T.K. Abdulla vs Subaida And Anr. on 13 July, 2006

    T.K. Abdulla vs Subaida And Anr. on 13/7/2006

JUDGMENT

   R. Basant, J.

   1. Should a divorced Muslim woman be unable to maintain herself to entitle
her to amounts under Section 3 of the Muslim Women (Protection of Rights on
Divorce) Act? Is she entitled for any amount under Section 3(1)(b) on the ground
that she herself had maintained children who are aged more than 2 years on the
date of divorce? These interesting questions arise for consideration in this
revision petition directed against an order passed under Section 3 of the Muslim
Women (Protection of Rights on Divorce) Act (hereinafter referred to as the
'Act'). The order directs the petitioner herein/divorced husband to pay a total
amount of Rs. 2,73,000 to the claimant, his divorced wife.

   2. Marriage and divorce are admitted, Liability to pay maintenance during the
period of Iddat is not disputed. Liability to make fair and reasonable provision
and maintenance is also not disputed. There was a claim for deferred mahar
payable at the time of divorce. There is dispute regarding the quantum of
deferred mahar and also as to whether there is any deferred mahar. Amounts were
claimed under Section 3(1)(b)of the Act. The children were aged 12 years, 12
years and 10 years at the time of divorce. It was claimed that under Section
3(1)(b) the mother of the children is entitled to maintenance for two years from
the date of birth of the children - the petitioner having allegedly not paid any
maintenance to them during such period. An amount of Rs. 72,000 (Rs. 1000 p.m. 3
children 24 months) was claimed.

   3. The claimant wife examined herself as PW1 and her uncle as PW 2. Exts. P1
and P2 were marked. The petitioner herein examined himself as CPW2. The
Secretary of the Mosque was examined as CPW1 to prove the marriage register.

   4. The learned Magistrate came to the conclusion that the claimant wife is
entitled for the following amounts:

1. Maintenance during the period

        of iddat for three months - Rs. 5,000 (total)

2. Fair and reasonable provision

   and maintenance - Rs. 1,80,000 (Rs. 3000 12 5 years)

3. Deferred mahar payable at the time

   of divorce - Rs. 16,000 (Rs. 4000 4 sovereigns)

4. Amounts payable as maintenance

   to the children under Section

   3(1)(b) of the Act - Rs. 72,000 (Rs. 1000 3 2 12 months)

   5. There is no serious dispute about the quantum of amount payable towards
maintenance during the period of Iddat. The direction to that effect under
Section 3(1) is not challenged. Coming to the amount of Rs. 1,80,000 ordered as
fair and reasonable provision and maintenance it is contended that the monthly
quantum reckoned as Rs. 3,000 is totally incorrect, unreasonable, irrational and
perverse. The revisional jurisdiction deserves to be invoked to interfere with
that direction, it is urged.

   6. So far as the claim for deferred mahar is concerned, the claimant wife had
contended that 10 sovereigns of gold was the mahar agreed upon. The entire mahar
had not been paid and was deferred, she contended. The husband/petitioner herein
contended that only 3 sovereigns was the mahar agreed upon and the same had been
paid at the time of marriage itself and there was no deferred mahar whatsoever.

   7. Regarding the amounts claimed under Section 3(1)(c), the petitioner herein
contended that all the children having attained 10 years (more than 2 years) and
more at the time of divorce, no amount whatsoever is payable under Section
3(1)(b).

