Mohamed Ibrahim vs Ramzan Begum

S.M. Ali Mohamed, J.—It is averred in the petition as follows :

The petitioner herein married the respondent on 19-8-1992, subsequently, he divorced the respondent by pronouncement of ''Talaq'' on 2-10-

1987. Thereafter, the respondent filed a petition u/s 3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, hereinafter referred

to as, ''the Act'' in M.C. No. 13 of 1990 on the file of Judicial Magistrate VI, Tirunelveli against the petitioner and prayed for a fair and reasonable

provision towards maintenance during the period of Iddat'' and return of the Mahr amount quantified in the sum of Rs. 20,000/-, restoration of

jewels valued at Rs. 33,000/, repayment of the amount of Rs. 10,000/- and restoration of the utensils and articles valued at Rs. 10,000/-all alleged

to have been given at the time of her marriage and for Rs. 50,000/- towards the further maintenance. Learned Judicial Magistrate-VI, fixed the

maintenance amount for the period of ''Iddat''. viz., three months, at the rate of Rs. 500/-per month amounting to Rs. 1,500/- and made an award

for the payment of Rs. 1,000/- after making deduction of Rs. 500/- already paid. The claim of the respondent towards Mahr amount of Rs.

20,000/- was rejected and the same was quantified in a sum of Rs. 201/-. The said amount was also paid by the petitioner herein. Learned Judicial

Magistrate further ordered that the respondent is not entitled to any provision towards further maintenance. However, the learned Judicial

Magistrate ordered directing the petitioner herein to pay a sum of Rs. 53,000/- to the respondent towards the value of the jewels, household

utensils and cash paid during the time of marriage. Aggrieved by the said order, the petitioner herein preferred Crl. R.C. No.111 of 1992 before

this Court, but the said Revision Petition was dismissed by the Court. It is also stated by the petitioner, that the respondent filed Crl. M.P. No. 847

of 1992 before the learned Judicial Magistrate-1, Tirunelveli, praying for a direction to pay the value of the jewels and other articles to her. The

petitioner herein filed his counter and contested the said petition. Learned Judicial Magistrate passed orders on 19-8-1992 and directed

attachment of the properties belonging to the petitioner to sell the same and realise the amount. Learned Judicial Magistrate issued warrant to the

above effect. The petitioner submitted further that the warrant was sought to be executed through the Inspector of Police, Ambattur. In view of the

coercion exercised against the petitioner, he paid a sum of Rs. 25,000/- by way of demand draft dated 21-9-1992 drawn on Bank of India,

Palayamkottai Branch. Aggrieved by the order passed by the learned Judicial Magistrate VI, Tirunelveli in Crl. M.P. No. 847 of 1992 dated 19-

8-1992, the petitioner has filed the present petition before this Court praying to quash the said order.

Learned Counsel for the petitioner submitted two points, viz., that as per Section 3(d) of the Act, the Court can order only delivery of such

properties given to the wife before or at the time of marriage or after her marriage by her relatives or friend or the husband or any relatives of the

husband or his friends, and that the Court has no power to order repayment of the value of such properties. It was further submitted that as per

Section 3(4) of the Act, there is no provision at all to enable the Magistrate to issue a warrant for recovering the amount, in lieu of jewels and other

articles given to the wife at the time of marriage and that in the absence of any provision, enabling the Court to issue a warrant for levying the

amount, in lieu of the value of jewels, household articles, utensils etc., the warrant issued by the learned Magistrate, is illegal and invalid and the

same has to be quashed.

I am unable to accept the contentions of the learned Counsel for the petitioner. Muslim Women (Protection of Rights on Divorce) Act was

enacted by Parliament as Act 25 of 1986. The statement of Objects and reasons of the Bill is as follows :

The Supreme Court, in Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, , has held that although the Muslim Law limits the husband''s

liability to provide for maintenance of the divorced wife to the period of Iddat, it does not contemplate or countenance the situation envisaged by

Section 125 of the Code of Criminal Procedure, 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 divorced wife

is able to maintain herself, the husband, liability ceases with the expiration of the period of iddat, but if she is unable to maintain herself after the

period of iddat, she is entitled to have resource to Section 125 of the Code of Criminal Procedure.

This decision 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 women is entitled to at the time of divorce and to protect her interest. 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

and in case she maintains the children born to be 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;

The Preamble of the Act reads as follows :

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 incidential thereto.

It is obvious fact that the Act has been passed by the Parliament to protect the rights of Muslim Women who have been divorced and to safeguard

their interests. Section 3(1) of the Act is as follows :

Mahr or other properties of Muslim women 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 women 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) 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 hereafter 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.

