Hasenara Begam vs Fazar Ali on 18 July, 2001

    Hasenara Begam vs Fazar Ali on 18/7/2001

ORDER

   B.B. Deb, J.

   1. By this petition under Section 397/401 of the Criminal Procedure Code, the
petitioner assailed the impugned order dated 31-1-1998 passed by the learned
Single Judge, West Tripura, Agartala in Criminal Revision No. 28(4) 1996 filed
by the respondent herein against the order dated 7-8-1996 passed by the learned
Judicial Magistrate, 1st Class, Sonamura, West Tripura, in Misc. Case No. 30 of
1995.

   2. The petitioner being the married wife of the respondent filed a
maintenance petition under Section 125, Cr. P.C. before the learned Judicial
Magistrate, 1st Class Sonamura, West Tripura in Misc. Case No. 30 of 1995. The
husband respondent contested the maintenance petition contending, inter alia,
that during the pendency of the case the husband respondent divorced the wife
petitioner and, as such, in view of the related provision of the Muslim Women
(Protection of Rights on Divorce) Act, 1986, the maintenance petition under
Section 125 Cr. P.C. is not maintainable. The learned Magistrate held that the
petitioner being a divorced wife of the respondent was enti tled a maintenance
of Rs. 3,000/- only for the Iddat period and also Rs. 7500/- as moharana
(Dowers). Aggrieved the husband preferred Criminal Revision before the learned
Sessions Judge, and the learned Sessions Judge vide order dated 31-1-1998
dismissed the revision. During the revision the present petitioner (wife) laid
her claim to be paid reasonable and fair "provision" and "maintenance" to be
paid by her husband for her whole life but not for xx within Iddat period. But
the learned Sessions Judge, rejected the claim as she did not prefer revision
against the order of the learned trial Court. Hence, this present revision.

   3. Though the petition is drafted and styled to be criminal revision under
Section 397/407 Cr. P.C. before the commencement of the hearing, the learned
counsel for the petitioner humbly approached the Court to treat the petition to
be one under Section 482 Cr. P.C. in order to secure ends of justice on the
ground that this petition involves substantial question of law relating to the
interpretation of Section 3 of the Muslim Women (Protection of Rights on
Divorce) Act, 1986, (hereinafter called "the Act" of 1986).

   4. I have heard the learned counsel of both the parties and perused the
petition filed by the divorced wife - petitioner and on perusal of the petition
and the related provisions of the Act 1986, I am convinced to exercise inherent
power under Section 482 coupled with the provision of Section 483 of the Cr.
P.C. to resolve the question of law posed before me in this petition.

   5. By this petition the petitioner claims that she being the divorced Muslim
woman has the right to be allowed the reasonable provisions and maintenance from
her former husband, the respondent, for her whole life or till her re-marriage
but that must be paid within iddat period. But the learned Courts below allowed
her the maintenance for iddat period.

   6. The main question posed to be resolved is whether in view of Section 3 of
the Act, 1986, the former husband is under statutory obligation to make
reasonable and fair "provision" and "maintenance" to his divorced wife for the
iddat period or for the whole life and to be paid within iddat period? For
convenience sake the related provision of Section 3(1) of the Act is extracted
below :

     3. Mahr or other properties of Muslim woman to be given to her at the time
of divorce :- (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 maintain 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) to d) ***** ***** *****

     Section 3(1)(a)

     (emphasis supplied)

   7. The learned counsel for the petitioner submits that Clause (a) of Sub-
section (1) of Section 3 of the Act does not restrict the payment of maintenance
for Iddat period. It prescribes that reasonable and fair provision and
maintenance are to be made by the former husband to the divorced wife within
iddat period but for her entire life or till she re-marriage.

   8. On the other hand, Mr. M. Kar Bhowmik, learned senior counsel for the
respondent vehemently opposes the said contention and submits that none should
approach the Court to re-write and statute, substituting the term "for the life"
for the term "within iddat period". According to the learned counsel for the
respondent the petitioner being divorced wife is entitled to be paid the
maintenance for her iddat period and that was rightly given by the learned
Courts below.

