Haja Mohammed vs Moimoon

Somasundaram, J.—This appeal is filed by the husband against the order of the Family Court, Madras in M.C.No.297 of 1988 passed

under S.125, Code of Criminal Procedure, hereinafter called the Code, directing the appellant to pay maintenance to the respondent at the rate of

Rs. 500/- per month with effect from 2.3.1987. The respondent herein filed the petition M.C.No.297 of 1988 against the appellant under S.125

claiming maintenance and the case of the respondent is as follows:

The appellant married the respondent on 21.5.1984 according to Islamic rites and thereafter they lived together at Madras upto February,

1985. Though sufficient money and articles were paid to the appellant he was not satisfied with them and he insisted upon the respondent to bring

Rs. 20,000/- from her mother''s house. She could not bring the same and thereafter the respondent was driven out of the house in February, 1985.

During her absence the respondent lived with one Rohini. After February, 1985 the appellant neglected and refused to maintain the respondent.

The respondent has no income of her own and she is unable to maintain herself. The appellant is working as a conductor in Pallavan Transport

Corporation and earning Rs. 1000/- per month and he gets about Rs. 5,000/- per month as a film actor.

The appellant filed a counter admitting his marriage with the respondent. His main defence is that he has pronounced Talak three times and

dissolved the marriage; that he also sent the mahar amount of Rs. 201/- to the respondent and in view of the Muslim Women (Protection of Rights

and Divorce) Act 25 of 1986, hereinafter called the Act, the respondent is not entitled to claim any maintenance from him.

The Family Court, on a consideration of the entire evidence on record, found that in February, 1987 the appellant dissolved his marriage with

the respondent by pronouncing Talak thrice. However, the Family Court came to the conclusion under the provisions of the Act, even after

divorce, a former husband is liable to make a fair and reasonable provision and maintenance to the divorced wife. The Family court held that the

respondent is entitled to receive a reasonable and fair maintenance from the appellant and directed the appellant to pay a sum of Rs. 500/- per

month towards her maintenance with effect from 2.3.1987. Aggrieved by the said order of the Family Court the appellant has preferred the present

appeal.

Mr. M. Karpagavinayagam, learned Counsel for the appellant contended that the marriage between the appellant and the respondent took place

on 21.5.1984. On 24.2.1987 the appellant divorced the respondent by pronouncing Talak in the manner known to law. The respondent filed the

petition claiming maintenance under S.125 of the Code on 2.3.1987 the Act came into force with effect from 19.5.1986, after the Act came into

force the petition for maintenance under S.125 of the Code is not maintainable and that in any event the application filed before the Family Court

must be considered as one under S.3(1) of the Act. The learned Counsel for the appellant further contended that the family Court has found that

the appellant has divorced the respondent by pronouncing Talak thrice. According to S.3(1) of the Act a divorced woman shall be entitled to a

reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband and that the various

provisions of the Act go to show that the former husband is not liable to pay maintenance to the divorced woman beyond the period of iddat, and

therefore, the order of the Family Court granting future maintenance to the respondent is illegal and liable to be set aside.

On the other hand, Mr. Suryaprakasam, learned Counsel for the respondent contended that the finding of the Family Court that the appellant

divorced the respondent by pronouncing Talak thrice is not passed on acceptable evidence and, therefore, the said finding is liable to be set aside.

The learned counsel for the respondent further contended that even assuming that the appellant divorced the respondent, under S.3(1)(a) of the

Act, the respondent, even as a divorced woman, is entitled to claim reasonable and fair provision and maintenance from the appellant, not only for

the period of iddat but also for the future and, therefore, the order of the Family Court directing the appellant to pay future maintenance to the

respondent is legal. The learned counsel for the respondent also contended that even according to the appellant, the divorce took place on

24.2.1987 and he sent the iddat amount only on 27.10.1987, eight months after the alleged date of divorce and as the iddat amount was not sent

within the period of iddat, the condition prescribed in S.3(1)(a) of the Act not having been complied with, the appellant is not entitled to claim the

benefit of the Act.

In view of the above contentions of the counsel for the parties the following points arise for consideration in this appeal.

1) Whether the appellant divorced the respondent by pronouncing Talak?

2) Whether even after the divorce the respondent is entitled to claim future maintenance from the appellant under S.125 of the Code?

Point No. 1: The case of the appellant is that he pronounced Talaq and dissolved the marriage and, therefore, he is not liable to pay maintenance

to the respondent in view of the provisions of the Act. In B.R. Verma''s Islamic Law, 6th edition, the law on the question how Talaq is pronounced

is stated at page 216 in the following terms.

