Two interesting questions have primarily arisen for consideration in this petition under Section 482 of the Code of Criminal Procedure filed by a former husband who has suffered an order under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act').

(i) Is consummation of marriage sine-qua-non for entitlement of reasonable and fair provision and maintenance to a divorced Muslim woman?

(ii) Is the court debarred from entertaining an application under Section 3 of the Act before expiry of the iddat period?

2. The above questions have cropped up in the following facts and circumstances:

3. The respondent herein who is the divorced wife of the petitioner, initiated proceedings under Section 3 of the Act alleging inter-alia that she had been denied the dues payable under the Act after her divorce. She also claimed that the petitioner had not returned her gold ornaments and cash given to her by her parents and relatives at the time of marriage. It was also averred in the petition that her former husband had wilfully refused to pay her 'Mahr' which was promised at the time of marriage. A total sum of Rs.2,42,786/- was claimed by the respondent under various heads, including maintenance during the period of Iddat.

4. In the counter statement petitioner contended that he had married the respondent in the year 1997 after the death of his first wife. According to the petitioner, he decided to marry the respondent since he wanted company in his old age. He was 73 at the time of marriage. But soon after the marriage, he realised that the respondent was incapable of having sexual intercourse since she did not possess any of the anatomical or physiological attributes of a female, though in outward appearance she looked like a woman. Petitioner asserted that the respondent was not a woman at all and therefore the marriage was not consummated. When the respondent realised that the petitioner had detected this deformity in her, she had left the matrimonial home after discussing the matter with him. In short, while resisting the claim made by the respondent under Section 3of the Act, it was contended by the petitioner that the respondent not being a woman and the marriage between him and her not having been consummated, she was not entitled to invoke the above statutory provision.

5. After considering the oral and documentary evidence and the rival contentions of the parties, the trial court held that the respondent was entitled to get a sum of Rs.8,368/- towards the value of two sovereigns of gold and Rs.4,500/- towards maintenance during the iddat period. It was further held that the petitioner was liable to return a sum of Rs.15,000/- received by him at the time of marriage. He was also directed to pay a sum of Rs.75,600/- towards fair and reasonable provision and maintenance of the respondent. Thus, as against a total claim of Rs.2,42,786/-, the trial court awarded a sum of Rs.1,03,468/- with 6% interest per annum from the date of order till realisation.

6. The above order was challenged by the petitioner before the Sessions Court which modified and reduced the amount awarded by the trial court. The Sessions Court found that the respondent was entitled to get Rs.3,000/- as maintenance during "iddat" period and a sum of Rs.60,000/- as fair and reasonable provision and maintenance. The amounts awarded by the trial court under the other heads were disallowed.

7. It is vehemently contended by Shri T.G. Rajendran, learned counsel for the petitioner that the respondent was not entitled to get the benefits of the provisions of the Act at all, since she did not come within the definition of "divorced woman" under Section 2(a) of the Act. The attempt of the learned counsel appears to be, to contend for the position, that the respondent not being a woman, she would not come within the purview of the Act. It is contended that the respondent did not have any of the sexual attributes of a woman, though she look