   9. The learned counsel for the petitioner placed reliance on a decision given
in Arab Ahemaclhia Abdulla v. Arab Bali Mohmuna Saiyadbhai reported in AIR 1988
Gujarat 141 and submits that in view of Section- 3(1)(a) of the Act, the
petitioner is entitled to maintenance for her contemplated future needs lor her
entire life and that is not confined to the period of iddat, but that must be
paid within the period of iddat. The Hon'ble Gujarat High Court interpreting
Section 3(1)(a) of the Act held that the term within iddat period mandates that
payment of maintenance for whole life must be paid during iddat period. Learned
counsel for the petitioner also placed reliance on a decision given in Shaklla
Parveen v. Haider Ali alia Haidar, reported in 2000 Calcutta Criminal Law
Reporter 201. According to the Hon'ble Calcutta High Court, the former husband
is to provide the divorced wife the reasonable and fair provision and
maintenance in advance for meeting the anticipated needs and requirements for
her whole life and that must be made and paid within Iddat period. The learned
counsel for the petitioner, strongly placed reliance upon a Full Bench decision
rendered by the Punjab and Haryana High Court in Kaka v. Hassan Bano, reported
in 1998 (1) Indian Law Reports (Punjab and Haryana Series) 267 and submits that
the Hon'ble Punjab and Haryana High Court in that Full Bench decision gave a
correct Interpretation of Section 3(1)(a) of the Act, and according to the
learned counsel for the petitioner, other interpretation contrary to one adopted
by the Punjab and Haryana High Court would defeat the very purpose of
entitlement of divorced woman for her maintenance during lifetime. I have
carefully perused the Full Bench decision of Punjab and Haryana High Court and
it appears that the Court dealt with the practical needs and real financial
supports required by a divorced Muslim woman to maintain her future life or till
her re-marriage and that anticipated needs and requirement are to be paid by the
former husband to his divorced wife within iddat period. According to the
decision in Kaka's case (supra) allowing maintenance for the period of iddat
only would be nothing but putting the divorced wife in the street which cannot
be the desire of any religious mandate and having taken care of the practical
requirement of the divorced wife, the Parliament made the law requiring the
husband to make provision and Marriage Act for her whole life but it should be
paid within iddat period.

   10. Being confronted, the learned senior counsel Mr. M. Kar Bhowmik, for the
respondent came forward with his argument with the help of Full Bench decision
of the Andhra Pradesh High Court in Usman Khan Bahamani v. Fathimunnisa Begum,
reported in AIR 1990 Andhra Pradesh 225 : 1990 Cri LJ 1364. Though in the
reported case majority judgment delivered by Hon'ble Justice Sardar All Khan and
Hon'ble Justice Bhaskar Rao delivered dissenting judgment but on the point of
interpretation of Section 3(1)(a) of the Act, 1986, so far maintenance is
concerned, there is no divergent views. All the Hon'ble Judges concurred
regarding the interpretation of "maintenance" as available in Section 3(1)(a) of
the Act. According to the Full Bench decision of Andhra Pradesh High Court,
liability of the former muslim husband to pay maintenance to his divorced wife
is coniined only for and during the period of iddat. In Usman Khan Bahamani
(supra) the Hon'ble Andhra Pradesh High Court discussed the ratio of the
celebrated decision rendered by the Hon'ble Apex Court in Shah Bano Begum case
AIR 1985 SC 945 : 1985 Cri LJ 875, but that decision stood defused by the
subsequent legislation of the Muslim Women (Protection of Rights on Divorce)
Act, 1986 and a bare reading of the Act of 1986 ex facie reveals, according to
the Andhra Pradesh High Court, that the divorced Muslim woman is entitled to be
paid maintenance from her former husband only for the iddat period and that must
be paid within the iddat period itself. In Usman Khan (supra) the Hon'ble Andhra
Pradesh High Court in the majority view held that the words "provision" and
"maintenance" appeared in Section 3(1)(a) of the Act conveying the same meaning
cannot be treated for two different purposes while the minority view in that
case rendered by Hon'ble Justice Bhaskar Rao held that the terms "provision" and
"maintenance" used in Section 3(1)(a) of the Act carry different meaning for
different purposes and for different periods. According to the minority view
former husband is to make fair and reasonable "provision" for his divorced wife
for her whole life or till her re-marriage, while so far "maintenance" is
concerned i.e. the limited period of iddat.