Talaq how pronounced:

(1) A Talaq may be effected by words expressed either orally or in writing or by signs where the husband is unable to do so.

(2) An oral Talaq becomes effective.

(a) in the words used are Express or clearly show in intention to divorce; or

(b) where the words used are not express, if it is proved that there was an Intention to effect a divorce.

(3) A talaq in writing becomes effective.

(a) If the writing as in the Customary form, showing the name of the writer and the addressee; or

(b) If it is proved that there was an intention to effect a divorce

It is not necessary that a Talaq should be pronounced in the presence of the wife or should be addressed to her.

(5) A Talaq may be pronounced conditionally or so as to take effect immediately or at a future time or on the happening of any contingency.

The appellant in his evidence as R.W.1 has stated that consequent to the report given by the respondent against him before the anti-dowry cell, he

was arrested by the police on 3.2.1987; that the police investigated into the case and filed a charge sheet against him, and, therefore, he decided to

dissolve the marriage by pronouncing Talaq three times. He has further stated in his evidence that on 24.2.1987 he sent the letter, Ex.p.3, by

registered post to the respondent informing her that he has dissolved the marriage by pronouncing talaq thrice; that he sent Rs. 201/- for the mahar

amount by money order as under Ex.D.5 that the copies of the letter, Ex.P.3 were also sent to Pichaikani Rowther, Vanagaram Jamath President

and Vasudevanallur Jamath President as marked as Ex.D.6 that the respondent refused to receive the money order and, therefore, it came to him

as indicated in Ex.D.7; that on 1.3.1987 he went to Vanagaram Jamath and informed about the divorce and Ex.D.8 is the letter given by the said

Jamath President. R.W.1 has further stated in his evidence that after the filing of the maintenance case he sent a draft for Rs. 1,401/- to the

respondent with a covering letter the copy of which is marked as Ex.D.9. The said draft and the covering letter sent by registered post were

received by the respondent as evidenced by Ex.D.1. From the evidence of R.W.1 and Exs.D.9 and D.10 it is clear that the appellant has sent the

mahar amount and the maintenance for the period of iddat to the petitioner. The respondent herself has produced the letter, Ex.P.3 No doubt, the

letter Ex.P.3 is not signed by the appellant. However, as the respondent herself has produced the letter Ex.P.3, we can safely hold that the

pronouncement of talaq by the appellant has been duly communicated to the respondent. The fact that Ex.P.3 does not contain the signature of the

appellant will not in any way affect that evidentiary value of Ex.P.3 particularly when Ex.P.3 contains the name and address of the author of Ex.P.3

and the addressee. Moreover, the respondent as P.W.1 in her evidence has admitted that she has stated in her evidence in C.C.No.5597 of 1987

on the file of the Additional Chief Metropolitan Magistrate, Madras that she received the letter dated (sic) 24.2.1987 informing her that the first

accused in that case has divorced her and that her above version related to Ex.P.3. It is in evidence that the mahar amount of Rs. 210/- sent by

money order was returned to the appellant as the respondent did not receive the same. Therefore, after the filing of the maintenance case a draft

for Rs. 1,401/- was sent by the appellant in the envelope, Ex.P.2. P.W.1 in her evidence says that she opened the letter and handed over the draft

and the covering letter to her counsel, who in turn, sent them back to the appellant but as the appellant refused to receive the same, the envelope

came back to P.W.1. The evidence in this case also discloses that though R.W.1 made the necessary efforts to send the mahar amount and the

maintenance for the period of iddat the respondent has not so far encashed the draft. In those circumstances, on the basis of the evidence on

record the family Court rightly held that on 24.2.1987 the appellant divorced the respondent by pronouncing Talaq thrice.

Point No. 2: The next question we have to examine, is, whether the appellant is liable to pay future maintenance to the respondent even after

divorce under S.3(1) (a) of the Act. Before referring to the relevant provisions of the Act, it is necessary to see the circumstances under which the

Act came to be passed and the Objects and Reasons for enacting the same. The Objects and Reasons for enacting the Act are as under:

The Supreme Court, in Mhd. Ahmed Khan v. Shah Bano Beguml, has held that although the Muslim Law Limits the husband''s liability to provide

for maintenance of the the divorced wife to the period of iddat, it does not contemplate or countenance the situation envisaged by S.125 of the

Cr.P.C., 1973. The Court held that it would be incorrect and unjust to extend the above principle of Muslim law to cases in which the divorced

wife is unable to maintain herself. The Court, therefore, came to the conclusion that if the divorce wife is able to maintain herself, the husband''s

liability ceases with the expiration of the period of iddat, but if she is finable to maintain herself after the period of iddat, she is entitled to have

recourse to S.125 of the Criminal P.C.

This decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to 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.

A reading of the Statement makes it clear that the Legislature took the opportunity arising out of the decision of the Supreme Court in Mohd.

Ahmed Khan Vs. Shah Bano Begum and Others, , to specify the rights a Muslim divorced woman would be entitled to at the time of divorce and

to protect her interest.

The relevant portion of S.3 of the Act reads thus:

(1) Not withstanding 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 mahar 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.

(g) Where a reasonable and fair provision and maintenance of the amount of mahar or dower due has not been made or paid or the properties

referred to in Clause (d) of sub-s.(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, mahar or dower or the delivery of

properties, as the case may be.

(3) Where an application has been made under sub-S.(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 mahar or dower has not been paid or that the properties referred to in clause(d) of sub-S.(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 mahar or dower or the delivery of such properties referred to in clause (d) of sub-S.(1) to the divorced woman;

Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by

him, dispose of the application after the said period.

S.3(1) of the Act begins with non-obstante clause and provides that a divorced woman shall be entitled to a reasonable and fair provision and

maintenance to be made and paid to her within the iddat period by her former husband. Clause (c) of S.3(1) lays down that a divorced woman is

entitled to an amount equal to the sum of mahar or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to

Muslim Law. Clause (d) of S.3(1) gives a right to a divorced woman to claim 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. S.(2) of the Act gives a right to a

divorced woman to file an application before the Magistrate when her former husband fails to make or pay a reasonable and fair provision and

maintenance or the amounts or mahar or dower due and when he fails to deliver the properties referred to in Clause (d) of Sub-S.(1) on her

divorce for an order for payment of such provision and maintenance, mahar or dower or the delivery of the properties as the case may be. S.4

imposes an obligation on the relatives of the divorced woman or the Wakf Board as the case may be to pay maintenance to the divorced woman if

she is not remarried and is not able to maintain herself after the iddat period.

A close and careful reading of Ss.3 and 4 as well as Ss.5 and 7 of the Act would give us a clear picture of the rights of a divorced woman. As

already pointed out, S.3(1) (a) provides that a divorced woman 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. It is specifically stated in S.3(1)(a) of the Act that a reasonable and fair provision and

maintenance shall be paid to the divorced woman by her former husband and within the iddat period. The word ""within"" in S.3(1)(a) clearly means

that the liability of the husband is to provide maintenance to his divorced wife within the period of iddat and for the period of iddat and not beyond

the period of iddat. There is nothing in the language of S.3(1) (a) which warrants the interpretation that the liability of the husband to pay

maintenance to his divorced wife extends beyond the period of iddat. It must be remembered that the Act itself was passed to remove the

difficulties which have arisen as a result of the decision of the Supreme Court in Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, To hold

that S.3(1) (a) imposes an obligation on the part of the husband to provide fair and reasonable maintenance to his divorced wife beyond the period

of iddat also would result in defeating the very purpose for which the Act has been enacted. Only S. 4 deals with payment of maintenance to a

divorced woman who has not remarried and is not able to maintain herself after the period of iddat. S.4 imposes an obligation only on the relatives

of the divorced women or the Wakf Board as the case may be to pay maintenance to the divorced woman after the period of iddat, if she is not

remarried or is not able to maintain herself after the iddat period. S.4 does not impose an obligation on the husband of the divorced woman after

the iddat period. Therefore, S.4 also goes to show that the former husband is not liable to pay maintenance to the divorced woman after the iddat

period. S.5 of the Act gives an option to the parties to be governed by the provisions of Ss.125 to 128 of the Code if on the date of the first

hearing of the application under sub-S.(2) of S.3, a divorced woman and her former husband declares by an affidavit or any other declaration in

writing either jointly or separately that they would prefer to be governed by the provisions of Ss.125 to 128 of the Code. S.7, a transitional

provision provides that every application by a divorced woman under S.125 or under S.127 of the Code, pending before the Magistrate on the

commencement of the Act, shall notwithstanding anything contained in the Code and subject to the provisions of S.5 of the Act, be disposed of by

the Magistrate in accordance with the provisions of the Act. A combined reading of Ss.3 to 7 of the Act goes to show that the object of the Act is

to bring the law of maintenance payable to a divorced woman in consonance with the principles of Muslim law and that Ss.125 to 128 of he Code

are not applicable to the case of a divorced woman after coming into force of the Act, except in case of option exercised by the parties under S.5

of the Act. The above discussion leads us to the conclusion that the liability of a husband to pay maintenance to his divorced wife under S.3(1)(a)

of the Act is limited for and during the period of iddat and that a divorced wife cannot claim future maintenance from her former husband under

S.125 of the Code.

