Nizar vs Hyrunneessa on 17 February, 1999

    Nizar vs Hyrunneessa on 17/2/1999

ORDER

   K.A. Mohamed Shafi, J.

   1. This Crl. M.C. is filed by the respondent in M.C. No. 3/1994 on the file
of the Judicial First Class Magistrate's Court, Payyoli to quash Annexures-A and
B orders passed by the Trial Court and the Revisional Court against the
petitioner.

   2. The M.C. was filed by the 1st respondent against the petitioner claiming
amounts under Section 3 of the Muslim Women (Protection of Rights on Divorce)
Act, 1986. The Trial Court after trial by order dated 18.5.1996 directed the
petitioner to pay the 1st respondent Rs. 10,500/- being the value of the balance
Mahar of 3 1/2 sovereigns, Rs. 4,500/- being the maintenance during the period
of Iddat, Rs. 30,000/- being the value of 10 sovereigns of gold ornaments, Rs.
50,000/- given to the petitioner by the father of the 1st respondent and Rs.
90,000/- by way of future maintenance. The petitioner assailed that order before
the Sessions Court, Kozhikode in Crl. R.P. No. 44/96. The Revisional Court
allowed the revision in part and confirmed the order passed by the Trial Court
directing the petitioner to pay Rs. 4,500/- being maintenance during the period
of Iddat, Rs. 50,000/- being the amount given to the petitioner by the father of
the 1st respondent and Rs. 90,000/- being the reasonable and fair provision and
disallowed the other amounts allowed by the Trial Court. This M.C. is filed to
quash the orders passed by the Trial Court and the Revisional Court awarding
those amounts.

   3. The 1st respondent has contended that the above Crl. M.C. being in the
nature of a second revision is not maintainable and under the guise of a
proceeding under Section 482 of the Cr. P.C. and this Court cannot reappraise
the evidence and set aside the concurrent findings of fact arrived at by the
Trial Court as well as the Revisional Court. But it is contended by the
petitioner that he is only placing before this Court the errors of law committed
by the Courts below by accepting the evidence on record.

   4. It is well settled that if the lower Courts had committed any error of law
in arriving at the findings or the orders passed by the Courts below have
resulted in manifest injustice, this Court is competent to exercise its inherent
jurisdiction under Section 482 of the Cr. P.C. to rectify the mistake committed
by the lower Courts.

   5. The Counsel for the petitioner submitted that it is clear from the
statement of objects and reasons for the enactment of the Muslim Women
(Protection of Rights on Divorce) Act that the law was enacted to provide the
Muslim divorced women for a reasonable and fair provision for maintenance within
the period of Iddat by her former husband. He also argued that by interpreting
the provisions of Section 3(1) of the Muslim Women (Protection of Rights on
Divorce) Act a Division Bench of this Court in the decision in Aliyar v. Pathu,
1988 (2) KLT 446, has observed as follows :

     "Besides paying maintenance to the divorced wife for the Iddat, former
husband has to provide reasonably and fairly for the future needs of the
divorced wife, i.e., use of the divorced wife after the period of Iddat period
and till her marriage or death."

   6. Therefore, he submitted that what is contemplated under Section 3(1) of
the Act is payment of maintenance to the divorced wife till her re-marriage or
death. He also argued that in this case it is admitted by the 1st respondent
that she got remarried during the above proceedings before the Trial Court and
therefore, she was entitled to reasonable and fair provision provided under
Section 3(1) of the Act only from the date of expiry of Iddat period till her
re-marriage. Therefore, according to him, the award of Rs. 90,000/- being
reasonable and fair provision to the 1st respondent in this case by the Trial
Court and confirmation of that finding by the Revisional Court are absolutely
illegal and unsustainable.

   7. The Trial Court directed the petitioner to pay Rs. 90,000/- being
reasonable and fair provision by calculating maintenance for five years at the
rate of Rs. 1,500/- per mensem. The award of maintenance at the rate of Rs.
1,500/- per mensem to the 1st respondent during the period of Iddat by the
Courts below is not challenged by the petitioner. Therefore, the monthly
requirements for the 1st respondent adopted by the Courts below for arriving at
the reasonable and fair provision payable by the petitioner is perfectly
justified.

   8. Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act
stipulates that the divorced woman is entitled to reasonable and fair provision
to be made and maintenance to be paid by her former husband within the period of
Iddat. Under Section 3(2) of the Act when the reasonable and fair provision and
maintenance due to the divorced woman has not been made or paid, she is entitled
to make an application to the competent Magistrate for an order for payment of
such provision and maintenance. Therefore, the former husband is liable to pay
maintenance and to make reasonable and fair provision within the period of Iddat
and when he fails to pay the maintenance during the period of Iddat and make
reasonable and fair provision within the period of Iddat, then only the divorced
woman is entitled to move the competent Magistrate for a direction for payment
of maintenance during the period of Iddat or reasonable and fair provision as
the case may be.

