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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K.M. NATARAJAN & THE HONOURABLE MR. JUSTICE SOMASUNDARAM
RAJA MOHAMMED
Versus
MOIMOON
Cri. Appeal 656 Of 1989
Decided On : 25-10-1991
Held: A close and careful reading of Sections 3 and 4 as well as Sections 5 and 7 of the Act would give us a clear picture of the rights of a divorced woman. As already pointed out, Section 3(1)(a) provides that a divorced woman is entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. It is specifically stated in Section 3(1)(a) of the Act that a reasonable and fair provision and maintenance shall be paid to the divorced woman by her former husband 'within the iddat period'. The word 'within' in Section 3(1)(a) clearly means that the liability of the husband is to provide maintenance to his divorced wife within the period of iddat and for the period of iddat and not beyond the period of iddat. There is nothing in the language of Section 3(1)(a) which warrants the interpretation that the liability of the husband to pay maintenance to his divorced wife extends beyond the period of iddat. It must be remembered that the Act itself was passed to remove the difficulties which have arisen as a result of the decision of the Supreme Court in Shahbanu's case1. To hold that Section 3(1)(a) imposes any obligation on the part of the husband to provide fair and reasonable maintenance to his divorced wife beyond the period of iddat also would result in defeating the very purpose for which the Act has been enacted. Only Section 4 deals with payment of maintenance to a divorced woman who has not remarried and is not able to maintain herself after the period of iddat. Section 4 imposes an obligation only on the relatives of the divorced women or the Wakf Board as the case may be to pay maintenance to the divorced woman after the period of iddat if she is not remarried or is not able to maintain herself after the iddat period. Section 4 does not impose an obligation on the husband of the divorced woman after the iddat period. Therefore, Section 4 also goes to show that the former husband is not liable to pay maintenance to the divorced woman after the iddat period. Section 5 of the Act gives an option to the parties to be governed by the provisions of Sections 125 to 128 of the Code if on the date of the first hearing of the application under sub-Section (2) of Section 3, a divorced woman and her former husband declare by an affidavit or any other declaration in writing either jointly or separately that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code. Section 7, a transitional provision provides that every application by a divorced woman under Section 125 or under Section 127 of the Code, pending before the Magistrate on the commencement of the Act, shall not withstanding anything contained in the Code and subject to the provisions of Section 5 of the Act, be disposed of by the Magistrate in accordance with the provisions of the Act. A combined reading of Sections 3 to 7 of the Act goes to show that the object of the Act is to bring the law of maintenance payable to a. divorced woman in consonance with the principles of Muslim Law. (Para 10)
Result: Appeal allowed
SOMASUNDARAM, J.
( 1 ) THIS appeal is filed by the husband against the order of the Family Court, madras in M. C. No. 297 of 1988 passed under Section 125, Code of Criminal Procedure, hereinafter called the Code, directing the appellant to pay maintenance to the respondent at the rate of rs. 500/- per month with effect from 2- 3-1987. The respondent herein filed the petition M. C. No. 297 of 1988 against the appellant under section 125 claiming maintenance and the case of the respondent is as follows:
( 2 ) THE appellant married the respondent on the 21-5-1984 according to Islamic rites and thereafter they lived together at Madras up to February, 1985. Though sufficient money and articles were paid to the appellant he was not satisfied with them and he insisted upon the respondent to bring Rs. 20,000/-from her mothers house. She could not bring the same and thereafter the respondent was driven out of the house in February, 1985. During her absence the respondent lived with one Rohini. After February, 1985, the appellant neglected and refused to maintain the respondent. The respondent has no income of her own and she is unable to maintain herself. The appellant is working as a conductor in Pallavan Transport Corporation and earning Rs. 1,000/- per month and he gets about Rs. 5,000/- per month as a film actor.
( 3 ) THE appellant filed a counter admitting his marriage with the respondent. His main defence is that he has pronounced Talak three time and dissolved the marriage; that he also sent the mahar amount of Rs. 201/-to the respondent and in view of the Muslim Women (Protection of Rights on divorce) Act 25 of 1986, hereinafter called the Act, the respondent is not entitled to claim any maintenance from him.
( 4 ) THE Family Court, on a- consideration of the entire evidence on record, found that in February, 1987 the appellant dissolved his marriage with the respondent by pronouncing Talak thrice. However, the Family Court came to the conclusion under the Provisions of the Act, even after divorce, a former husband is liable to make a fair and reasonable provision and maintenance to the divorced wife. The Family Court held that the respondent is entitled to receive a reasonable and fair maintenance from the appellant and directed the appellant to pay a sum of Rs. 500/-per month towards her maintenance with effect from 2-3-1987. Aggrieved by the said order of the Family Court the appellant has preferred the present appeal.
( 5 ) MR. M. Karpagavinyagam, Learned Counsel for the appellant contended that the marriage between the appellant and the respondent took place on 21-5-1984; On 24-2-1987 the appellant divorced the respondent by pronouncing Talak in the manner known to law; The respondent filed the petition claiming maintenance under Section 125 of the Code on 2-3-1987. The Act came into force with effect from 19-5-1986; After the Act came into force the petition for maintenance under Section 125 of the Code is not maintainable and that in any event the application filed before the Family Court must be considered as one under Section 3 (1) of the Act. The learned Counsel for the appellant further contended that the Family Court has found that the appellants has divorced the respondent by pronouncing Talak thrice; According to Section 3 (1) of the Act a divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband and that the various provisions of the Act go to show that the former husband is not liable to pay maintenance to the divorced woman beyond the period of iddat, and therefore, the order of the Family Court granting future maintenance to the respondent is illegal and liable to be set aside.
( 6 ) ON the other hand, Mr. Suryapraksam, learned Counsel for the respondent contended that the finding of the Family Court that the appellant divorced the respondent by pronouncing Talak thrice is not based on acceptable evid
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