   11. The aforesaid divergent views expressed by the Full Bench of two Hon'ble
High Courts, one sitting at Chandigarh and another at Hyderabad though
pursuasive to this Court, apparently it becomes very difficult to reconcile the
both and, as such, before evaluating the acceptability of either, I propose to
proceed with indepth study of the scheme of the Act of 1986.

   12. Section 3 of the Act, 1986 consists of 4 Sub-sections. Sub-section (1)
having 4 clauses deals with the payment of mahr (dowry) provision and
maintenance of the divorced wife and the children and also with the personal
property of the wife. Sub-section (2) deals with the procedure to be adopted in
case of failure of the husband to comply with the provision of Sub-section (1)
and Sub-section (3) deals with the power of the Magistrate for compelling the
husband to make arrangement for reasonable and fair provision and maintenance
for his divorced wife and children within the iddat period and Sub-section (4)
deals with the process of execution to be adopted by the learned Magistrate for
compliance of order passed under Sub-section (2) of Section 3. Section 4(1) of
the Act takes care of the contingencies where a divorced Woman who has not re-
married and is unable to maintain herself after the Iddat period, the Magistrate
being moved by the wife may direct the relatives of the wife who would inherit
her property to pay reasonable and fair maintenance to her. SubSection 4(2)
deals with the contingencies where the divorced wife is unable to maintain
herself and she has no relatives as classified under Sub-section (1) to provide
her maintenance the Magistrate on being moved may direct the State Wakf Board to
pay reasonable maintenance to the divorced wife as determined by the Magistrate.

   (Emphasis supplied)

   13. Section 3 cannot be read in isolation of Section 4, to have a harmonious
interpretation of the provisions of both the Sections, it transpires that the
Parliament very consciously has inserted the term "to make provision" in Section
3(1) while deliberately avoided the use of the said term "to make provision" in
Section 4 of the said Act and, as such, it cannot be legally held that the term
"to make provision" is a substitute for the term to pay maintenance" nor the
said two terms can be held to be alternative of each other, but in my considered
opinion, the term "to make provision" is independent one and only is applicable
in Section 3(1) of the Act, and, as such, only the former husband of a Muslim
woman is under statutory obligation "to make provision" for the whole life of
his divorced wife or till she remarriage, while his liability to pay maintenance
is limited for iddat period.

   14. From a combined reading of the aforesaid provisions it is crystal clear
that the former husband of a Muslim divorced woman is to pay maintenance to his
divorced wife for iddat period and after the expiry of iddat period if necessity
continues for her maintenance, liability shifts upon her relatives as classified
in Section 4(1) of the Act and in absence whereof upon the State Wakf Board
pursuant to Section 4(2) of the Act. But, so far "making provision" is concerned
it is only the former husband who is to satisfy the requirement for his divorced
wife for her entire life or till her re-marriage and that must be fulfilled
within the iddat period.

   15. Both the provisions embodied under Sub-sections (1) and (2) of Section 4
of the Act deal with the payment of maintenance and maintenance alone and never
deal with "making any provision". Under Section 125 of the Cr. P.C. the
husband's liability is confined to maintenance only and there is no stipulation
for "making provision", but in "the Muslim Women (Protection of Rights on
Divorce) Act, 1986" in Section 3 the Parliament very deliberately used different
terms so far the liabilities of the former husband is concerned. The former
husband is put under obligation by the Act to make provision and to pay
maintenance (underline emphasised) and according to the dissenting judgment of
Hon'ble Mr. Justice B. Rao of Andhra Pradesh High Court in Usman Khan Bahamani
(supra), both the terms as emphasised above cannot convey same and identical
meaning. Only Section 3 of the Act directs the husband to make "provision" and
pay "maintenance" to his divorced wife while neither Section 4 nor Chapter IX of
Cr. P.C. impose any such obligation/liability upon anybody to make any
"provision for divorced woman.