   8. Before proceeding to consider the challenge raised, I must alertly remind
myself of the nature, quality and contours of the jurisdiction of this Court
sitting as a Court of Revision exercising the correctional and supervisory
jurisdiction. No Court of revision shall or can invoke its supervisory and
correctional jurisdiction unless the finding/order is vitiated by illegality,
impropriety, incorrectness and irregularity and such vice in turn leads to
miscarriage of Justice. The Court below WBI called upon to collect acceptable
Inputs from the interested testimony tendered by PWs. 1 and 2 on the one hand
and the petitioner, RW 1, on the other. Indications unmistakably show the degree
of affluence enjoyed by the rival contestants. The petitioner herein is employed
in the Merchant Navy and the indications suggest convincingly and unmistakably
that his monthly Income, at any rate, exceeds Rs. 50,000. I am not embarking on
a detailed discussion as to what exactly and precisely was the monthly income.
The indications further suggest that the claimant wife was also earning an
income of about Rs. 10,000 p.m. Here again I am not embarking on a detailed
consideration of the precise quantum of monthly income of the wife.

   9. It is contended that the wife is entitled to maintain herself and that she
is not a person unable to maintain herself. Counsel relies on the factors which
prompted the Parliament to enact the Act and contends that the purpose was to do
justice to a Muslim wife who is unable to maintain herself. In this context the
learned Counsel relies on the decision in Kunhammed Haji v. Amina 1995 (2) RCR
(Crl) 719 (Kerala). I am unable to agree that the relevant observations in
paragraph 7 of the decision of the Division Bench can be reckoned as laying down
any binding precedent on the disputed question as to whether a divorced wife
able to maintain herself is entitled to the amount due under Section 3(1)(a).

   10. While discussing the factors which prompted the Parliament to come out
with a special legislation particularly for the Muslim woman certain
observations have been made by the Division Bench. Those observations cannot be
reckoned as introducing an insistence on an ingredient which is not there in
Section 3 that the divorced wife must be unable to maintain herself before she
can claim amounts from her husband. That conclusion does not flow from the
language of Section 3 or the purported objectives of the Act - to ensure that a
Muslim woman is entitled to additional rights which are protected by the
personal law and that the less advantageous secular law should not stand in the
way of the benefits which a Muslim woman is entitled to under the personal law.
This appears to be at least the purported objective of the Act.

   11. The precise question was considered by this Court in the decision in 1990
(1) KLT 192. Jagannatha Raju, J. in that decision has clearly held that it is
not the requirement of Section 3 of the Act that the divorced wife must be
unable to maintain herself before she can claim amounts under Section 3. I am in
total agreement with the law so laid down and the incidental observations made
by the Division Bench in Kunhammed Haji's case (supra), cannot alter the said
conclusion which flows directly from the language of Section 3. The Division
Bench has not overruled the dictum in 1990 (1) KLT 192. The Legislature is
conscious of the rights of the wives professing other religions under Section
125, Cr.P.C., when enacted Section 3 did not choose to weave into Section 3 the
requirement that the divorced wife must be unable to maintain herself. It is not
necessary to advert to certain precedents by other High Courts inasmuch as from
the language of Section 3 and from the precedent, which has remained from 1990
in Ahammeed v. Aysha (supra), the position is well laid down and need not be
doubted. I may clarify that even a millionaire wife will be entitled to claim
amounts under Section 3 of the Act from her billionaire husband and the fact
that she can maintain herself is no bar against any claim under Section

   3. In these circumstances the fact that the claimant divorced Muslim wife is
able to maintain herself and is not unable to maintain herself can have no
bearing on her right under Section 3(1)(a) though it may have relevance while
ascertaining the quantum.

   12. A husband is expected to make reasonable and fair provision and
maintenance under Section 3(1)(b). The relative affluence of the husband and
wife will be relevant while considering the fairness and reasonableness of the
provisions to be made. The husband was getting amounts exceeding Rs. 50,000 p.m.
The wife was getting only an amount of Rs. 10,000. It is reasonable to assume
that when they lived in harmony they must have been used to a standard of life
in between. Therefore, while considering the quantum of reasonable and fair
provision and maintenance to be made by the husband the relative, qualitatively
higher degree of affluence enjoyed by the husband vis-a-vis his divorced wife
must certainly be taken into account.

