Ujjal Bhuyan, J.@mdashBy this revision petition the petitioner has challenged the legality and validity of the judgment and order dated 7-3-2011 passed by the learned Sessions Judge, Goalpara in Case No. C.M. 47 of 2010. The facts leading to the filing of this petitioner may be briefly stated.
2. The Opp. Party filed a petition u/s 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 in the Court of the learned Chief Judicial Magistrate (CJM), Goalpara against the present petitioner, who was arrayed as the Opp. Party therein. The said petition was registered as Case No. MCR-355/2009. According to the Opp. Party, both the petitioner and the Opp. Party got married on 6.1.2003 as per Muslim law. The dower was fixed at Rs. 25,001/-, out of which an amount of Rs. 200/- was paid by the petitioner. Thus, an amount of Rs. 24,801/- remained outstanding as deferred dower. Out of wedlock, one child was born in the year 2005. According to the Opp. Party, the petitioner began to make demands for dowry and also began to torture her. He finally divorced her on 1.6.2007 without paying the deferred dower, maintenance for the iddat period and without returning the dowry goods and drove her away along with her minor child, whereafter she started living with her parents.
3. According to the Opp. Party she had filed an application u/s 125, Cr.P.C. claiming maintenance for herself and her minor child. The same was dismissed on 27.10.2009. According to the Opp. Party, she has preferred a revision against the aforesaid order of dismissal amongst the minor child.
4. Confining the petition filed u/s 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 to herself, the Opp. Party sought for the following reliefs:
(a) a reasonable and fair provision and maintenance to be paid within the iddat period from the date of divorce at the rate of Rs. 10,000/- per month,
(b) the agreed amount of dower of Rs. 24,801/-,
(c) the goods mentioned in the list attached to the petition,
(d) an amount of Rs. 5,000/- per month as future maintenance (post iddat period) and any other relief as may be deemed fit and proper.
5. The petitioner contested the case and submitted his written statement. The petitioner admitted the marriage and the fixation of the dower amount. He admitted that Rs. 24,801/- was to be paid on account of deferred dower. He also admitted the birth of the child and the divorce on 1-6-2007. He stated that at the time of divorce he had offered to pay the unpaid dower and maintenance for the iddat period but the Opp. Party refused to accept the same.
6. The Opp. Party adduced evidence by offering herself and two others as witnesses. The petitioner and another witness also adduced evidence.
7. After examining the evidence and hearing the parties, the learned CJM framed 4(four) points for determination, namely:
(1) whether the Opp. Party is entitled for an order for reasonable and fair provision and maintenance to be paid within the iddat period that is for 4 (four) months 10(ten) days from the date of divorce at the rate of Rs. 10,000/- per month?
(2) whether the Opp. Party is entitled to get the agreed amount of deferred dower of Rs. 24,801/- only?
(3) whether the Opp. Party is entitled to get the custody of the things claimed and mentioned in the list attached to the petition?
(4) whether the Opp. Party is entitled to get Rs. 5,000/- per month as future maintenance (for post iddat period)? and any other relief.
The learned CJM by the order dated 26.7.2010 decided the Point No. 1 against the Opp. Party. According to the learned CJM, a reasonable and fair provision and the quantum of maintenance ought to have been settled within the iddat period that is within the period from 1.6.2007 to 1.10.2007. Referring to the evidence adduced, the learned CJM held that during the iddat period the petitioner had offered to pay the deferred dower and one time maintenance allowance but the Opp. Party refused to accept the same and that there was no settlement between the parties within the iddat period. Therefore, the Opp. Party is not entitled to a reasonable and fair provision as well as maintenance to be paid within the iddat period as no settlement was made during the iddat period and that the said period had expired.
8. Regarding the Point No. 2, the learned CJM held that as the Opp. Party had claimed the deferred dower amount and the petitioner had also agreed to pay, therefore, the Opp. Party was entitled to get Rs. 24,801/- as deferred dower from the petitioner.
9. Holding that the Opp. Party had failed to prove that all the properties mentioned by her in the list were given to her at the time of marriage, the learned CJM decided the Point No. 3 against the Opp. Party.
10. As regard Point No. 4, the learned CJM after observing that the petitioner''s obligation as former husband to pay maintenance came to an end on expiry of the iddat period, held that the petitioner is not liable to pay future maintenance for post iddat period as claimed by the Opp. Party. Accordingly the said point was decided against the Opp. Party. Summing up, the learned CJM held that the Opp. Party is not entitled to get maintenance for the iddat period, custody over the properties claimed and maintenance for the post iddat period from the petitioner and that the Opp. Party is only entitled to get the amount of deterred dower of Rs. 24,801/- from the petitioner. Accordingly, direction was issued to the petitioner to pay the amount of deterred dower to the Opp. Party.
