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2025 DIGILAW 1524 (KER)

K. Musthafa S/o Moideen v. K. P. Safiya D/o K. P. Hamsa

2025-05-28

KAUSER EDAPPAGATH

body2025
ORDER : 1. This criminal revision petition has been filed challenging the order passed by the Sessions Court, Kozhikode (for short, 'the Sessions Court') in Crl. R.P. No. 97 of 2001, dated 15 May 2004. 2. The petitioner herein was the legally wedded husband of the 1 st respondent. The parties are Muslims and governed by Muslim Personal Law. Their marriage was solemnized on 14.06.1999. Admittedly, the petitioner divorced the 1 st respondent by pronouncing Talaq. The 1 st respondent filed a petition before the Judicial First-Class Magistrate Court-V, Kozhikode (for short, 'the trial court') under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short, 'Muslim Women Protection Act') as M.C. No. 12 of 2000 claiming Rs. 2,00,000/- towards reasonable and fair provision for the future maintenance, Rs.9,000/- towards maintenance during the iddat period and for the return of 20 sovereigns of gold ornaments and Rs.50,000/- allegedly misappropriated by the petitioner. The trial court, after trial, allowed the petition in part and directed the petitioner to pay a sum of Rs. 75,000/- as the fair provision for future maintenance and Rs. 4,500/- towards the maintenance during the iddat period. The claim for the return of gold ornaments and Rs. 50,000/- allegedly misappropriated by the petitioner was disallowed. Dissatisfied with the order passed by the trial court, the 1 st respondent preferred revision before the Sessions Court as Crl. R.P. No.97 of 2001. The Sessions Court as per the order dated 15.05.2004 allowed the revision in part, enhancing the fair provision for the future maintenance to Rs.90,000/- and directed the petitioner to pay to the 1 st respondent a further sum of Rs.90,000/- being the value of the gold ornaments and Rs.50,000/- misappropriated by him. Aggrieved by the said order, the petitioner/husband preferred this revision petition. 3. Since the revision petitioner is not represented by a lawyer, Advocate M.Vishnupriya was appointed as Amicus Curiae to assist the court. I place on record my appreciation for the valuable assistance rendered by the Amicus Curiae. 4. I have heard Smt.M.Vishnupriya, the learned Amicus Curiae and Sri. Sunny Mathew, the learned counsel for the 1 st respondent. 5. The Muslim Women Protection Act is a piece of legislation which deals with the civil rights of Muslim women that they can claim from their husbands at the time of divorce. 4. I have heard Smt.M.Vishnupriya, the learned Amicus Curiae and Sri. Sunny Mathew, the learned counsel for the 1 st respondent. 5. The Muslim Women Protection Act is a piece of legislation which deals with the civil rights of Muslim women that they can claim from their husbands at the time of divorce. The enactment is stated to be an aftermath legislation of the decision rendered by the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum and Others ( AIR 1985 SC 945 ). It aims to provide a legal framework for the protection of the rights of divorced Muslim women and ensure that they receive fair and reasonable provision and maintenance, and other entitlements on their divorce. 6. The important Section in the Act is Section 3 which provides that divorced women is entitled to obtain from her former husband “maintenance”, “provision” and “mehr” and recover from his possession her wedding presents. Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her husband, a reasonable and fair provision and maintenance which is to be made and paid to her within the iddat period. The wording of Section 3 of the Act appears to indicate 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. Under Section 3(2), the Muslim divorcee can apply to a Magistrate if the former husband has not paid to her a reasonable and fair provision and maintenance or mehr due to her or has not delivered the properties given to her before or at the time of marriage by her relatives, or friends, or the husband or any of his relatives or friends. Section 3(3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may think fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of her former husband. 7. The dual expressions "provision and maintenance" used in Section 3 led to conflicting rulings on their import by various High Courts. 7. The dual expressions "provision and maintenance" used in Section 3 led to conflicting rulings on their import by various High Courts. Some of the High Courts held that the two expressions meant the maintenance of the iddat period only, while some others took the view that "provision" was different from "maintenance" and both would be payable under the Act. Finally, the Constitution Bench of the Supreme Court in Danial Latifi v. Union of India ( AIR 2001 SC 3958 ) settled the issue, holding that a former husband is liable to make reasonable and fair provision for the future of the divorced wife, which includes her maintenance as well. Interpreting the meaning of the term "within" used under Section 3(1)(a) of the Act read with the terms "fair" and "reasonable", the Court concluded that the maintenance, being fair and reasonable, should exceed the iddat period but must be made within the iddat period. Such maintenance made during the iddat period should be for her entire future, that is, the time after the expiration of the iddat period as well. It was observed that the emphasis of Section 3(1) (a) is not on the nature of duration of any such 'provision' or 'maintenance', but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, 'within the iddat period'. Accordingly, the Constitution Bench concluded that the former husband's liability under the Act to provide maintenance to his divorced wife is not confined to the iddat period. The Constitution Bench also upheld the constitutional validity of the Act. 8. The marriage and divorce are not in dispute. The 1 st respondent has claimed the maintenance during iddat period, a reasonable and fair provision for the future as well as the value of the gold ornaments and money misappropriated by the petitioner. The petitioner has no case that he has discharged his obligation under Section 3 of the Muslim Women Protection Act by paying the maintenance during the iddat period and a reasonable and fair provision for the future. However, he has denied the case set up by the 1 st respondent that he had misappropriated 20 sovereigns of gold ornaments and Rs. 50,000/- of the 1 st respondent. However, he has denied the case set up by the 1 st respondent that he had misappropriated 20 sovereigns of gold ornaments and Rs. 50,000/- of the 1 st respondent. The provisions contained in the Muslim Women Protection Act in no uncertain terms mandate that a divorced Muslim woman should be provided with fair and reasonable provision and maintenance by her former husband. Since the petitioner has failed to discharge his obligation under Section 3 of the Act, he should be directed to pay the maintenance amount during the period of iddat and a fair provision for future. 