   13. The learned Magistrate only held that an amount of Rs. 3,000 p.m. is due
to the wife to bridge the gap between the actual income and the fair and
reasonable provision which the husband has to make. The Court has awarded only
maintenance for a period of five years. The same had been quantified and the
amount of Rs. 1,80,000 has been fixed. The course adopted by the Court below in
reckoning Rs. 3,000 as the monthly maintenance and five years as the probable
period, she would continue as a divorced wife - both the multiplier and the
multiplicand do appear to me to be correct The quantum fixed as Rs. 1,80,000
does not warrant interference. With three children between 10 and 12 years at
the time of divorce the chances of probable remarriage will also show that the
acceptance of multiplier as five is not unreasonable.

   14. We now come to the quantum of deferred mahar. Both sides have not chosen
to place before Court the complete truth. Husband claimed that the entire mahar
fixed of 3 sovereign has been paid. This is found to be incorrect and false when
DW 1 was examined and relevant documents were produced. It is seen that the
mahar was 4 sovereigns and not three as contended by the husband nor 10
sovereigns as contended by the wife. The Court reckoned 4 sovereigns as the
deferred mahar. I am unable to find anything wrong in the approach made by the
Court below or its conclusions on the question of deferred mahar - direction to
pay Rs. 16,000 was issued. It does not suffer from any vice warranting
revisional interference.

   15. The learned Counsel for the petitioner then contends that at any rate the
learned Magistrate has misdirected himself In law In assuming that the amount
under Section 3(1)(b) of the Act Is an amount payable to the children born in
the wedlock. The Court has erred in directing payment of an amount of Rs. 72,000
on the basis that the 3 children for a period of 2 years are entitled to amounts
@ Rs. 1,000 per mensem. It is on this calculation that the learned Magistrate
has directed payment of an amount of Rs. 72,000 (Rs. 1,000 3 2 12), though the
payment was directed to be made to the wife. I find considerable force in this
contention. Section 3(1)(b) of the Act reads as follows:

     Section 3. Mahar or other properties of Muslim woman to be given to her at
the time of divorce:

     (1)(a) ...

     (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.

   The learned Counsel for the petitioner contends and I agree that the Court
below erred grossly in assuming that the amount under Section 3(1)(b) is one
payable to the children, it is not so. That is only the amount payable to the
divorced wife and the rationale or philosophy underlying such a payment is not
the entitlement of the children, but only the entitlement of the wife who is
saddled with the responsibility of fosterage of the infant children who are born
before or after the divorce for a period of 2 years from the date of birth of
such children.

   16. One has to primarily look at the language of Section 3(1)(b). The amount
is payable to the wife undoubtedly. The payment is not the quantum of the
maintenance due to the children. An additional amount or payment for an
additional period is made available to the wife under Section 3(1)(b), because
she has the responsibility of fostering infant children even after divorce.
Whether such children be born before or after the marriage, the liability of the
husband to maintain such divorced wife who has infant children to be fostered is
fixed for the period till the children attain the age of 2 years.

   17. According to me, there can be no subsisting confusion on the legal
question anymore. The Supreme Court in Noor Saba Khatoon v. Mohd. Quasim III ,
in para 8 has removed the last trace of doubt if any on this question. I extract
para 8 below:

     'Para 8': Indeed Section 3(1) of 1986 Act begins with a non obstante clause
"notwithstanding anything contained in any other law for the time being in
force" and Slause (b) thereof provides that a divorced woman shall be entitled
to a reasonable and fair provision for maintenance by her former husband to
maintain the children born out of the wedlock for a period of two years from the
date of birth of such children, but the non obstante clause in our opinion only
restricts and confines the right of a divorcee Muslim woman to claim or receive
maintenance for herself and for maintenance of the child/children till they
attain the age of two years, notwithstanding anything contained in any other law
for the time being in force in that behalf. It has nothing to do with the
independent right or entitlement of the minor children to be maintained by their
Muslim father. A careful reading of the provisions of Section 125, Cr.P.C. and
Section 3(1)(b) of the 1986 Act makes it clear that the two provisions apply and
cover different situations and there is no conflict, much less a real one,
between the two. Whereas the 1986 Act deals with the obligation of a Muslim
husband vis-a-vis his divorced wife including the payment of maintenance to her
for a period of two years of fosterage for maintaining the infant/infants, where
they are in the custody of the mother, the obligation of a Muslim father to
maintain the till children is governed by Section 125, Cr.P.C. and his
obligation to maintain them is absolute till they attain majority or are able to
maintain themselves, whichever date is earlier. In the case of female children
this obligation extends till their marriage. Apart from the statutory provisions
referred to above, even under the Muslim Personal Law, the right of minor
children to receive maintenance from their father, till they are able to
maintain themselves, is absolute.