   9. Sub-section (3) of Section 3 of the Act empowers the Magistrate to direct
the former husband of the petitioner 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.

   10. Though while determining the quantum of fair and reasonable provision
payable to the divorced woman the means of her former husband, the standard of
life enjoyed by her during her marriage and the needs of the divorced woman
should be taken into consideration, the period up to which the needs of the
woman should be considered is not mentioned anywhere in Section 3 of the Act.
The remarriage of the divorced woman is no criterion while determining the
reasonable and fair provision to be paid by the former husband to his divorced
wife. Therefore, the fact that the divorced woman had remarried during the
pendency of the petition filed by her claiming reasonable and fair provision, is
not a factor which determines the date to which she is entitled to fair and
reasonable provision. What is contemplated under Section 3 of the Muslim Women
(Protection of Rights on Divorce) Act is that the former husband should make
reasonable and fair provision to his former wife at the time of the divorce or
at least within the period of Iddat and once the former husband fails to make
the provision without the period of Iddat, his liability to pay reasonable and
fair provision to his divorced wife becomes absolute.

   11. The only fact to be considered by the Magistrate when the liability of
the former husband to make reasonable and fair provision to the divorced wife is
established is the fixation of quantum as contemplated under Section 3(3) of the
Act. Of course, if the wife gets remarried during the pendency of the petition,
that fact also is a factor to be considered by the Magistrate keeping in view
the object and reasons in enacting the provisions of the Muslim Women
(Protection of Rights on Divorce) Act.

   12. In this case, it is clear that the learned Magistrate has taken into
consideration of the fact that the respondent re-married during the pendency of
the proceedings before the Court and limited the quantum of reasonable and fair
provision to five years maintenance at the rate of Rs. 1,500/- per mensem. As
already noted the entitlement and need of the respondent of Rs. 1,500/- per
mensem for her maintenance is not disputed by the petitioner since the quantum
of maintenance awarded by the learned Magistrate during the period of Iddat is
not disputed by the petitioner. Therefore, the contention of the petitioner that
there is manifest injustice in the direction made against him to pay Rs.
90,000/- being reasonable and fair provision to the respondent since she got re-
married during the pendency of the petition and that the learned Magistrate
should have restricted the quantum of reasonable and fair provision to the
amount of maintenance from the date of expiry of the period of Iddat till the
date of her re-marriage, is not sustainable. I find the provision awarded by the
learned Magistrate confirmed by the Revisional Court in this case, is reasonable
and fair.

   13. The Counsel for the petitioner vehemently argued that in spite of the
mandate of Section 3(3) of the Muslim Women (Protection of Rights on Divorce)
Act that the order should be passed within one month of the date of filing of
the application and if there is delay in disposal of the petition within that
period, the reason for the delay should be recorded, the order passed by the
learned Magistrate in this case is only on 18.5.1996, long after the expiry of
the period of one month prescribed under the Act, without offering any
explanation for the delay. Therefore, the order passed by the learned Magistrate
is vitiated and as such the matter should be remitted to the learned Magistrate
after setting aside the orders passed by the learned Magistrate and the
Revisional Court.

   14. Section 3(3) of the Act mandates that when an application is made under
Sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that
the divorced woman is entitled to the claim made by her, make an order within
one month of the date of filing of the application, directing her former husband
to pay the amounts found by him. The proviso to Section 3(3) stipulates that if
the Magistrate finds it impracticable to dispose of the application, he may, for
reasons to be recorded by him, dispose of the application after the said period.
No reason for the delay in disposing of the petition filed by the respondent is
stated in the order passed by the learned Magistrate. In the order passed by the
Revisional Court also nothing is stated about the delay in disposing of the
application by the learned Magistrate.

   15. The Counsel for the petitioner vehemently argued that though the word
'may' is used in Section 3(3) with regard to the disposal of the application, it
is clear from the context that it is a direction to the Magistrate to dispose of
the application within one month and therefore, the direction is mandatory.

   16. The word 'may' though generally connotes as merely an enabling or
permissive power, in certain context, the word is used as a compellable duty
especially when it refers to the power conferred on a Court or a judicial
authority. This principle of interpretation is well settled by the decision of
the Apex Court in Ramji Missar v. State of Bihar, AIR 1963 SC 1088.

