Chelangodan Ali and Others vs Cherungan Sufaira

K. Sreedharan J.

These Criminal Revision Petitions arise out of proceedings initiated under the Muslim Women (Protection of Rights on Divorce) Act, 1986, hereinafter referred to as the ''the Act''. Crl R. P. 222/87 is filed by a former husband challenging the order directing him to pay maintenance during the period of iddat and a further sum as reasonable and fair compensation to the divorced lady. Crl R. P. Nos. 90/88 and 150/88 arise out of one and the same proceeding. The divorced woman filed a petition before the learned Magistrate u/s 3 of the Act claiming a sum of Rs. 300,000/- towards reasonable and a fair provision for her life, Rs. 22,500/-'' towards maintenance for the period of iddat, Rs. 11,500/-towards the cost of five sovereigns due to her as mahr and for the return of properties mentioned in the schedule which were taken by the former husband or to pay its value amounting to Rs. 15,00,000/-. The learned Magistrate directed the former husband to pay Rs. 22,500/- by way of "reasonable and fair provision and maintenance" to be paid u/s 3(1) (a) of the Act and Rs. 451/- by way of mahr. The divorced lady challenges that order in R.P. 90/88 while the former husband has preferred Crl R. P. 150/1988. Crl R.P. 197/88 is at the instance of another former husband. He challenges the order passed by the learned Magistrate directing him to pay a sum of Rs. 1500/- as maintenance for the period of three months for observing iddat and Rs. 2,500/- as fair and reasonable compensation, both u/s 3(1)(a) of the Act, a sum of Rs. 3,600/- for the maintenance of the child for two years u/s 3(1) (b) of the Act, Rs. 1500/- as mahr u/s 3(1) (c) and a sum of Rs. 3000/- u/s 3 (1) (d) of the Act. These Criminal Revision Petitions, though arise out of three different proceedings, are dealt with in this common order because same questions-arise for consideration. The most important aspect that arises for consideration is regarding the extent of the liability case on a muslim husband at the time of divorce. In Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, the main argument raised on behalf of the ex-husband was whether the payment of maintenance upto the ''period of iddat plus payment of mahr contracted for, would conclude all responsibilities of the husband under the personal law which is referred to in Section 127 of the Code of Criminal Procedure. The court then went into the question whether the muslim personal law imposes no obligation upon the husband to provide for the maintenance of his divorced wife. The court took the view that the statements contained in the textbooks on Muslim personal Law are inadequate to establish the proposition that the muslim husband is not under an obligation to provide for the maintenance of his divorced wife who is unable to maintain herself. Consequent on the said decision there arose a situation which necessitated the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Section 3(1) of the Act enumerated the various rights to which a muslim woman is entitled to at the time of divorce. It reads;

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 there-after 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.

Sub-clause (a) provides that a muslim woman who has been divorced is entitled to "a reasonable and fair provision and maintenance" to be made and paid to her within the iddat period by her former husband. The argument advanced by the learned Counsel representing the former husbands is that they need pay maintenance to the lady only for the period of iddat, that they are not to make any "reasonable and fair provision" for that lady. The argument is that their liability under the Act ceases by paying maintenance for the period of iddat. In other words the argument is that ''provision'' and ''maintenance'' used in the above clause connote the same; that is maintenance pure and simple. In support of this argument the learned Counsel relies on the observation made by Their Lordships in paragraph 15 of the judgment in Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, that the distinction between the words ''provision'' and ''maintenance'' is without any difference. Hence it is necessary to understand the true scope and effect of those words used in Section-3 of the Act.

It is well settled that the foremost task of a Court in the interpretation of statutes is to find out the intention of the legislature. Where the words are clear and unambiguous no question of contradiction may arise. It may safely be presumed that the legislature intended what the words plainly say. Even where the words of the statutes appear to be prima facie clear and unambiguous it may some-times be possible that the plain meaning of the words may not convey the intention of the legislature. The court should find out the intention of the legislature. The intention may be gathered from several sources. The first source from which it can be gathered is the statute itself. Then comes the preamble to the statute. The statement of objects and reasons for the legislation may also throw considerable light in finding out the intention. After ascertaining the intention of the legislature the court is duty bound to give the statute a purposeful or functional interpretation. The court must strive to interpret the statute as to promote and advance the object and purpose of the enactment.

The reason for a statute can be discovered from external and internal aids. External aids are statement of objects and reasons when the bid is presented to the Parliament, the reports of Committees which preceded the bill, reports of Parliamentary Committees etc. Internal aids are the preamble, the scheme and the provisions of the Act. Preamble of the Act 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"

From this preamble it is evident that the legislature wanted to protect the rights of divorced muslim women. Those ladies are to be well protected. They are not to be left as destitute. Vagrancy is to be prevented.

