The Act 25 of 1986, particularly S.3, provides for maintenance and fair provision to divorced women without requiring the wife to be unable to maintain herself, unlike other enactments.

1. This is a revision filed by the former husband of the petitioner in M.C.No.75 of 1987 on the file of the First Class Judicial Magistrate, Taliparamba. In this revision the husband complain that the order of the Magistrate directing him to pay Rs.12,000/- towards reasonable and fair provision and maintenance during the iddat period and also a sum or Rs.101/- towards mahar is illegal and not maintainable. The petitioner's counsel contends that in these proceedings which emanated on a petition under S.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act 25 of 1986) (hereinafter referred to as "the Act"), it is the bounden duty of the court to go into the question of means of the husband and then pass the orders as contemplated under the various sub-sections of S.3. If the wife is in affluent circumstances when compared to the husband, there is no need to pass an order. In the present case the court passed a composite order without specifying what amounts are payable under different heads mentioned in S.3(1) of the Act. He contends that while the petitioner, the former husband, is only a salesman getting Rs.440/-per month, the wife is in more affluent circumstances. She owns property, gets income from the property and she is also in receipt of remittances from her sons through the earlier marriage who are now employed in gulf countries. It is contended that the composite or the consolidated order is passed by the Magistrate without going into the question of the capacity of the husband to pay the amount and the relative financial position of the spouses. The petitioner's counsel places strong reliance upon Ali v. Sufaia,1988(2) K.L.T. 94, a single judge decision of this court, which dealt with the scope and ambit of S.3 of the Act. The petitioner's counsel also places reliance upon various decisions of the different High Courts and the Supreme Court which deal with petitions for maintenance under the Hindu Marriage Act, under S.125 of the Cr.P.C, and S.488 of the old Cr.P.C, and claims that the husband can be directed to pay maintenance only where the wife is unable to maintain herself. As there is no finding to the effect that the petitioner's divorced wife is unable to maintain herself, the order under S.3 should not have been passed.

2. On behalf of Shri. P.A. Mohammed, Shri. A. T. Ramesh argues that proceedings under S.3 of the Act will have to be dealt with without reference to the principles applicable for granting maintenance under the Cr.P.C., Hindu Marriage Act, etc. This Act does not contemplate the inability of the wife to maintain herself. He also contends that the Revision Petitioner is a partner in a business and hence he is certainly having the means to pay the amounts ordered to be paid by the Magistrate.

3. The point for consideration is whether the order passed by the Magistrate is in conformity with the provisions of S.3 of the Act.

4. The point: It should be remembered that this Act 25 of 1986 came into the statute book as a result of the epoch making decision of the Supreme Court in Shah Bano's case, (1985) 2 S.C.C. 556. The Act is meant to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their husbands. S3 is the most important section. The language of S.3(1) clearly indicates that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to the four items mentioned in clauses (a),(b),(c) and (d) of sub-section (1). Sub-section (2) lays down that where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or anyone duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties. Sub-se