9. Holy Quran, the foremost source of Muslim law, imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The verse (Ayat) 241 of the Holy Quran reads: "And for the divorced woman (also) a provision (should be made) with fairness (in addition to dower): (this is) a duty (incumbent) on the reverent". The Muslim Women Protection Act is, thus, a declaratory law codifying and recognising pre-existing rules of Muslim law regarding rights and obligations of divorced persons. The Parliament, while enacting the law based on the above Quranic verse, seems to have intended 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 her 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 is thus meant to enable the divorced wife to take care of herself for the rest of her life. It cannot be an illusory amount or a pittance, just to pull on her life. All reasonable amenities in the life of a divorced woman, which she enjoyed at the time of and during the continuance of marriage, could also be expected to be continued in her future life after divorce as well. It cannot be an illusory amount or a pittance, just to pull on her life. All reasonable amenities in the life of a divorced woman, which she enjoyed at the time of and during the continuance of marriage, could also be expected to be continued in her future life after divorce as well. Though it would be virtually impossible to identify and apply any straight jacket formula to quantify the amount payable under Section 3 , the quantum of reasonable and fair provision and maintenance should be fixed, taking into account the status of the parties, the age of the divorced woman at the time of marriage and at the time of divorce, standard of life of the divorced woman enjoyed during the marriage, prospects of her remarriage, the period during which they lived together, the expenses and liabilities that the husband and wife were forced to endure because of the marriage and divorce, inflation, the capacity of the former husband and also other attendant circumstances. These are not exhaustive. The amount so fixed must be enough to take care of the future needs of the divorced women in the prevailing socio-economic scenario [See Danial Latifi (supra), Suhadath v. Shihab , 2022 (6) KLT 581 , Aboobacker C.K. v. Rahiyanath and Another, 2008 (3) KHC 492 and Seenath v. Iqbal and Another , 2009 (2) KHC 1009 ]. 10. Both the petitioner and the 1 st respondent were employed at Doha, Qatar. The definite case of the 1 st respondent, in the pleading as well as during evidence, is that the petitioner was employed at Qatar in the military department and he was earning Rs. 20,000/- per month. In the counter statement filed by the petitioner, he has admitted that he was employed at Qatar in the military department. The specific averment in the petition that the petitioner was drawing a salary of Rs.20,000/- per month was not denied in the counter statement. The petitioner did not disclose his income either. The petitioner did not adduce any evidence either. The evidence given by the mother of the 1 st respondent on her behalf as PW1 that the petitioner earns Rs.20,000/- from his employment at Qatar was not successfully challenged in cross-examination. Thus, it is proved that the petitioner earns Rs. 20,000/- per month. The petitioner did not disclose his income either. The petitioner did not adduce any evidence either. The evidence given by the mother of the 1 st respondent on her behalf as PW1 that the petitioner earns Rs.20,000/- from his employment at Qatar was not successfully challenged in cross-examination. Thus, it is proved that the petitioner earns Rs. 20,000/- per month. The trial court, after analysing the evidence on record, has found that the 1 st respondent requires Rs.1,500/- per month for her maintenance. It was upheld by the Sessions Court. I see no reason to interfere with the said finding of fact in this revision petition. The trial court fixed Rs. 75,000/- as the reasonable and fair provision for future maintenance. The appellate court enhanced it to Rs. 90,000/-. The appellate court while quantifying the reasonable and fair provision for future maintenance, has taken into consideration the maintenance allowance required by the 1 st respondent for a total period of five years, calculated at the rate of Rs.1,500/- per month. Taking into account the factors that are to be considered while quantifying the amount payable under Section 3, Rs.90,000/- quantified by the Sessions Court as a reasonable and fair provision for future maintenance appears to be reasonable, if not inadequate. 11. The trial court denied the claim of the 1 st respondent for the return of the value of the gold ornaments and the money, mainly on the ground that there is no independent evidence apart from the testimony of PW1. However, the Sessions Court found that the evidence tendered by PW1 in this regard is quite believable. I see no reason to take a different view. PW1, the mother of the 1 st respondent, categorically deposed that 20 sovereigns of gold ornaments and Rs.50,000/- were misappropriated by the petitioner. She deposed that she was present when the money and gold ornaments were handed over to him. There is nothing to disbelieve the said testimony. That apart, no contra evidence has been adduced by the petitioner. He did not even enter the box to deny the said case set up by the 1 st respondent. For the reasons stated above, I see no reason to interfere with the impugned order. Accordingly, the criminal revision petition is dismissed.