It is clear from a reading of Section 3(1)(d), a divorced Muslim woman shall be entitled to all the properties given to her before or at the time of

her marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends and this provision is

mandatory. The contention of the learned Counsel for the petitioner is that the very same properties given to the wife before or at the time of

marriage or after the marriage etc. should be given and not its monetary value. The said contention of the learned Counsel has no substance and I

reject the same. The object of the Act is to protect the rights of Muslim woman who have been divorced and Section 3(1)(d) has to be interpreted

liberally to fulfil the said object. The Supreme Court in A.V. Jadhav v. Shankar Rao Abasaheb Pawar''s case AIR 19S3 S.C. 1219 interpreting

Section 4 of the Dowry Prohibition Act, 1961 held that ""having regard to the object of the Act and a liberal construction has to be given to the

word ''dowry'' used in Section 4 of the Act to mean that any property or valuable security which if consented to be given on the demand being

made would become dowry within the meaning of Section 2 of the Act. Therefore if the husband has sold the properties given to his divorced wife

at the time of marriage or after marriage by her parents, relatives or friends, it is open to the Magistrate to ascertain the value of the said properties

and other articles and quantify the value in terms of money and grant relief to the divorced wife. If the properties and other articles could be traced

of course the learned Magistrate can direct return of actual property. In addition it is open to the Magistrate in appropriate cases to calculate the

loss to the property due to the user wear and tear and give necessary relief to the divorced wife. I, therefore reject the contention of the learned

Counsel for the petitioner that the very same properties or articles given to the wife at the time of the marriage and thereafter alone should be

directed to be returned and not its value. It is perfectly legal for the Magistrate to quantify the value of the property and articles in monetary terms

and give relief to the divorced Muslim wife.

The next contention of the learned Counsel for the petitioner is that Sub-clause (4) of Section 3 of the Act refers only to issue of warrant for

levying the amount of maintenance or mahr or dower and not for properties or other articles given at the time of the marriage and thereafter to the

divorced wife. I am unable to accept the said contention of the learned Counsel for the petitioner. Sub-clause 4 of Section 3 of the Act reads as

follows :--

If any person against whom an order has been made under Sub-section (3) fails without sufficient cause to comply with the order, the Magistrate

may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of

Criminal Procedure 1973 and may sentence such person for the whole or part of any amount remaining unpaid after the execution of the warrant to

imprisonment for a term which may extend to one year or until payment if sooner made subject to such person being heard in defence and the said

sentence being imposed according to the provisions of the said Code.

I am of the view that Sub-clause (4) of Section 3 of the Act has to be read along with the other provisions given in Section 3 of the Act in

particular Section 3(1)(d) specifically states that notwithstanding anything contained in any other law for the time being in force a divorced woman

shall be entitled to all the properties given to her before or at the time of marriage of after her marriage by her relatives or friends or the husband or

any relatives of the husband or his friends. Section 3(3)(b) stipulates that where an application has been made under Sub-section (2) by a divorced

woman the Magistrate may if he is satisfied that the amount equal to the sum of mahr or dower has not been paid or that the properties referred to

in Clause (d) of Sub-section (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 mahr or dower or the delivery of such properties referred to in Clause (d) of Sub-section (1) to the

divorced woman.

Learned Counsel pointed out that there is only mention of maintenance of mahr or dower m Sub-clause (4) of Section 3 of the Act and there is

no reference to properties jewels and articles etc. and therefore a warrant should not be issued by the learned Magistrate for recovery of the

amount The said contention of the learned Counsel for the petitioner has no substance. I am of the view that the entire Section 3 of the Act should

be read together. As per Section 3(1)(d) a divorced woman is entitled to return of all the properties given to her before or at the time of marriage

or after her marriage by her relatives or friends or husband or any relatives of the husband or his friends and u/s 3(3) where an application has been

made under Sub-section (2) by a divorced woman the Magistrate may if he is entitled that the amount equal to the sum of mahr or dower has not

been paid or that the properties referred to in Clause (d) of Sub-section (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 women. What is sought to be enforced u/s 3(4) is the order of

the Magistrate of the Court and the same should have been made under Sub-section (3) and when the husband without sufficient cause fails to

comply with the order made u/s 3(1)(d) of the Act of the Magistrate the said order shall be executed as per provisions of Section 3 Sub-clause

(4). Therefore there is no informity in the enforcement of such orders made by the learned Magistrate u/s 3(1)(e) of the Act. The non mention of

other properties and jewels in Sub-section 4 is irrelevant. The only point that has to be seen is whether an order has been passed by the Magistrate

with reference to the items enumerated in Section 3(1)(a) to (d) of the Act. Therefore I reject the contention of the learned Counsel for the

petitioner as unsustainable in law.

Learned Counsel for the petitioner submitted that out of Rs. 53,000/- quantified by the Magistrate as payable to the divorced woman the

petitioner has already paid a sum of Rs. 25,000/- to the respondent and only a sum of Rs. 28,000/- is due. The Counsel for the petitioner wants

time to pay the balance sum of Rs. 28,000/-. The petitioner is granted three months'' time from the date of this order to pay the balance sum of Rs.

28,000/- to the respondent divorced wife and in default the respondent shall be entitled to execute the warrant for the entire amount. In view of the

above this petition is dismissed.