   16. From the preamble of the Act of 1986, it reveals that the intendment of
"the Muslim Women (Protection of Rights on Divorce) Act, 1986" has not been
confined to the matter relating to "maintenance" only as the preamble runs as
follows :

     An Act to protect the rights of Muslim women who have been divorced by or
have obtained divorce from their husbands and to provide for matters connected
therewith or incidental thereto.

   17. The Preamble takes care of protecting the rights of divorced Muslim women
and "to provide for matters connected therewith or incidental thereto". The
needs and requirement of a divorced Muslim woman are not confined to maintenance
and maintenance alone. Apart from the requirement of fooding, clothing, medicine
the divorced woman may require the minimum residential accommodation and least
arrangement for proper utilisation of leisure and recess and proportionate fund
for discharging religious and social obligations etc.

   18. Unfortunately, the Act of 1986 does not define "provision" and/or
"maintenance". The word "maintenance" is also remained not defined under the
Criminal Procedure Code.

   19. Having gone through the meaning of the term "provision" as have been
given in the different English Dictionaries it reveals that the term "provision"
of course, with reference to the context in hand, conveys meaning which include
supply of necessaries of households, "act of providing or supplying something
for future needs, "measures/step taken to mix some contingencies which may arise
in future," "shorter the cause unforsene future expenses.

   20. Having regard to the aforesaid, it can be conveniently held that Section
3 of the Act stipulates that the former husband of the divorced Muslim woman has
to "make provision" and "pay maintenance" within the iddat period and after the
expiry of the Iddat period and liability "to pay the maintenance" is shifted
upon the relatives classified and referred to under Section 4(1) and in case of
non-availability of the relatives as stipulated under Section 4(1) to the State
Wakf Board under Section 4(2) of the Act, but the Parliament deliberately
omitted terms "provision" in both Sub-sections of Section 4 of the Act which
would lead any pruden man to form an opinion that so far "making provision" is
concerned the liability remains with the former husband by the implicit
significance of deliberate mentioning of the same in Section 3 while consciously
omitting in Section 4 and this cannot be for any limited period. The divorced
Muslim woman obviously may require minimum residential accommodation and also
proportionate fund for proper utilisation of leisure and recess and also to
discharge her social and religious obligation in addition to her needs for
fooding, clothing and medicare and, as such in my considered opinion, the former
husband is not absolve from his statutory liability from making with the
provision for his divorced wife so far the minimum necessity of residential
accommodation, fund for proper utilisation of leisure and recess and to
discharge religious and social obligation even after iddat period.

   21. In the result, in view of the legal implications and consequences of
combined study of Sections 3 and 4 of the Act as a whole, I am of the considered
opinion that the former Muslim husband is under legal obligation to "make
provision" for his divorced wife as elaborated above for her whole life or till
her re-marriage and should be made within iddat period having regard to the
status and financial condition of both and so far the liability to pay
maintenance is concerned, it is confined for iddat period though must be paid
within iddat period.

   22. Though the decision of Hon'ble Punjab and Haryana High Court in Kaka v.
Hassan Bano (supra) helped me much, yet respectfully I am constrained to differ,
and I am thankfully accepting the ratio of the dissenting judgment of Mr.
Justice B. Rao of Andhra Pradesh High Court in Usman Khan Bahamani (supra).

   23. In the result, the petition succeeds as indicated above. The case is
remitted back to the learned trial Court. The learned Trial Court is directed to
decide the requirement of "provision" to be made by the respondent (former
husband) and disposed of the case in accordance with the provision of Section
3(3) of the Act and having regard to the observation and decision made above.