Smt. Noorun-Nisha And Anr. vs Maqsood Ahmad on 4 March, 1994

    Smt. Noorun-Nisha And Anr. vs Maqsood Ahmad on 4/3/1994

ORDER

   K.M. Agarwal, J.

   1. This 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 Mahr 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 IVth 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. 1 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 Mahr 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 women 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 hereself 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 thereafter 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 or his friends.

   4. 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

   5. Similarly, clause (b) of Sub-section (1) of Section 3 of the Act entitles
a divorced woman 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. 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 months 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 Section 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(l)(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.

   6. The learned counsel for the applicants relied on A. A. Abdulla v. A. B.
Mohmuna Soyeed Bhati, , Usman Khan Bahameni v. Fathimunnisa Begum, (FB), Savitri
v. Govind Singh, , G. M. Jeelani v. Shanswar Kulsum, 1994 Cri LJ 271 (AP), M. A.
Hameed v. Arif Jain, 1990 Cri LJ 96 (Andh Pra), and Rupsan Begum v. Md. Abdus
Sattar, 1990 Cri LJ 2391 (Gauhati) in support of his contention that even after
the divorce, the divorced wife and the child out of such broken marriage were
entitled to main-. tenance without any impediment of the period of Iddat, or
that of 2 years for the child. I find no substance in the contention and I 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) & (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, do not agree as to the entitlement of the divorced wife to receive
maintenance after the priod 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.

   7. In this 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) or Sub-section
(1) of Section 3 of the Act. Further as provided in 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 women on
satisfaction of the facts that:-

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

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

   Accordingly, after payment of the amount of Mahr the Court below is expected
to see 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 clauses (a) & (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.

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