Hasenara Begum vs Fazar Ali

By this petition u/s 397/401 of the Criminal Procedure Code, the petitioner assailed the impugned order dated 31.1.1998 passed by the learned Session Judge, West Tripura, Agartala in Criminal Revision No. 28(4) 1996 filed by the respondent herein against the order dated 7.8.1996 passed by the learned Judicial Magistrate, 1st Class, Sonamura. West Triprua, in Misc. Case No. 30 of 1995.

The petitioner being the married wife of the respondent filed a maintenance petition u/s 125 Cr.P.C. before the learned Judicial Magistrate, 1st Class, Sonamura, West Triprua in Misc. Case No. 30 of 1995. The husband respondent contested the maintenance petition contending, inter alia, that during the pendency of the case the husband respondent divorced the wife petitioner and, as such, in view of the related provision of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the maintenance petition u/s 125 Cr.P.C. Is not maintainable. The learned Magistrate held that the petitioner being a divorced wife of the respondent was entitled a maintenance of Rs. 3,000 only for the Iddat period and also Rs. 7500 as Moharana (Dower). Aggrieved the husband preferred Criminal Revision before the learned Session Judge, and the learned Session Judge vide order dated 31.1.1998 dismissed the revision. During the revision the present petitioner (wife) laid her claim to be paid reasonable and fair "provision" and "maintenance" to be paid by her husband for her whole life but not for within Iddat period. But the learned Session Judge, rejected the claim as she did not prefer revision against the order of the learned trial Court. Hence, this present revision.

Though the petition is drafted and styled to be criminal revision u/s 397/407 Cr.P.C. before the commencement of the hearing, the learned counsel for the petitioner humbly approached the Court to treat the petition to be one u/s 482 Cr.P.C. In order to secure ends of justice on the ground that this petition involves substantial question of law relating to the interpretation of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. (hereinafter called "the Act of 1986").

I have heard the learned counsel of both the parties and perused the petition filed by the divorced wife - petitioner and on perusal of the petition and the related provisions of the Act, 1986, I am convinced to exercise inherent power u/s 482 coupled with the provision of Section 483 Cr.P.C. to resolve the question of law posed before me in this petition.

By this petition the petitioner claims that she being the divorced muslim woman has the right to be allowed the reasonable provision and maintenance from her former husband, the respondent, for her whole life or till her re-marriage but that must be paid within iddat period. But the learned Courts below allowed her the maintenance for iddat period.

The main question posed to be resolved is whether in view of Section 3 of the Act, 1986, the former husband is under statutory obligation to make reasonable and fair "provision" and "maintenance" to his divorced wife for the iddat period or for the whole life and to be paid within iddat period. For convenience sake the related provision of Section 3(1) of the Act is extracted below:

"3. Mahror 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 maintain 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) **** **** ****

(d) **** **** ****

Section 3(1)(a)

The learned counsel for the petitioner submits that clause (a) of Sub-section (1) of Section 3 of the Act does not restrict the payment of maintenance for iddat period. It prescribes that reasonable and fair provision and maintenance are to be made by the former husband to the divorced wife within iddat period but for her entire life or till she re-marriage.

On the other hand, Mr. M. Kar Bhowmik, learned senior counsel for the respondent vehemently opposes the said contention and submits that none should approach the Court to re-write the statute, substituting the term "for the life" for the term "within iddat period". According to the learned counsel for the respondent the petitioner being divorced wife is entitled to be paid the maintenance for her iddat period and that was rightly given by the learned Courts below.

The learned counsel for the petitioner placed reliance on a decision given in Arab Ahemadhia Abdulla and etc. Vs. Arab Bail Mohmuna Saiyadbhai and Others etc., and submits that in view of Section-3(1)(a) of the Act, the petitioner is entitled to maintenance for her contemplated future needs for her entire life and that is not confined to the period of iddat, but that must be paid within the period of iddat. The Hon''ble Gujrat High Court interpreting Section 3(1)(a) of the Act held that the term within iddat period mandates that payment of maintenance for whole life must be paid during iddat period. Learned counsel for the petitioner also placed reliance on a decision given in Shakila Parveen v. HaiderAli @ Haidar and Anr., reported in 2000 Cal CLR 201. According to the Hon''ble Calcutta High Court, the former husband is to provide the divorced wife the reasonable and fair provision and maintenance in advance for meeting the anticipated needs and requirements for her whole life and that must be made and paid within iddat period. The learned counsel for the petitioner, strongly placed reliance upon a Full Bench decision rendered by the Punjab and Haryana High Court in Kaka v. Hassan Bano & another, reported in ILR 1998 P&H 267 and submits that the Hon''ble Punjab and Haryana High Court in that Full Bench decision gave a correct interpretation of Section 3(l)(a) of the Act, and according to the learned counsel for the petitioner, other interpretation contrary to one adopted by the Punjab and Haryana High Court would defeat the very purpose of entitlement of divorced woman for her maintenance during life time. I have carefully perused the Full Bench decision of Punjab and Harayana High Court and it appears that the Court dealt with the practical needs and real financial supports required by a divorced muslim woman to maintain her future life or till her re-marriage and that anticipated needs and requirement are to be paid by the former husband to his divorced wife within iddat period. According to the decision in Kaka''s case (supra) allowing maintenance for the period of iddat only would be nothing but putting the divorced wife in the street which cannot be the desire of any religious mandate and having taken care of the practical requirements of the divorced wife, the Parliament made the law requiring the husband to make provision and maintenance for her whole life but it should be paid within iddat period.

