Abdul Haq S/O Abdul Aziz vs Yasmin Talat on 1 September, 1997

    Abdul Haq S/O Abdul Aziz vs Yasmin Talat on 1/9/1997

ORDER

   N.K. Jain, J.

   1. This revision is directed against the order dated 23-7-1993 passed by
J.M.F.C. in Misc. Cr. Case No. 8/93.

   2. Applicant is the former husband of the respondent, the latter having been
divorced by the former. Both the parties are Mohammedans.

   3. The order impugned is passed under section 3 of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 (for short, 'the Act'), directing
applicant to pay to his former wife the following amounts:-

     (a) Rs. 21,000/- towards Mehr;

     (b) Rs. 2,000/- as price of the articles and things;

     (c) Rs. 2,000/- for maintenance during the period of Iddat; and

     (d) Rs. 11,000/- towards a reasonable and fair provision to be made during
the period of Iddat.

   4. Although in the revision memo the entire order is assailed, however, at
the hearing, the challenge was restricted only to the amount of Rs. 11,000/-
directed to be paid as reasonable and fair provision in terms of section 3(1)(a)
of the Act.

   5. I have heard Shri Iqbal Ahmad, learned counsel for applicant and Shri
Suresh Garg, learned counsel for respondent.

   6. The question requiring determination is whether under section 3(1)(a) of
the Act an additional amount over and above the amount of maintenance, is
required to be paid by the former husband to his divorced wife, by way of a
reasonable and fair provision, during the period of Iddat.

   7. Section 3(1)(a) of the Act, 1986 reads as follows:

     3(1) (a) - A reasonable and fair provision and maintenance to be made and
paid to her within the iddat period by her former husband;

   7A. After the decision of the Supreme Court in Shah Bano case, AIR 1985 SC
945, the Act of 1986 has been enacted to make the law of maintenance in
conformity with the personal law of Muslims in so far as it relates to the right
of maintenance of Muslim women after dissolution of marriage. In order to
ascertain correct import of the words "a reasonable and fair provision and
maintenance to be made and paid to her" occurring in clause (a), it would be
useful here to refer to the position of the Muslim Personal Law on the point.

   8. Section 279 of the Principles of Mahomedan Law by Mulla (18th Edition)
provides:

     "279. Maintenance on divorce. - After divorce, the wife is entitled to
maintenance during the period of iddat(s) (S. 257). If the divorce is not
communicated to her until after the expiry of that period, she is entitled to
maintenance until she is informed of the divorce (t)."

   So, after divorce, a Muslim wife is entitled to maintenance from her former
husband during the period of iddat and until her delivery, if she is pregnant.
However, the Muslim Personal Law does not speak of two separate things; one, by
way of a reasonable and fair provision; and two, payment of maintenance. The
words 'provision' and 'maintenance' seem to convey the same meaning. This
position is recognised by the Supreme Court in Shah Bano's case (supra). In para
15 of the judgment their Lordships of the Apex Court have referred to the Arabic
version of relevant verses of the Quran where word 'Mata' has been used which
means 'provision'. The words "a reasonable and fair provision" in section
3(1)(a) seems to represent this Arabic word Mata while the word maintenance, it
appears, has been imported from section 125, Criminal Procedure Code and other
laws providing for grant of maintenance. Therefore, the words 'a reasonable and
fair provision and maintenance' in section 3(1)(a) though ostensibly may appear
to be distinct, but in reality they are one and the same thing.

   9. The legal position on the point has been made luculent by a Full Bench
decision of Andhra Pradesh High Court in Usman Khan, AIR 1990 AP 225 in
following words:-

     "The concept of 'reasonable and fair provisions and maintenance' cannot be
read as meaning two different things. The word 'Mata' used in Ayat 241 indicates
that the words 'fair and reasonable provision and maintenance' convey the same
meaning"

   10. I respectfully agree with the view taken by the A. P. High Court and hold
that no separate amount by way of fair and reasonable provision, over and above,
the amount of maintenance, could be awarded under section 3(1)(a) of the Act. No
such amount was- claimed by the respondent-wife either in her application or in
evidence.

   11. The revision thus succeeds to the extent indicated above and the
direction for payment of Rs. 11,000/- as 'a fair and reasonable provision' is
set aside. With this modification in the order impugned, the rest of the
revision is dismissed.