   18. Thus it is evident that the amount under Section 3(1)(b) is not a payment
to the children, but it is a payment to the wife and that payment stipulated is
only considering the responsibility of fosterage of the young children who have
not attained the age of 2 years. The liability of the husband to maintain his
wife would extend to the date on which such children who are born before or
after the marriage attain the age of 2 years. To further substantiate his
contention on this aspect, the learned Counsel for the petitioner has relied on
the translation of the Holy Quran by A. Yusuf Ali. Ch. II verse 233 is
translated thus:

     The mothers shall give suck

     To their offspring

     For two whole years,

     If the father desires

     To complete the term

     But he shall bear the cost

     Of their food and clothing

     On equitable terms.

   19. Tahir Mahmood's The Muslim Law of India, short edition at page 117 refers
to this liability in the following passage:

     (a) naffa-e-raza' at : fosterage-period maintenance

     This is to be paid to her by her former husband as long she has in her
custody a child of the couple under the age of weaning-which is ordinarily two
years but may be extended upto a reasonable limit. It is not necessary that she
must be breast-feeding the child. And it is her own maintenance - different from
and in addition to the maintenance of the child in her custody which in any case
the former husband as its father must pay - that she can claim from her former
husband.

     [Emphasis supplied]

   Thus it is evident that the amount under Section 3(1)(b) is intended to be
paid to the wife after divorce because she has the responsibility of fosterage
of the children who have not attained the age of 2 years.

   20. The learned Counsel for the respondent contends that such payment will be
available to the wife if she herself maintains her children for a period of
about 2 years from their birth, whether such birth be before or after the
divorce. He therefore contends that the impugned direction to pay an amount of
Rs. 72,000 to the claimant wife is justified. Inasmuch as she had maintained the
children born in the wedlock for a period of 2 yean from the respective dates of
birth of such children, she is entitled for such amount, it is urged.

   21. I am unable to agree that Section 3(1) contemplates any payment in
respect of children who were maintained by the divorced wife prior to the
divorce during their infancy for a period of 2 years from the date of their
birth. The expression 3(1)(b) is eloquent and it clearly shows that it does not
refer to a pre-divorce period. The use of the simple present tense is crucial.
After divorce, if the divorced wife maintains the children, then and then alone,
she will be entitled to payment under Section 3(1)(b) of the Act. Such claim is
on the ground that she has the responsibility of fosterage of such infant
children after the divorce. The fact that she "had maintained the children in
the past prior to divorce" cannot entitle her to any amount under Section
3(1)(b) of the Act.

   22. Needless to say, in this case no one has a case that the children were
aged less than 2 years on or after the divorce. Therefore the conclusion appears
to be inevitable that the wife is not entitled for any amount under Section
3(1)(b) on the plea that children were maintained upto 2 years by her, prior to
the divorce.

   23. The direction to pay an amount of Rs. 72,000 under Section 3(1)(b) must
in these circumstances be set aside. No attempt is made by the learned Counsel
for the respondent to support the said direction on any other ground.

   24. In the result:

     (a) This revision petition is allowed in part;

   (b) The impugned order is upheld in all other respects. But the direction to
pay amount of Rs. 72,000 under Section 3(1)(b) is set aside.