The objects and reasons of the enactment as published in the Gazette of India Extra-ordinary, Part II, Section 2 dated 25-2-1986, inter-alia reads:

This decision ( Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, ) has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights which a Muslim divorced, woman is entitled to at the time of divorce and to protect her interests. The Bill accordingly provides for the following among other things, namely:-

(a) a muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period of iddat by her former husband in case she maintains the children born to her before or after her divorce, such reasonable'' provision and maintenance would be extended to a period of two years from the dates of birth of the children. She will also be entitled to mahr or dower and all the properties given to her by her relatives, friends, husband and the husband''s relatives. If the above benefits are not given to her at the time of divorce, she is entitled to apply to the Magistrate for an order directing her former husband to provide for such maintenance, the payment of mahr or dower or the delivery of the properties;

(b) where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim law in the proportions in which they would inherit her property. If any one of such relatives is unable to pay, his or her share on the ground of his or her not having the means to pay, the Magistrate '' would direct the other relatives who have sufficient means to pay the shares of these relatives also. But where a divorced woman has no relatives or such relatives or any one of them has not enough means to pay the maintenance or the other relatives who have been asked to pay the shares of the defaulting relatives also do not have the means to pay the shares of the defaulting relatives the Magistrate would order the State Wakf Board to pay the maintenance ordered by him or the shares of the relatives who are unable to pay.

The said objects and reasons also state in unmistakable terms that the purpose of the enactment is to protect the interests of divorced muslim women. The divorced muslim women are thus entitled to a reasonable and fair provision and maintenance. According to the learned Counsel appearing for the former husbands, the words ''provision'' and ''maintenance'' mean one and the same thing. So, Section 3 (I) (a) of the Act provides'' only for the payment of maintenance within the period of iddat. If this argument is accepted the said sub clause could have been worded, ''maintenance to be paid to her within the iddat period by her former husband''. The words a reasonable and fair provision and'' appearing at the beginning of the sub clause (a) and ''made and'' appearing after the words ''maintenance to be'' would become redundant.

In interpreting a provision in a statute it is important to remember that the Parliament does not waste its breath un-necessarily. The Parliament is not expected to use un-necessary expressions. The courts are duty bound to examine and give meaning to every word of the statute in its context. In other words the statutes have to be construed so that every word has a place and everything is in its place. A statute should be construed in such a manner that no sentence or word should become superfluous or insignificant-No word should be rejected as un-meaningful if it will not result in absurdity. We cannot assume a mistake in an Act of Parliament Legislature is deemed not to waste its words or to say anything in vain. The presumption is always against superfluity in a statute. So the attempt should be to give meanings to all words used in the clause. The Parliament must be taken to have decided to provide the divorced woman with maintenance for the period of iddat and also a reasonable and fair provision for her. Both these should be paid and made to her during the iddat. (Vide Girdhari Lal and Sons Vs. Balbir Nath Mathur and Others, ; Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. and Others, ; Uikal Contractor & Joinery Pvt. Lid and Ors Vs. State of Orissa and Others AIR-1987 SC 1454.)

As per the provision referred to earlier the former husband is to make a reasonable and fair provision and to pay maintenance to the divorced woman. Mulla in the Principles of Mahomedan Law, 18th Edition, Paragraph 279 states:

After divorce, the wife is entitled to maintenance during the period of iddat. If the divorce is not communicated to her until after the expiry of that period, she is entitled to maintenance until she is informed of the divorce.

As commentary to this Section it is stated therein:

Where an order is made for the maintenance of the wife under Sec. 488 of the Criminal Procedure Code and the wife is afterwards divorced, the order ceases to operate on the expiration of the period of iddat. The result is that a Mahomedan may defeat an order made against him under Sec. 488 by divorcing his wife immediately after the order is made. His Obligation to maintain his wife will cease in that case on the completion of her iddat."

Thus it would appear that a divorced muslim woman is entitled to maintenance from her former husband only for the period of iddat. This liability of the former husband is undisputed. The Quran also enjoins the former husband to discharge this obligation. In Shah Bano''s case the Supreme Court extended this obligation in the case of divorced ladies who are unable to maintain themselves till her death or remarriage. The Parliament by this Act wanted to save the former husbands from that burden. But the Act now states that they must pay maintenance for the period of iddat and also should make a reasonable and fair provision for her. This ''provision'' should be for the future of the lady. Even after the provision having been made by the former husband, if the lady becomes unable to maintain herself then a situation envisaged by Sec. 4 of the Act will come into operation. According to me Sec. 4 of the Act does not absolve the former husband from making a "reasonable and fair provision" for the lady''s life.

