Noorunnisha Maqsood Ahmad And ... vs Maqsood Ahmad Haji Hafiz Abdul ... on 4 March, 1994

    Noorunnisha Maqsood Ahmad And Anr. vs Maqsood Ahmad Haji Hafiz Abdul Wahid on
4/3/1994

JUDGMENT

   K.M. Agarwal, J.

   1. The revision by the Muslim wife and her minor son through the non-
applicant Muslim husband is directed against the impugned order of the first
Revisional Court whereby the litigation expenses and the interim maintenance
granted by the Court below in proceedings initiated at the instance of the
applicants under Section 3 of the Muslim Women (Protection of Rights on Divorce)
Act, 1986, in short, the "Act") have been set aside.

   2. It is not disputed that after the date of her divorce and after the period
of her Iddat, the applicant No. 1 filed a petition against the non-applicant for
realisation of the amount of Mehr as also for her maintenance and the
maintenance of her minor son under Section 3 of the said Act. She also made an
application for directing the non-applicant to pay the amount of Mahr and also
to pay her and to her minor son interim maintenance and cost of litigation. On
the basis of this application, it appears that the Court below was pleased to
direct the non-applicant to pay the amount of Mahr as also to pay interim
maintenance and cost of litigation to the applicant. Being aggrieved, the non-
applicant-husband preferred a revision which was allowed by the 4th Addl.
Sessions Judge, Jabalpur, by its impugned order dated 20-7-1993 Being aggrieved,
the applicants have preferred this criminal revision,

   3. It was not disputed before me that the applicant No. l was married to the
non-applicant on 25.2 1988 and that, the applicant No. 2 was born to them on 23
10.1989. After the birth of applicant No. 2, the applicant No. 1 was divorced by
the non-applicant on 8.8 1990. The instant application under Section 3 of the
Act was filed by the applicants on 14.8.1991. It is not in dispute that the
amount of Mehr that was awarded by the Court below and affirmed by the impugned
revisional order has been paid by the non-applicant to the applicant No. 1. Now,
therefore, the question that is required to be answered is whether the
applicants are entitled to any maintenance and/or interim maintenance and cost
of litigation from the non-applicant under Section 3 of the Act. Before deciding
that question, it would be necessary to look to the relevant provisions of the
Act which read as follows :

     "3 (1). Notwithstanding anything contained in any other law for the time
being in force, a divorced woman shall be entitled to :

     (a) a reasonable and fair provision and maintenance to be made and paid to
her within the iddat period by her former husband;

     (b) Where she herself maintains the children born to her before or after
her divorce, a reasonable and fair provision and maintenance to be made and paid
by her former husband for a period of two years from the respective dates of
birth of such children;

     (c) an amount equal to the sum of mahr or dower agreed to be paid to her at
the time of her marriage or at any time there after according to Muslim law; and

     (d) all the properties given to her before or at the time of marriage or
after her marriage by her relative or friends or the husband or any relatives of
the husband of his friends.

   A careful reading of Clause (a) of Sub-section (1) of Section 3 of the Act
would show that a divorced woman is only entitled to a reasonable and fair
provision and maintenance to be made and paid to her within the Iddat period by
her former husband. In the present case, it is not in dispute that the petition
itself was filed after the period of Iddat and, therefore, no interim amount of
maintenance could be directed to be paid by the non-applicant to the applicant
No. 1.

   4. Similarly, Clause (b) of Sub-section (1) of Section 3 of the Act entitles
a divorced woman where she herself maintains of children born to her before or
after her divorce, a reasonable and fair provision and maintenance to be made
and paid by her former husband for a period of two years from the respective
dates of birth of such children. In the present case, only one son was born to
the applicant and the non-applicant on 23.10.1989. The petition under Section 3
of the Act was filed on 14.8.1991, i.e., 2 mouths and 10 days before expiry of
the period of 2 years from the date of birth of the applicant No. 2 i.e., from
23.10.1989. Accordingly, by virtue of provisions of Sections 3(1)(b) of the Act
the applicants were not entitled to claim maintenance for the applicant No. 2
for a period of more than 2 years. On the date of the application under Section
3 of the Act that period of 2 years was only short by 2 months and 10 days and,
therefore, maintenance for the son could be claimed under Section 3(1)(b) of the
Act only for this period of 2 months and 10 days. For all these reasons, I do
not find any case for interference with the impugned order of the lower
Revisional Court.

   5. The learned Counsel for the applicants relied on A.A. Abdulla v. A.B.
Mohmuna Satyaabhai, AIR 1990 Guj. 141, Ushamanikhan Bahamani v. Fathimunnis
Begum, AIR 1990 AP 225, Savttri v. Govind Singh, AIR 1986 SC 984. G.M. Jeelani
v. Shanswar Kullum, 1994 Cr.L.J. 271, M.A. Hameed v. ArifJain, 1990 Cr.L.J. 96
(AP) and Rupsan Began v. Md. Abdus Sattar, 1990 Cr. L J. 2391 in support of his
contention that even after the divorce, the divorced wife and child out of such
broken marriage were entitled to maintenance without any impediment of the
period of Iddat, or that of 2 years for the child. I find no substance in the
contention and also do not think it necessary to discuss the various authorities
cited by the learned Counsel for the applicants in view of the fact that Clauses
(a) and (b) of Sub-section (1) of Section 3 of the Act are very clear and
unambiguous to support the view I am taking. Even the two High Courts, i.e.,
Gujarat and Andhra Pradesh, are not agree as to the entitlement of the divorced
wife to receive maintenance after the period of Iddat or about right of a child
for claiming maintenance for a period of more than 2 years from the date of his
birth. The decision of other Courts only have a persuasive value and for that
reason also it is not necessary to refer to those cases or to discuss them at
length for finding support for the view I am taking in this revision.

   6. In the connection, I also wish to point out that the wife is also entitled
to get back all the properties given to her before or at the time of marriage or
after her marriage by her relative or friends or the husband or any relatives of
the husband or his friends by virtue of Clause (d) of Sub-Section (1) of Section
3 of the Act. Further as provided Sub-section (3) of Section 3 of the Act where
an application has been made under Sub-Section (2) by a divorced woman the
Magistrate is competent to make an order within one month of the date of filing
of the application, directing her former husband to pay such reasonable and fair
provision and maintenance to the divorced woman as he may determine as fit and
proper having regard to the needs of the divorced woman the standard of life
enjoyed by her during her marriage and the means of her former husband or for
the payment of such mahr or dower or the delivery of such properties referred to
in Clause (d) of Sub-section (1) to the divorced woman and satisfaction of the
facts that :--

     (a) her husband having sufficient means, has failed or neglected to make or
pay her within the Iddat period of reasonable and fair provision and maintenance
for her and the children; or

     (b) the amount equal to the sum or mehr or dower has not been paid or that
the properties referred to in Clause (d) of Sub-Section (1) have not delivered
to her.

   Accordingly, after payment of the amount of Mahr the Court below is expected
to Section if the claim made for and on behalf of the wife under Section 3 of
the Act covers permissible claims under Clause (d) of Sub-Section (1) of Section
3 of the Act and/or claims under Clause (a) and (b) of Sub-section (3) of
Section 3 of the Act and if it finds the claim so made, it is bound to decide
those claims in accordance with law.

   7. Subject to observations aforesaid, I find no substance in this revision
and accordingly it is hereby dismissed but without any order as to costs.