In Usman Khan Bahamani Vs. Fathimunnisa Begum and others, a Full Bench of the Andhra Pradsh High Court dealing with identical position

whether the liability of the husband under S.3(1) of the Act to pay maintenance to his divorced wile extends beyond the period of iddat, observed

as follows:

A close perusal of S.3 (1)(a) shows that a divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be made and

paid to her within the iddat period by former husband. This Full Bench has to address itself to the meaning and purport of Cl.(a) of sub-S.(1) of

S.3 to find out what is the exact meaning to be attributed to this Section. It is clearly stated that a divorced Muslim woman shall be entitled to a

reasonable and fair provision and maintenance within the iddat period to be made and paid by her former husband. It is also equally clear that the

reasonable and fair provision and maintenance has to be made and paid by the husband within the period of iddat'' which has been defined under

S.8(b) of the Act, there is nothing in the Section which can be read to mean that the husband is liable to make reasonable and fair provision and

maintenance beyond the period of Iddat. The would ""within"" indicates two things that the liability of the husband to make a reasonable and fair

provision and maintenance is limited to the period of Iddat only and it is already seen in the statement of Objects and Reasons that the principle of

Muslim Law limits the husband''s liability to provide maintenance to the divorced wife for the period of Iddat only. Even in the case of Shah Banu,

it is recognised that a Muslim woman is entitled to maintenance under the Muslim law only during the period of Iddat. However, it is held that if she

is unable to maintain herself then the liability of the husband to pay maintenance arises under S.125 of the Code. Therefore, inherent in the decision

of the Supreme Court is the recognition of the principle that while maintenance during the period of Iddat is to be paid under the Muslim law,

maintenance beyond the period of Iddat is envisaged only under S.125 of the Code. Therefore, the word ''within'' occurring in S.3(1) clearly

means that there is an obligation on the part of the husband to provide fair and reasonable maintenance to his divorced wife within the period of

Iddat and for the period of Iddat only. It is also clear that the liability of the husband cannot be extended beyond the period of Iddat to make any

reasonable and fair provision or to pay maintenance beyond the period of Iddat of his divorced wife. Much has been said to which reference is to

be made later about the use of the word within rather than ""for"" which has been employed in S.3(1)(a). We are clearly of the opinion that the use

of the word within does not permit an interpretation to be put to the Section that the liability to the husband to make a reasonable and fair provision

and maintenance to his divorced wife extends beyond the period of Iddat. The intention of the legislature os manifestly clear that it envisages the

making of reasonable and fair provision and payment of maintenance to the divorced wife commensurate with the period of Iddat to be paid within

the period of Iddat. To take a contrary view would result in complete negation of the principles envisaged under S.3(1)(a) of the Act of 1986 and

defeat the very purpose for which the Act of 1986 has been enacted"". Therefore, in view of the force going, it is held that a divorced Muslim

woman cannot claim maintenance under S.125 of the Code from her former husband after passing of the Act of 1986.

XX XX XX

The cardinal principle which S.3 weeks to lay down is that the liability of the husband to make a fair and reasonable provision and pay maintenance

is confined to the duration of Iddat only.

A similar view was taken by a Division Bench of the Rajsthan High Court in Abid Ali v. Mst. Raisa Begum 1988 1 Raj L.R. 104 by the Kerala

High Court in A. Abdul Gafoor Kunju Vs. Avva Ummal Pathumma Beevi and Another, , Kerala by the Patna High Court in Md. Yonus v. Bibi

Phenkani @ Pasrunnissa 1987 II Crimes 241 and by the Orissa High Court in Bizwana Begun v. Mottallah 1989 Cri.L.J. 155 (Orissa.). We find

ourselves in agreement with the ratio of the five decisions referred above. In view of our discussion with regard to the provisions of the Act we are

unable to agree with the contrary view taken by a single Judge of the Gujarat High Court in Arab Ahemadhia Abdulla and etc. Vs. Arab Bail

Mohmuna Saiyadbhai and Others etc., and by the Punjab and Haryana High Court in Hazrun v. Abdul Rahman 1988 Cri.L.J. 1519 (P&H).

In view of the above discussion we have to hold that the appellant is not liable to pay maintenance to the respondent even after divorce and the

reasons given by the Family Court for holding that the appellant is liable to pay maintenance to former wife even after divorce are clearly erroneous

and, therefore the order of the Family Court is liable to set aside. Accordingly, the appeal is allowed, the order of the Family Court is set aside and

the petition M.C. No. 297 of 1988 is dismissed. No Costs.