was not entitled to get the benefits of theprovisions of the Act at all, since she did not come within the definition of"divorced woman" under Section 2(a) of the Act. The attempt of the learnedcounsel appears to be, to contend for the position, that the respondent not being awoman, she would not come within the purview of the Act. It is contended thatthe respondent did not have any of the sexual attributes of a woman, though shelooked like one in outward physical appearance. Obviously, therefore, thepetitioner could not have any sexual relationship with the respondent. Resultantly,there was no consummation of the marriage. Learned counsel contends that only awoman can be a 'wife' and naturally therefore only a divorced 'wife' can claimmaintenance from her former husband. 8. It is pertinent to note that the marital relationship between the petitionerand the respondent had admittedly lasted for more than four years. It is beyondcontroversy that the petitioner had divorced the respondent in October 2001 asrevealed from Ext.P3 communication sent by him. 8. It is pertinent to note that the marital relationship between the petitionerand the respondent had admittedly lasted for more than four years. It is beyondcontroversy that the petitioner had divorced the respondent in October 2001 asrevealed from Ext.P3 communication sent by him. The respondent hadspecifically averred in the petition before the trial court that she was sent out of thematrimonial home in November 1999. Though the petitioner had asserted in thecounter statement that the respondent had not lived with him for more than sixmonths, it was later stated by him that the respondent had left the matrimonialhome about two years ago. Thus, it is clear from the pleadings that the respondenthad lived with the petitioner at least for almost three years as contended by her. Itwas admitted by the petitioner when he was examined as CPW.1 that he hadnever taken the respondent to a doctor. It was also admitted by him that there wasno "problem" during the period when he and the respondent lived together. In thiscontext, it may be pertinent to note that the petitioner had of course made abelated attempt to send the respondent for a medical examination. But the trialcourt did not allow the prayer. Though the petitioner had challenged the aboveorder before this court earlier, he could not get a favourable result. 9. I have referred to the above aspects of the case to consider the questionwhether consummation of marriage can be presumed applying the principle of"valid retirement" (khilwat-us-sahiha) under Mahomedan Law. 10. In Mulla's Principles of Mahomedan Law, it has been stated that"when the husband and wife are alone together under circumstances which presentno legal, moral or physical impediment to marital intercourse, they are said to be in"valid retirement" (khilwat-us-sahiha). A valid retirement in Sunni law has thesame legal effect as actual consummation as regards dower (Sections 267, 336(2)),the establishment of paternity, the observance of iddat (section 257), wife'smaintenance during iddat (section 279), ..................." 11. The above excerpt unambiguously admits of presumption ofconsummation if there is a "valid retirement". If the husband and wife cohabit orlive together without there being any other circumstance inhibiting or preventingtheir physical union, it can be presumed, unless otherwise proved, that themarriage had been consummated. In the absence of any contra evidence adducedby the petitioner, the courts below were, in my view, justified in repelling thecontention raised by the petitioner that the marriage had not been consummated. 12. In the absence of any contra evidence adducedby the petitioner, the courts below were, in my view, justified in repelling thecontention raised by the petitioner that the marriage had not been consummated. 12. As regards the question of maintainability of an application underSection 3 of the Act by a divorced Muslim woman even in the absence ofconsummation, there cannot be any room for doubt that a divorced woman canclaim the benefits provided under the above provisions of the Act, irrespective ofthe fact whether there was consummation or not. In this context, it will beprofitable to refer to the relevant clauses of Section 3 of the Act: "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 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 any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision 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: x x x x x x x x x x x xA perusal of the above provisions shows that a divorced woman shall be entitled toreasonable and fair provision and maintenance within the iddat period from herformer husband apart from the dower and other dues or properties mentioned inclause (d) of sub-section (1). Sub-section (2) of Section 3 enables the divorcedwoman, to make an application before the competent court for an order forpayment of the statutory dues payable to her by her former husband. It is theadmitted position that petitioner and respondent had lived together as husband andwife for almost three years, as is evident from the pleadings and evidence onrecord. Petitioner had no case that he had discharged the statutory liabilities ascontemplated under the Act. The petitioner had never raised any issue regardingthe absence of womanly attributes in the respondent or about her alleged inabilityto have sexual intercourse with him. That being the position, there cannot be anydoubt that the respondent was entitled to make an application since she hadsatisfied the statutory requirements. 13. It is true that consummation of marriage may have relevance andsignificance in the matter of observance of iddat in the event of divorce. That being the position, there cannot be anydoubt that the respondent was entitled to make an application since she hadsatisfied the statutory requirements. 