11. Aggrieved by the aforesaid order, the Opp. Party filed a revision petition in the Court of the learned Sessions Judge, Goalpara, which was registered as Case No. CM 47/2010. The learned Sessions Judge upon perusing the case record and after hearing the parties, formulated 3 (three) points for determination:
(1) Whether the Opp. Party is entitled to maintenance for the iddat period amounting to Rs. 10,000/- per month?
(2) Whether the Opp. Party is entitled to monthly allowance of Rs. 5,000/- as future maintenance?
(3) Whether the Opp. Party is entitled to recover the goods claimed by her?
Referring to the judgment of the Apex Court in the case of
12. It is this judgment and order which is under challenge in the present revision filed by the former husband i.e. the petitioner.
13. I have heard Mr. A.R. Sikdar, learned counsel for the petitioner as well as Mr. K. Sarma, learned counsel for the respondent.
14. Mr. Sikdar, learned counsel for the petitioner has contended that the learned Sessions Judge virtually followed the provision of Section 125 of the Code of Criminal Procedure, 1973, while directing the petitioner to pay a sum of Rs. 1,000/- per month to the Opp. Party after the iddat period till her remarriage. According to Mr. Sikdar, after the enactment of the Muslim Women (Protection of Rights on Divorce: Act, 1986, the provision of Section 125 stands totally excluded. Referring to the evidence of the Opp. Party, learned counsel submits that the Opp. Party did not accept the maintenance amount as was offered by the petitioner during the iddat period and since there was no settlement during the said period, the learned Sessions Judge was not justified in directing the payment of maintenance during the iddat period and also for the post iddat period. He refers to a judgment of the Andhra Pradesh High Court in the case of Zamrud Begum v. K. Md. Haneef and another, (Criminal Petition No. 485 of 2002) decided on 5.12.2002 in support of his contention that if there is no settlement of the maintenance amount claimed either before the iddat period or during the iddat period, the former wife can no longer claim maintenance against her former husband the moment the iddat period is over. He also refers to a decision of this Court in the case of Siddique Ali & Ors. v. Fatema Rashid, reported in 2007 (2) GLT 1. He, therefore, prays for setting aside the order of the learned Sessions Judge.
15. Mr. Sharma, learned counsel for the Opp. Party on the other hand supports the decision of the learned Sessions Judge. According to him, the judgment of the Apex Court in the case of Danial Latifi (supra) as well as the judgment of this Court in the case of Siddique Ali (supra) supports the stand of the Opp. Party. He contends that under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a reasonable and fair provision can be paid to a divorced Muslim women even beyond the iddat period.
16. The rival submissions made at the Bar have received the due and anxious consideration of this Court.
17. A Constitution Bench of the Apex Court in the case of
18. The above decision led to some controversy regarding the obligations of a Muslim husband to pay maintenance to the divorced wife. Perhaps with the intention of making the decision in the Shah Bano case ineffective, the Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986 (briefly "the Act" hereafter). The preamble to the said Act states that it is an Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their husbands and to provide for matters connected therewith or incidental thereto. As per Section 2(a) of the Act, a "divorce woman" has been defined to mean a Muslim woman who was married according to Muslim law and who has been divorced by or has obtained divorce from her husband in accordance with Muslim law. As per Section 3(1), a divorced woman shall be entitled to amongst others a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband and all the properties given to her before or at time of marriage or after the marriage by her relatives, friends, husband, any relatives of the husband or his friends. As per sub-section (2) of Section 3 of the Act, where a reasonable and fair provision and maintenance has not been made or paid or the properties referred to above have not been delivered to a divorced woman on her divorce, she may make an application to a Magistrate for an order for payment of such provision and maintenance, delivery of properties etc. As per sub-section (3), if the Magistrate is satisfied on receipt of such application that the 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, he may make an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman 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 her former husband. As per Section 4 of the Act, where the 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 accordingly to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper. Such order may also extend to the parents as well as the Wakf Board. As per Section 5 of the Act, if the divorced woman and her former husband declare on oath on the date of the first hearing of the application filed under sub-section (2) of Section 3 of the Act that they would prefer to be governed by the provisions of Sections 125 to 128, Cr. P.C., the Magistrate shall dispose of such applications accordingly.
19. The constitutional validity of the aforesaid Act was challenged before the Apex Court in the Danial Latifi''s case (supra). A Constitution Bench of the Apex Court upheld the validity of the said Act and summed up the conclusions in paragraph-35 of the said judgment, which is quoted hereunder:
36. While upholding the validity of the Act, we may sum up our conclusions:
(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(1)(a) of the Act.
