The distinction between 'provision' and 'maintenance' under S.3(l)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, and the intention of the legislature to protect the rights of divorced Muslim women.

T.V. RAMAKRISHNAN, J.

1. This Criminal Miscellaneous Case filed under S.482 of the Criminal Procedure Code (for short ‘the Code’) was posted before us along with Criminal Miscellaneous Case No.1861/1993 on the basis of a common reference order. The specific question referred to the Division Bench has been answered by us in Criminal Miscellaneous Case 1861/1993 by a separate judgment and need not be considered again in this case. As per the judgment in Criminal Miscellaneous Case 1861/1993, we have held that the provisions contained in S. 397(3) of the Code will not be a bar for invoking the jurisdiction of this Court under S.482 of the Code. In the light of the said judgment, it has to be held that this Criminal Miscellaneous Case is maintainable in law.

2. Facts, necessary to deal with the contentions on merit raised in the case, can be summarised thus: The Ist respondent is the divorced wife of the petitioner. She filed Maintenance Case No.118 of 1989 in the Court of the Additional Chief Judicial Magistrate, Thalassery, under S.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short ‘the Act’). In the petition, 1st respondent claimed (i) an amount equal to the sum of mahr according to Muslim Law; (ii) amount towards maintenance during the period of iddat; and (iii) a reasonable and fair provision for future maintenance. The learned Magistrate rejected the claim towards mahr. Rs.5,000/- was allowed as maintenance payable during the period of iddat. The learned Magistrate also awarded Rs.30,000/- as reasonable and fair provision for her future livelihood. Aggrieved by the order, the petitioner preferred Criminal Revision Petition 143/1992 before the Court of Sessions, Thalassery. The learned Sessions Judge dismissed the revision confirming the order passed by the learned Magistrate. The Criminal Miscellaneous Case has been filed invoking the jurisdiction of this Court under S.482 of the Code.

3. On the above facts, learned senior counsel for the petitioner Shri T.P.K. Nambiar has mainly advanced two contentions. Firstly, it was submitted that grant of Rs.30,000/- as future maintenance under S.3 of the Act is illegal and unsustainable in law.Secondly, it was contended that the quantum of maintenance fixed is totally arbitrary and illegal. Learned counsel submitted that both the courts below have failed to take note of the fact that there is no reliable evidence on record to show the income of the petitioner and the finding regarding the means of the petitioner is based solely on surmises and conjectures.

4. Point No.(l):- Relying upon the provisions contained in Ss.3, 4 and 5 of the Act, it was submitted that the petitioner is liable to make only a reasonable and fair provision and to pay maintenance to the 1st respondent during the iddat period and not for any period subsequent thereto. In support of the above submission, it was pointed out that S. 3(l)(a) in terms restricts the right of the divorced woman to a claim for the benefits conferred by that clause and that too only for the iddat period and not for any period beyond that. To buttress the above submission, it was submitted that under the pristine Muslim Law, the liability of a husband to pay maintenance to a divorced wife ceases on the expiry of iddat period and thereafter there is no liability for the husband to pay maintenance to her. It was vehemently argued that the legislature having taken note of the above peculiarity of the personal law and the need to ensure a source of livelihood for the needy divorced Muslim women has made a special provision in S.4 of the Act for payment of maintenance to divorced woman in certain cases by her relatives indicated therein or by the Wakf Board. As per S.5, applicability of the provisions in Ss. 125 to 128 of the Criminal Procedure Code is also specifically excluded except in cases where both the husband and wife opts to be governed by those provisions. Relying upon the above provisions, it was argued