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PATNA HIGH COURT
S.K.Chattopadhyaya and N.N.Singh JJ.
Haroon Rashid
Versus
Raqueeba Khatoon
Criminal Revision No. 73 of 1994 ;
Decided On : OCTOBER 8, 1996
MUSLIM WOMEN (PROTECTION OF RIGHTS AND DIVORCE) ACT, 1986 - SECTION 3(1)(A) - MAINTENANCE - INTERPRETATION - FAIR AND REASONABLE PROVISION AND MAINTENANCE TO BE MADE AND PAID TO HER WITHIN THE IDDAT PERIOD BY HER FORMER HUSBAND - HELD, THE WORDS "WITHIN THE IDDAT PERIOD" SIGNIFY ONLY THAT THE AMOUNT HAS TO BE PAID WITHIN THAT PERIOD AND IT CANNOT BE FOR THE IDDAT PERIOD.
Fact of the Case:
The petitioner husband challenged the impugned order mainly on the ground that under the Act, the husband has no liability to pay maintenance to his divorced wife beyond the period of iddat, as provided under Sec. 3 of the Act and that the impugned order was passed without considering the fact that the opposite patty-wife, had withdrawn the maintenance amount for the period of iddat period and that the impugned order was contrary to the remand order dated 12.11-1990 passed by the High Court in Cr. Misc. No 347 of 1990 (R).
Finding of the Court:
The court held that according to Secs. 3 and 4 of the Act, a divorced Muslim woman is entitled to the following rights: (a) She is entitled to get a reasonable and fair maintenance for the iddat period and fair and reasonable provision to be made and paid to her within the iddat period in lump sum or in monthly instalments, which should be determined according to reasonable need of the divorced wife for the rest of her life or remarriage, the standard of living enjoyed by her during her marriage and the means of her former husband. In addition, she is entitled to have Mahr or dower amount and all the properties given to her; (b) If she has not re-married after iddat period and if in spite reasonable and fair provision made for the post-iddat period, she faces destitution and is unable to maintain herself, then she is entitled to her maintenance from the relatives who are entitled to inherit her property, on her death for the period as directed by the Magistrate; and (c) If her relatives are also not in a position to pay such maintenance, she is entitled to get it from the Wakf Board, at such period, as specified by the Magistrate.
Issues: Whether maintenance contemplated under Sec. 3(1) of the Act is restricted only for the period of Iddat or a fair and reasonable provision has to be made in further also, within the period of Iddat.
Ratio Decidendi: The court held that the words "within the iddat period" used in Sec. 3(1)(a) of the Act 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.
Final Decision: The court set aside the order of the Additional Judicial Commissioner, dated 19.2.1994 passed in Criminal Revision No. 35 of 1992 and remitted the case to the court of the Judicial Magistrate for fresh decision on the points involved in the light of the discussions made above in this order and in accordance with law.
N.N.Singh, J.
1. By order dated 25.8.1995 passed in criminal revision No. 199 of 1994 (R), this matter was referred by the learned Single Judge to a larger Bench, on the ground that two Single Bench Judgments of this Court reported in 1987 PLJR 65-Md. Yunus V/s. Bibi Phenkani alias Tasrun Nisa and Anr. and Anr. reported in 1989 (2) BLJ 671-Md. Arif V/s. Bibi Jamila Khaton were of conflicting view regarding determination and interpretation of Sec. 3(1)(a) and Sec. 4 of the Muslim Women (Protection of Rights and Divorce) Act, 1986 (hereinafter to be referred to as the Act) and regarding period of maintenance to a divorced Muslim Women. As the same question was involved in Criminal Revision No. 73 of 1994 (R), by order dated 18.10.1995, another learned Single Judge ordered that it would be heard alongwith Criminal Revision No. 199 of 1994 (R).
2. Criminal Revision No. 199 of 1994 (R) was filed against the order dated 31.8.1994 passed by Sri U.N. Mishra, Judicial Magistrate, First Class. Ranchi in Misc. Case No. 57 of 1985 by which he ordered petitioner husband to pay maintenance allowance under Sec. 125 of the Code of Criminal Procedure from 11.11.1985 to 10.7.1988 (date of divorce) at the rate of Rs. 400 (rupees four hundred) per month amounting to Rs. 12, 800 and at the rate of Rs. 600 (six hundred) per month for next three months (Iddat period) with direction that interim maintenance allowance granted earlier @ Rs. 200 and Rs. 600 respectively would be adjusted. The opposite party-divorced wife was also ordered to be paid Rs. 75, 000 in lump sum for he further maintenance beyond iddat period under Sec. 3 of the Act. The petitioner husband challenged the impugned order mainly on the ground that under the Act, the husband has no liability to pay maintenance to his divorced wife beyond the period of iddat, as provided under Sec. 3 of the Act and that the impugned order was passed without considering the fact that the opposite patty-wife, had withdrawn the maintenance amount for the period of iddat period and that the impugned order was contrary to the remand order dated 12.11-1990 passed by the High Court in Cr. Misc. No 347 of 1990 (R).
3. Briefly stated, the fact of the case is that on 11.11.1985, opposite party No. 1 (Raqueeba Khatoon) filed Misc. Case No. 57 of 1985 under Sec. 125 of the Code of Criminal Procedure claiming that she was married with the petitioner Haroon Rashid on 25.12.1969, according to the Muslim law and customs and Goloota marriage her elder brother Gulam Rabbani was married to the sister of the petitioner Haroon Rashid and that in retaliation of bad relationship between her brother and his wife, she was neglected and had to go to her parents house. On 14.7.1988, the petitioner informed the court that on 11.7.1988 he had divorced the opposite party No. 1 and on 4.2.1989, he filed application that in view of the provision of the Act, he was prepared to pay the dower debt and reasonable and fair provision and maintenance for the Iddat period. By order dated 22.4.1989, the learned Judicial Magistrate directed the petitioner to pay a sum of Rs. 8800 to the opposite party (Rs 5000 as Dain Mahar + Rs. 2600 for 2 Dinars and Rs. 1200 for maintenance for Iddat period at the rate of Rs. 400 per month) Rs. 8200 (rupees eight thousand and two hundred) was deposited by petitioner, which was withdrawn by the opposite party under protest. The petitioner preferred a revision application (criminal revision No. 52 of 1989) against the above order of the Judicial Magistrate dated 22.4.1989, which was heard and disposed of by the 5th, Additional Judicial Commissioner by judgment date 9.1.1990, whereby the criminal revision application was dismissed holding that the proceedings under 125, Cr. PC will continue even after divorce. Therefore, the petitioner filed an application under Sec. 482 of the Code of Criminal Procedure (Criminal Misc. No. 347 of 1990 (R), which was heard and disposed of by a Division Bench of this
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