13. It is true that consummation of marriage may have relevance andsignificance in the matter of observance of iddat in the event of divorce. UnderSection 257(2) iddat has been described " as the period during which it isincumbent upon a woman, whose marriage has been dissolved by divorce or deathto remain in seclusion, and to abstain from marrying another husband. Theabstinence is imposed to ascertain whether she is pregnant by the husband, so as toavoid confusion of the parentage. When the marriage is dissolved by divorce, theduration of iddat, if the woman is subject to menstruation, is three courses; if sheis not so subject, it is three lunar months. If the woman is pregnant at the time, theperiod terminates upon delivery. When the marriage is dissolved by death, theduration of the iddat is four months and ten days. If the woman is pregnant at thetime, the iddat lasts for four months and ten days or until delivery, whicheverperiod is longer. It is further provided in Section 257 that if the marriage isdissolved by death, the wife is bound to observe "iddat" whether the marriage wasconsummated or not. If the marriage was dissolved by divorce, she is bound toobserve "iddat" only if the marriage was consummated; if there was noconsummation, there is no iddat, and she is free to marry immediately. 14. The above provision does not mean or cannot, by any stretch ofimagination, be interpreted to mean that the liability to pay maintenance by thehusband to the divorced wife would cease if the woman is not obliged to observeiddat, because of non-consummation of marriage. The statutory liability to paymaintenance during the period of iddat is provided not only under Section 3, but itis also an obligation cast upon the husband in Section 279 under the MahomedanLaw. It is provided in the above clause that the wife is entitled to maintenanceduring the period of iddat after divorce. If the divorce was not communicated toher until after the expiry of that period, she is entitled to maintenance until she isinformed of the divorce. However, a widow is not entitled to maintenance duringthe period of iddat consequent upon her husband's death. If the divorce was not communicated toher until after the expiry of that period, she is entitled to maintenance until she isinformed of the divorce. However, a widow is not entitled to maintenance duringthe period of iddat consequent upon her husband's death. Thus, it is clear not onlyfrom Section 3 of the Act, but also from Section 279 that a divorced woman isentitled to get maintenance during the period of iddat irrespective of the factwhether the marriage was consummated or not. More importantly, Section 3 ofthe Act does not refer to consummation of the marriage at all in order to make thewife eligible to claim maintenance during iddat. In any view of the matter, I haveno hesitation to hold that a divorced woman, whether the marriage wasconsummated or not, is entitled to claim maintenance during iddat apart from fairand reasonable provision towards future maintenance and also dower and otherstatutory dues in the event of her being divorced by the husband. 15. The other contention raised by the petitioner relates to the questionwhether an application under Section 3 can be entertained if it is filed before theexpiry of the period of iddat. Learned counsel contends that a divorced womanwill get a cause of action to file an application under Section 3 only if the husbandhas failed to pay the same before the expiry of the "iddat" period. In other words,the contention is that the divorced woman should wait and see if her formerhusband pays the dues before the expiry of the "iddat" period. She has to wait tillthe expiry of the period, and an application can be filed only after its expiry, it iscontended. There is no rhyme or reason, leave alone any legal basis, for the abovecontention. 16. As noticed already, a divorced woman is entitled to maintenance duringthe period of iddat under Section 3 of the Act. It becomes payable by the husbandthe moment the divorce is effected. In other words, the obligation to paymaintenance during the period of iddat arises the moment divorce is effected.Undoubtedly, the Act is intended to provide ameliorative safeguards to protect therights of divorced muslim women. The provision to pay maintenance by thehusband during the period of iddat has definitely got a salutary object. In other words, the obligation to paymaintenance during the period of iddat arises the moment divorce is effected.Undoubtedly, the Act is intended to provide ameliorative safeguards to protect therights of divorced muslim women. The provision to pay maintenance by thehusband during the period of iddat has definitely got a salutary object. Thelegislative intent appears to be to ensure that a divorced woman is not left in thelurch during the period of iddat, especially since the divorced woman is supposedto remain in seclusion. She may not be in a position to move around. Even if shehas an avocation in life, she may not be able to carry on with or pursue such job oravocation. It is therefore that the law has made it a mandatory obligation on thehusband to see that the divorced woman is provided with adequate maintenance tolook after herself especially during the 'iddat' period. It does not stand to reasonthat the divorced woman should be asked to wait for the expiry of the iddat periodand then only approach the court seeking maintenance for that period. If such aninterpretation is given, it will defeat the very object and purpose of the statutoryprovision. In this context, it may also be noticed that Section 3 makes it obligatoryon the court to pass orders on the application for maintenance within one monthfrom the date of receipt thereof. In any view of the matter, the contention raisedby the petitioner that the application submitted by the respondent under Section 3of the Act was premature, cannot be sustained at all. 17. I have carefully perused the orders passed by the courts below. In myview, the order passed by the learned Sessions Judge does not suffer from anyillegality or irregularity. No interference is warranted as regards the quantum ofmaintenance as modified by the Sessions Court. Thus, having regard to the entirefacts and circumstances, and also having perused the materials on record, I findno merit in any of the contentions raised by the petitioner. The questions posedabove are answered in the negative. The revision petition is dismissed.