If the Parliament intended to recognise the liability of a former husband as those stated by Mulla in the above quoted passage only the same could have been provided in sub-clause (a) of clause (1) of Section 3 of the Act by using fewer words. Instead of that, the Parliament wanted the husband to make ''a reasonable and fair provision'' for the divorced muslim woman''s future as well. As per Webster''s Third New International Dictionary the word ''provision'' means:

a gift by will or deed to one as heir who would "not be heir otherwise." ''

The word ''provision'' came up for judicial interpretation before the Supreme Court in Metal Box Company of India Ltd. Vs. Their Workmen, . Their Lordships stated:

an amount set aside out of profits and other surpluses not designed to meet a liability, contingency, commitment or diminution in value of assets known to exist at the date of the balance sheet is reserve but an amount set aside out of profits and other surpluses to provide for any known liability of which the amount cannot be determined with substantial accuracy is a provision."

Thus the word ''provision'' means an amount set apart towards a known liability, the amount which cannot be determined with accuracy. The known liability of a husband is to provide for the future of the divorced muslim woman. He will not be in a position to determine the amount with substantial accuracy. It is for that purpose he has to make provision.

That provision in my view will be entirely different from the maintenance due to the divorced muslim woman for the period of iddat. The word ''maintenance'' as per Webster''s Third New International Dictionary means:

the act of providing means of support for someone; means of sustenance; designed or adequate to maintain a living body in a stable condition without providing reserves for growth, functional change, or healing effect."

This is entirely different from "provision"

The above view is supported by the Quran as well. Translation and Commentary on the Holy Quran by Abdulla Usaf Ali in Ayat No 236 states:

There is no blame on you

If ye divorce women

Before consummation

Or the fixation of their dower,

But bestow on them (A suitable gift),

The wealthy

According to his means,

And the poor

According to his means;

A gift of a reasonable amount

Is due from those

Who wish to do the right thing.

Ayat 237 states :

And if ye divorce them

Before consummation,

But after the fixation

Of a dower for them,

Then the half of the dower

(Is due to them), unless

They remit it

. Or (the man''s half) is remitted

By him in whose hands Is the marriage tie;

And the remission

(Of the man''s half)

Is the nearest to righteousness

And do not forget

Liberality between yourselves.

For God sees well

All that ye do.

From this, it is clear that the muslim husband who divorced the lady must be very liberal to the woman and should give her substantially for her future.

Ayat 241 states :

"For divorced woman

Maintenance (should be provided)

On a reasonable (scale).

this is a duty

On the righteous.

Ayat 242 provides :

Thus doth God

Make clear His Signs

To you; in order that

Ye may understand.

From this it is clear that the Muslim who believes in God must give a reasonable amount by way of gift or maintenance to the divorced lady. That gift or maintenance is not limited to the period of iddat. It is for her future livelihood because-God wishes to see all well. The gift is to depend on the capacity of the husband. The gift, to be paid by the husband at the time of divorce, as commanded by the Quran, is recognised in sub clause(a) of Clause (1) of Section 3, of the Act. This liability is cast upon the husband on account of the past advantage received by him by reason of the relation-ship with the divorced woman or on account of the past disadvantage suffered by her by reason of matrimonial consortium. It is in the nature of a compensatory gift or a solatium to sustain the woman for her life after the divorce. In accordance with the principles of Islamic equity the said provision or compensation or support from the former husband is wife''s right. This right has been given legislative recognition in the above provision. So, I find it difficult to accept the argument that the only liability of the former husband is to pay maintenance to the divorce muslim woman during the period of iddat only.

Learned Counsel appearing for the petitioners in Crl R.P. Nos. 222/87 and 150/88 raised an argument that the learned Magistrate has no power to order anything more than maintenance for the period of iddat, relying on clause (4) of Section. 3 of the Act. As per clause (4) if the former husband fails to comply with the order passed by the Magistrate,'' he can be sentenced to imprisonment and the Magistrate can issue warrant for levying the amount of maintenance or mahr or dower. Except for realisation of these amounts no coercive step is contemplated by the said clause. According to counsel, if the Magistrate was entitled to order anything more than maintenance, Mahr or dower, the court should have been invested with authority to realise that amount as well. In the absence of such a power, according to counsel'' it must be taken that the court has no jurisdiction to direct a former husband to make a reasonable and fair provision for the future of a divorced muslim woman. I do not find it possible to agree with this argument. A divorced muslim woman has got the right to approach the Magistrate for an order directing her former husband to return 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-The Magistrate is duty bound to adjudicate on that claim. The order directing former husband to return those properties has to be made by the Magistrate in case he comes to the conclusion that the former husband is retaining possession of those properties. No provision is made in clause (4) of Section 3 of the Act for executing that part of the order either. That does not mean that the Magistrate is not to adjudicate on the claim coming u/s 3 (1) (d) of the Act. Similarly the Magistrate has to direct former husband to make a reasonable and fair provision for the future of the divorced muslim woman.