   17. From the context the phrase 'Magistrate may make an order within one
month of the date of filing of an application' used in Section 3(3), it is clear
that the word 'may' is used to mean 'shall' especially considering the fact that
the proceedings under Section 3 of the Muslim Women (Protection of Rights on
Divorce) Act is a summary proceeding intended to achieve the object of the
enactment of the Act to give immediate relief to divorce Muslim Woman to whom
the reliefs are not provided by her former husband within the period of Iddat.
But merely because of the failure of the Magistrate to record the reasons for
the delay in disposal of the application, the order passed by the Magistrate
will not be rendered invalid or unsustainable. The failure, if any, on the part
of the Magistrate to give reasons for the delay in disposal of the application
within the time of one month as stipulated in Section 3(3) of the Act should not
cause any harm or prejudice to the beneficiary of the Act in whose favour the
order is passed by the Magistrate, though belatedly. Therefore, this contention
of the petitioner is also not tenable.

   18. It has to be remembered that for a proceeding under Section 3 of the
Muslim Women (Protection of Rights on Divorce) Act the provisions of the Code of
Criminal Procedure are made applicable. Therefore, the formalities and
requirements under the Crl. P.C. for the disposal of the summary proceedings are
to be followed by the Magistrate in disposing of the application under Section 3
of the Act which implied procedural delay in the disposal of the matter. In this
case from the records of the Trial Court and the order passed by the learned
Magistrate it is clear that the petitioner also contributed his share for the
delay in disposing of the application by the learned Magistrate. But it has to
be remembered that the very purpose of the enactment is to give speedy remedy to
divorced woman and disposal of the application filed under Section 3 of the Act
within one month or at the earliest as the case may be, will be beneficial to
both the divorced woman and her former husband and this solutary object of the
enactment should not be lost sight of by the Courts.

   19. The petitioner has contended that the direction passed against him to pay
Rs. 50,000/- alleged to have been paid by the father of the respondent, his
father-in-law, even if admitted, will not come within the ambit of Section
3(1)(d) of the Muslim Women (Protection of Rights on Divorce) Act. Section
3(1)(d) of the Act stipulates that all the properties given to the divorced
woman before or at the time of marriage or after her marriage by her relatives
or friends or the husband or any relatives of the husband or his friends should
be returned to her. In this case, the case of the respondent is that Rs.
50,000/- is given by her father to the petitioner to purchase property in joint
names of the petitioner and the respondent and since no property is purchased in
her name by the petitioner, she is entitled to the return of that amount.

   20. The evidence on record in this case does not support this contention. The
father of the respondent who has allegedly given the amount, is not examined.
The respondent as P.W. 1 has nowhere stated that the amount was given to her.
But on the other hand, her testimony is to the effect that the amount of Rs.
50,000/- is given by her father as loan to the petitioner in the presence of
witnesses. The witnesses are examined as P.Ws. 2 and 3. P.W. 2 is the maternal
uncle of the respondent. He has deposed that Rs. 50,000/- is advanced to the
petitioner as loan. P.W. 3 had deposed that he cannot say whether the amount was
given to the petitioner as a loan or gift. Therefore, it is clear that there is
no tangible evidence on record to establish that the amount of Rs. 50,000/- is
given by the father of the respondent to the petitioner as gift so as to entitle
her to get back the amount under Section 3(1) (d) of the Act. If it is a loan
advanced by the father of the respondent to the petitioner, he may have his
civil remedy to recover the amount from the petitioner. By no stretch of
imagination the amount of Rs. 50,000/- alleged to have been paid by the father
of the respondent to the petitioner can be construed as a gift by her father to
the petitioner coming within the ambit of Section 3(1)(d) of the Act. Therefore,
the order passed by the learned Magistrate directing the petitioner to pay Rs.
50,000/- to the respondent under Section 3(1)(d) of the Act is absolutely
illegal and resulted in manifest injustice. Therefore, the finding of the
learned Magistrate confirmed by the Revisional Court directing the petitioner to
pay Rs. 50,000/- under Section 3(1)(d) of the Act being illegal and resulted in
miscarriage of justice, is liable to be set aside.

   21. In view of what is stated above, this Crl. M.C. is allowed in part. The
direction to pay Rs. 50,000/- by the petitioner to the respondent under Section
3(1)(d) of the Muslim Women (Protection of Rights on Divorce) Act is set aside
and the order passed by the Revisional Court confirming the order passed by the
Magistrate regarding payment of maintenance during the Iddat period and
reasonable and fair provision is confirmed.