(2) Liability of a Muslim husband to his divorced wife arising u/s 3(1)(a) of the Act to pay maintenance is not confined to the iddat period.
(3) A divorced Muslim Women who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided u/s 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.
(4) The Provision of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
In the course of the deliberation, the Apex Court came to the conclusion that the Act actually and in reality codifies what was stated in the Shah Bono case. The enactment though purports to overcome the view expressed in the Shah Bano case in relation to a divorced Muslim women getting something by way of maintenance is expressed in the Shah Bano case in relation to a divorced enactment though purports to overcome the view indeed statutorily recognized by making provision under the Act not only for the purpose of "maintenance" but as for "provision".
20. This Court in the case of Siddique Ali and Others (supra) after examining in detail the various provisions of the Act and the interpretation given to'' them by the Apex Court in the Danial Latifi''s case rightly came to the conclusion that the making of a reasonable and fair provision is the obligation of the husband alone apart from making payment of maintenance for the period of iddat. If the husband is unable to provide necessary maintenance, the provisions of Section 4 of the Act will come into play. Therefore, so far a former Muslim husband is concerned, his obligation is wider and he must make such provision for his divorced wife within the period of iddat as would take care of her for the rest of her life. This Court held that the husband on divorcing his wife has to make within the period of iddat, a fair and reasonable provision which can take care of her necessities for the rest of her life. This Court further held that a Muslim divorced woman''s former husband is not completely absolved of the responsibility of making "provision" for her beyond the iddat period even if he has already paid to her maintenance for the period of iddat. Paragraph-40 of the said judgment which is relevant is quoted hereunder:
40. What, thus, emerges is that Section 3 entitles a Muslim divorced woman to obtain from her former husband ''maintenance'', ''provision'' and ''Mahr'' and also recover from his possession her wedding presents and dowry. A minute and cautious reading of the provisions, contained in Section 3 of the MW Act, indicate that the MW Act casts two distinct and separate obligations on the husband, namely, (i) to make a "reasonable and fair provision" for his divorced wife; and (ii) to provide "maintenance" for her. The emphasis of this section is not on the nature or duration of any such "provision" or "maintenance", but on the time by which an arrangement for payment of provision and maintenance ought to be concluded, namely "within the iddat period". If the scheme of the MW Act were so read, as the MW Act ought to be read, it becomes transparent, holds the Constitution Bench, in Daniel Latiti''s (supra), that the Act MW would exclude, and does exclude, a man, who has already discharged both his obligations, namely, the obligation of making and paying ''reasonable and fair provision'' and ''maintenance'' by paying these amounts, in a lump sum, to his wife, in addition to having paid his wife''s Mahr and restored her dowry as per Sections 3(1)(c) and 3(1)(d) of the MW Act. Such a man would have no further liability to provide post iddat period maintenance to his divorced wife. Se Daniel Latifi''s case (supra).
Putting the question to itself as is to whether it is permissible for a Magistrate while entertaining an application u/s 3(1)(a) of the Act to direct the Muslim divorced woman''s former husband to give her a lump sum amount of money to enable her to maintain herself and if so under what circumstances and subject to what condition, this Court answered the said question in paragraph 43 of the said judgment as under:
43. What further surfaces from the discussion held above is that a Muslim husband must pay, ''within'' the period of iddat, ''maintenance'' to his: divorced wife for the period of iddat and his liability to provide ''maintenance'' ceases on expiry of the period of iddat. Notwithstanding the fact that the ''maintenance'' shall be paid for the period of iddat, the Muslim husband has the liability to make, ''within'' the period of iddat, a ''reasonable and fair provision'' for his divorced wife. Such ''reasonable and fair provision'' is meant to enable the divorced woman to take care of herself for the rest of her life or until the time she incurs any disability under the MW Act. While deciding as to what shall be a ''reasonable and fair provision'' for such a divorced woman, regard shall be had to the needs of the divorced woman, the standard of life she had been used to during her marriage and, above all, the means of her former husband. If the husband is unable to arrange for such a lump sum amount of money, which he is required to pay to his wife as a ''reasonable and fair provision'', he may be granted installments by the Court, should the Court consider granting of such installments necessary and in the interest of justice. Till the husband makes a ''fair and reasonable provision'', as envisaged under the MW Act, the Magistrate may direct monthly payment to be made to the divorced woman even beyond the period of iddat subject of course, to the fixation of the amount of ''fair and reasonable provision''.