Yet another argument advanced by the learned Counsel appearing for the former husbands in the above cases is that the words ''provision and maintenance'' must be read disjunctively. In support of this argument they relied on the decision in M. Satyanarayana Vs. State of Karnataka and Another, : M. Satyanarayana Vs. State of Karnataka and Another, . In this case their Lordships observed:

The expression ''and'' has generally a cumulative effect, requiring the fulfillment of all the conditions that it joins together and it is the antithesis of ''or'' "

This observation, I am afraid, goes against the argument advanced by the learned Counsel. The words appearing on either side of the word ''and'' must be taken to have been joined together by it. Those words must be taken to represent two different categories. If those two words stand for two different objects and they are joined together, then the word ''provision'' must mean something other than ''maintenance''. Viewed in that manner it is evident that a divorced muslim woman is entitled not only to maintenance for the period of iddat but also to a reasonable and fair provision for her future livelihood, from her former husband. By the Act the former husband is freed from the liability to maintain the divorced woman who is unable to maintain herself for the rest of her life or re-marriage. But he must make a reasonable and fair provision for the future of the lady over and above the maintenance to be paid for the period of iddat.

In view of what has been stated above, I hold that u/s 3 (1) (a) of the Act a divorced muslim woman is not only entitled to maintenance for the period of iddat from the former husband but also to a reasonable and fair provision for her future. The Magistrate should pass orders giving effect to this intention of the Legislature.

The learned Chief Judicial Magistrate, Calicut, has failed to adjudicate on the rights of the divorced woman under sub Clause (a) and (d) of Clause (I) of Section 3 of the Act in M. C. 42/1987. Therefore, I set aside the order of the court below, which is under challenge in Criminal Revision Petitions Nos. 90/1988 and 150/ 1988. M. C 42/ 1987 will be taken back to file and disposed of in accordance with law and in the light of what is stated herein before, after affording the parties an opportunity to let in all their evidence.

13 In Crl R P. 222/87 the former husband challenges the order awarding maintenance and reasonable and fair provision to the divorced woman That order is strictly in compliance with the provisions contained in the Act and it calls for no interference. Accordingly R. P. 222/1987 is dismissed.

In Criminal R P. 197/88 the former husband challenges the order awarding maintenance to the divorced lady for the period of iddat. According to Sri P. C. Mohsin, learned Counsel representing the former husband, the order can provide only for a reasonable and fair provision for the future of the lady and not maintenance even for the period of iddat. The court below awarded Rs. 1500/- towards maintenance for the period of iddat and Rs. 2,500/- as reasonable and fair compensation. According to Counsel, no muslim lady is entitled to claim past maintenance. The period of iddat expired long prior to the initiation of the proceedings before the court. So the learned Magistrate should not have awarded any amount towards maintenance. I find no merit in this contention. As per Section 3((sic)) (a) of the Act, maintenance is to be paid within the period of iddat by the former husband. On his failure the wife can approach the Magistrate. So the petition to the court can ordinarily be filed subsequent to the expiry of the period of iddat. Her claim cannot be defeated on the ground that it relates to the past maintenance since the period of iddat has expired. Thus I find no merit in this contention. Since I have already found that the former husband is liable to pay maintenance for the period of iddat as also to make a reasonable and fair provision for her future livelihood, the order passed by the learned Magistrate is proper. The learned Magistrate directed the former husband to pay Rs. 3600/- u/s 3(1) (b), Rs. 1500/- under Section, 3 (1) (c) and Rs. 3000/- u/s 3 (1) (d) of the Act. In the facts and circumstances of the case the said order cannot be said to be illegal, improper or erroneous. Hence, I find no ground to interfere with the same. The result, therefore is, Crl R.P. Nos. 222/87 and 197/88 are dismissed. The order challenged in Crl R.P. Nos. 90/88 and 150/88 is set aside and the matter remanded back to the court below for fresh disposal, in accordance with law and in the light of observations made earlier in this order.