Being confronted, the learned senior counsel Mr. M. Kar Bhowmik, for the respondent carne forward with his argument with the help of Full Bench decision of the Andhra Pradesh High Court in Usman Khan Bahamaniv. Fathimunnisa Begum and Ors., reported in AIR 1990 Andhra Pradesh 225. Though in the reported case majority judgment delivered by Hon''ble Justice Sardar Ali Khan and Hon''ble Justice Bhaskar Rao delivered dissenting judgment but on the point of interpretation of Section 3(1)(a) of the Act, 1986, so far maintenance in concerned, there is no divergent views. All the Hon''ble Judges concurred regarding the interpretation of "maintenance" as available in Section 3(1)(a) of the Act. According to the Full Bench decision of Andhra Pradesh High Court, liability of the former muslim husband to pay "maintenance" to his divorced wife is confined only for and during the period of iddat. In Usman Khan Bahamani (supra) the Hon''ble Andhra Pradesh High Court discussed the ratio of the celebrated decision rendered by the Hon''ble Apex Court in Shah Bano Begum case (supra), but that decision stood defused by the subsequent legislation of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and a bare reading of the Act of 1986 ex-facie reveals, according to the Andhra Pradesh High Court , that the divorced muslim woman is entitled to be paid maintenance from her former husband only for the Iddat period and that must be paid within the iddat period itself. In Usman Khan (supra) the Hon''ble Andhra Pradesh High Court in the majority view held that the words "provision" and "maintenance" appeared in Section 3(1)(a) of the Act conveying the same meaning cannot be treated for two different purposes while the minority view in that case rendered by Hon''ble Justice Bhaskar Rao held that the terms "provision" and "maintenance" used in Section 3(1)(a) of the Act carry different meaning for different purposes and for different periods. According to the minority view former husband is to make fair and reasonable "provision" for his divorced wife for her whole life or till her remarriage, while so far "maintenance" is concerned i.e. the limited period of iddat.

The aforesaid divergent views expressed by the Full Bench of two Hon''ble High Courts, one sitting at Chandigarh and another at Hydrabad though persuasive to this Court, apparently it becomes very difficult to reconcile the both and, as such, before evaluating the acceptability of either, I propose to proceed with indepth study of the scheme of the Act of 1986.

Section 3 of the Act, 1986 consists of 4 Sub-sections. Sub-Section (1) having 4 clauses deals with the payment of mahr (dowry) provision and maintenance of the divorced wife and the children and also with the personal property of the wife. Sub-section (2) deals with the procedure to be adopted in case of failure of the husband to comply with the provision of Sub-section (1) and subsection (3) deals with the power of the Magistrate for compelling the husband to make arrangement for reasonable and fair provision and maintenance for his divorced wife and children within the iddat period and Sub-section (4) deals with the process of execution to be adopted by the learned Magistrate for compliance of order passed under Sub-section (2) of Section 3. Section 4(1) of the Act takes care of the contingencies where a divorced woman who had not remarried and is unable to maintain herself after the iddat period, the Magistrate being moved by the wife may direct the relatives of the wife who would inherit her property to pay reasonable and fair maintenance to her. Section 4(2) deals with the contingencies where the divorced wife is unable to maintain herself and she has no relatives as classified under Sub-section (1) to provide her maintenance, the Magistrate on being moved may direct the State Wakf Board to pay reasonable maintenance to the divorced wife as determined by the Magistrate, (emphasied supplied).

Section 3 cannot be read in isolation of Section 4, to have a harmonious interpretation of the provisions of both the Sections, it transpires that the Parliament very consciously has inserted the term "to make provision" in Section 3(1) while deliberately avoided the use of the said term "to make provision" in Section 4 of the said Act and, as such, it cannot be legally held that the term "to make provision" is a substitute for the term to "pay maintenance" nor the said two terms can be held to be alternative of each other, but in my considered opinion, the term "to make provision" is independent one and only is applicable in Section 3(1) of the Act, and, as such, only the former husband of a muslim woman is under statutory obligation "to make provision" for the whole life of his divorced wife or till she re-marriage, while his liability to pay maintenance is limited for iddat period.