This Court further held that in the light of the authoritative pronouncement in Danial Latifi (supra), it is the legal obligation of the Muslim husband to make reasonable and fair provision for the future of his divorced wife and when a Muslim husband does not make such a provision, there is no impediment on the part of the Magistrate in seisin of an application made u/s 3 of the Act to direct the Muslim husband to make such a provision. This Court clarified that the amount assessed as fair and reasonable provision can be directed to be paid as a one time amount or in installments, such installments may be monthly, half yearly or annually depending on the financial condition of the husband. In the particular facts of that case, this Court noticed that the Court below had directed payment of Rs. 500/- per month as maintenance allowance to the divorced woman though she did not make any claim u/s 3(2) of the Act. This Court further observed that had such a prayer been made, the learned Court below could have been free to fix a reasonable sum of money as a reasonable and fair provision which could have been realized either as one time payment or in installments. Therefore, while interfering with the direction to pay maintenance of Rs. 500/- per month beyond the iddat period, this Court give liberty to the divorced woman to make appropriate application seeking direction to the former husband to make "provision" for her in terms of the Act.
21. I am in full agreement with the view expressed by this Court in Siddique Ali and Others (supra).
22. In view of the legal position as indicated above, I am unable to accept the contention advanced on behalf of the petitioner that no amount could have been directed by the learned Court below to be paid by the petitioner to the opposite party beyond the iddat period. Agreeing with the view of this Court in Siddique Ali''s case, with great respect, I am unable to persuade myself to support the view taken by the Hon''ble Andhra Pradesh High Court in the case of Zamrud Begum (supra) that if there is no settlement of the maintenance claim before the iddat period or during the iddat period, the divorced woman can no longer maintain a claim against her husband the moment the iddat period is over.
23. Coming back to the facts of the present case, I find that the direction to the petitioner to pay to the Opp. Party the amount of deferred dower of Rs. 24,801/- by the learned CJM and which was not challenged before the learned Sessions Judge in revision is fully justified and is hereby affirmed.
24. In her evidence, the opp. party stated that the petitioner neither paid her the amount of deferred dower nor any maintenance during the iddat period. However, she stated that though her husband wanted to pay her for the iddat period, she refused to accept the same as she wanted the payment of deferred dower, maintenance for the iddat period and Rs. 5,000/- per month. She stated in her deposition that the petitioner is a well to do person, having a car and a motor parts shop. From her evidence, it is seen that she is unable to maintain herself. She also gave details of the goods given to her at the time of marriage, which is supported by her other two witnesses. The petitioner in his evidence admitted the marriage and the divorce. According to him, the deferred dower and maintenance for the iddat period was offered to the Opp. Party at the time of divorce but she refused to accept the same. From his evidence, it is seen that the petitioner is now living with his second wife and her minor children.
25. From a perusal of the evidence on record including the evidence pertaining to the financial condition of the petitioner and the Opp. Party, I do not find that the learned Court below acted illegally or improperly in directing the petitioner to pay a sum of Rs. 2000/- per month to the Opp. Party as maintenance for the iddat period. The said direction is hereby affirmed.
26. But no finding has been recorded regarding the entitlement of the Opp. Party to recover the goods claimed by her. It is seen that the Opp. Party has led evidence in this regard, which is supported by the other two witnesses. Therefore, the learned Magistrate was not justified in deciding that point against the Opp. Party and the learned Sessions Judge also did not address the issue. In such matters, the Court is required to take a prima facie view only and pass orders on prima facie satisfaction. It is not necessary for the Court to go into the dispute in minute details. Considering the above, oil this issue, the matter is remanded back to the learned Sessions Judge to pass appropriate orders consistent with the observations made above.
27. Coming to the direction that the petitioner should pay a sum of Rs. 1000/- per month to the Opp. Party till she remarried, considering the discussions made above and also the fact that the learned Court below did not fix any amount as reasonable and fair provision which amount could be realized either as a one time payment or in installments, the above direction to pay Rs. 1000/- per month after the iddat period till she remarried cannot be sustained and is accordingly interfered with. On this point, the matter is remanded back to the learned Sessions Judge, Goal-para to assess and determine the amount of reasonable and fair provision to be paid by the petitioner to the Opp. Party and thereafter to determine whether the said amount should be paid at a time or in installments, which can also be on monthly basis. If the evidence of the petitioner and the Opp. Party are found to be in adequate in this regard, the learned Sessions Judge will take their further evidence. Need less to say, while determining the reasonable and fair provision, the learned Sessions Judge will take into consideration the needs of the Opp. Party, the standard of life that she was used to during her marriage with the petitioner and the means of the petitioner. The learned Sessions Judge will pass the order on remand as expeditiously as possible. With the above observations and directions the revision petition stands disposed of. The interim order passed by this Court on 29.7.2011 stands vacated and the impugned judgment and order dated 732011 passed by the learned Sessions Judge, Goal-para in CM Case No. 47/2010 stands modified to the extent indicated above.
Registry to send back the LCR immediately.