From a combined reading of the aforesaid provisions it is crystal clear that former husband of a muslim divorced woman is to pay maintenance to his divorced wife of iddat period and after the expiry of iddat period if necessity continuous for her maintenance, liability shifts upon her relatives as classified in section 4(1) of the Act and in absence where of upon the State Wakf Board pursuant to Section 4(2) of the Act. But, so far "making provision" is concerned it is only the former husband who is to satisfy the requirement for his divorced wife for her entire life or till her re-marriage and that must be fulfilled within the iddat period.

Both the provisions embodied under Sub-sections (1) and (2) of Section 4 of the Act deal with the payment of maintenance and maintenance alone and never deal with "making any provision". u/s 125 of the Cr.P.C. the husband''s liability is confined to maintenance only and there is no stipulation for "making provision", but in "the Muslim Women (Protection of Rights on Divorce) act, 1986" in Section 3 the Parliament very deliberately used different terms so far the liabilities of the former husband is concerned. The former husband is put under obligation by the Act to make provision and to pay maintenance (italic emphasised) and according to the dissenting judgment of Hon''ble Mr. Justice B. Rao of Andhra Pradesh High Court in Usman Khan Bahamani (supra), both the terms as emphasised above cannot convey same and identical meaning. Only Section 3 of the Act directs the husband to make "provision" and pay "maintenance" to his divorced wife while neither Section 4 nor Chapter IX of Cr.P.C. Impose any such obligation/liability upon anybody to make any "provision" for divorced woman.

From the preamble of the Act of 1986, it reveals that the intendment of "the Muslim Women (Protection of Rights on Divorce) Act, 1986" has not been confined to the mater relating to "maintenance" only as the preamble runs as follows:

"An Act 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."

The Preamble takes care of protecting the rights of divorced Muslim women and "to provide for matters connected therewith or incidental thereto". The needs and requirements of a divorced Muslim woman are not confined to maintenance and maintenance alone. Apart from the requirement of fooding, clothing, medicine the divorced woman may require the minimum residential accommodation and least arrangement for proper utilisation of leisure and recess and proportionate fund for discharging religious and social obligations etc.

Unfortunately, the Act of 1986 does not define "provision" and/ or "maintenance". The word "maintenance" is also remained not defined under the Criminal Procedure Code.

Having gone through the meaning of the term "provision" as have been given in the different English Dictionaries it reveals that the term "provision of course, with reference to the context in hand, conveys meaning which include "supply of necessaries of house holds", "act of providing or supplying something for future needs," "measures/step taken to mix some contingencies which may arises in future". "Shorter the cause unforeseen future expenses"."

Having regard to the aforesaid, it can be conveniently held that Section 3 of the Act stipulates that the former husband of the divorced muslim woman has to "make provision" and "pay maintenance" within the iddat period and after the expiry of the Iddat period the liability "to pay the maintenance" is shifted upon the relatives classified and referred to u/s 4(1) and in case of nonavailability of the relatives as stipulated u/s 4(1) to the State Wakf Board u/s 4(2) of the Act, but the Parliament deliberately omitted terms "provision" in both Sub-sections of Section 4 of the Act which would lead any prudent man to form an opinion that so far "making provision" is concerned the liability remains with the former husband by the implicit significance of deliberate mentioning of the same in Section 3 while consciously omitting in Section 4 and this cannot be lor any limited period. The divorced muslim woman obviously may require minimum residential accommodation and also proportionate fund for proper utilisation of leisure and recess and also to discharge her social and religious obligation in addition to her needs for fooding, clothing and medicare and, as such in my considered opinion, the former husband is not absolve from his statutory liability from making with the provision for his divorced wife so far the minimum necessity of residential accommodation, fund for proper utilisation of leisure and recess and to discharge religious and social obligation even after iddat period.

In the result, in view of the legal implications and consequences of combined study of Sections 3 and 4 of the Act as a whole, I am of the considered opinion that the former muslim husband is under legal obligation to "make provision" for his divorced wife as elaborated above for her whole life or till her re-marriage and should be made within iddat period having regard to the status and financial condition of both and so far the liability to pay maintenance is concerned, it is confined for iddat period though must be paid within iddat period.

Though the decision of Hon''ble Punjab and Harayan High Court in Kaka v. Hassan Bano and Anr. (supra] helped me much, yet respectfully I am constrained to differ, and I am thankfully accepted the ratio of the dissenting judgment of Mr. Justice B. Rao of Andhra Pradesh High Court in Usman Khan Bahawani (supra)

23 In the result, the petition succeeds as indicated above. The case is remitted back to the learned trial Court. The learned Trail Court is directed to decide the requirement of "provision" to be made by the respondent (former husband) and dispose of the case in accordance with the provision of Section 3(3) of the Act and having regard to the observation and decision made above.