Majitha Beevi vs Yakoob on 9 March, 1999

    Majitha Beevi vs Yakoob on 9/3/1999

JUDGMENT

   K.A. Mohamed Shafi, J.

   1. The petitioner in M.C. No. 31/92 on the file of the Judicial First Class
Magistrate's Court, Varkala is the revision petitioner. The order dated
30.12.1992 is under challenge.

   2. The revision petitioner filed the M.C. before the lower Court claiming
certain amounts under Section 3 of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 frbm her former husband, the respondent herein. The marriage
between the petitioner and the respondent under Muslim Law on 22.6.1972, the
birth of three children in that wedlock and the divorce of the petitioner by the
respondent on 1.7.1991 are admitted. The petitioner claimed Rs. 1,500/- as
maintenance during the period of iddat, Rs. 51/- as dower, Rs. 25,000/- being
the value of the gold ornaments belonging to her and appropriated by the
respondent, Rs. 1,50,000/- being the value of the property belonging to the
petitioner and sold and appropriated by the respondent, and Rs. 1 lakh being
reasonable and fair provision. Thus a total amount of Rs. 2,76,551/- is claimed
by the petitioner from the respondent.

   3. The respondent contended that the petitioner is not entitled to any of the
claims made by her and he is not liable to pay any amount to the petitioner on
any of the claims made in the petition.

   4. The lower Court after trial found that the petitioner is entitled to Rs.
1,500/ - as maintenance during the period of iddat at the rate of Rs. 500/ - per
mensem under Section 3(l)(a) of the Act, Rs. 51/- as unpaid dower under Section
3(l)(c) of the Act and disallowed the other claims made by the petitioner.
Aggrieved by the order passed by the lower Court, the petitioner has preferred
this revision petition before this Court.

   5. Though in the revision petition the petitioner has contended that she is
entitled to Rs. 1 lakh being reasonable and fair provision, Rs. 1,50,000/- being
the value of her properties appropriated by the respondent by selling the
properties, and Rs. 25,000/- being the value of 10 sovereigns of gold ornaments
belonging to her and appropriated by the respondent, it is clear from the
evidence on record and the finding arrived at by the lower Court in point No. 4
that the petitioner has not adduced any satisfactory evidence to prove that the
respondent has appropriated that value of the two items of properties amounting
to Rs. 1,50,000/- and Rs. 25,000/- being the value of 10 sovereigns of gold
ornaments belonging to her and, therefore, the lower Court rightly found that
the petitioner is not entitled to claim those amounts from the respondent.

   6. What remains for consideration is whether the claim made by the petitioner
for Rs. 1 lakh as reasonable and fair provision under Section 3(1) (a) of the
Act against the respondent is sustainable and whether the lower Court is
justified in disallowing that claim made by the petitioner.

   7. The respondent has contended that the revision petitioner had filed O.S.
18/92 before the Family Court, Thiruvananthapuram claiming maintenance from the
respondent for himself and children and the Family Court after finding that the
revision petitioner and the children are residing in the house belonging to the
respondent and they are enjoying the properties belonging to the respondent held
that they are not entitled to any maintenance from the respondent. A certified
copy of the judgment passed by the Family Court, Thiruvananthapuram dated
30.1.1993 in O.S. 18/92 is produced alongwith Crl. M.P. No. 4399/98 in this Crl.
R.P. According to the respondent the judgment passed by the Family Court in O.S.
18/ 92 is not challenged in appeal or revision and the same has become final.
Therefore, according to the dismissal of O.S. 18/92 filed by the revision
petitioner and the children claiming maintenance from the respondent by the
Family Court after holding that the revision petitioner and the children are in
possession and enjoyment of the house and properties belonging to the
respondent, disentitles the revision petitioner from claiming any reasonable and
fair provision from the respondent in this case. Though the judgment passed by
the Family Court in O.S. 18/ 92 establishes that the revision petitioner has
been in possession and enjoyment of the properties belonging to the respondent,
that fact will not debar her from claiming reasonable and fair provision from
the respondent which she is entitled to under Section 3(l)(a) of the Muslim
Women (Protection of Rights on Divorce) Act.

   8. Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act
reads as follows :

     "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 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 relatives or friends or the husband or any relatives
of the husband or his friends."

   9. It is clear that under Section 3(1) (a) of the Act the divorced woman is
entitled to reasonable and fair provision to be made and maintenance to be paid
to her within a period of iddat from her former husband. It has to be noted that
the provision of Section 3(l)(a) of the Act is enacted in tune with the Quranic
mandate contained in verses 236 and 241 of Chapter II.

     Verse 236 of Chapter II stipulates that:

     "There is no blame on you if you divorce woman before consummation or.
before fixation of the dower, but bestow upon them a suitable gift, the wealthy
according to his means and the poor according to his means. A gift of a
reasonable amount is due from those who wish to do the right things."

     Verse 241 of Chapter II mandates that:

     "For divorced woman provision should be made on a reasonable scale and this
is the duty on the righteous."

   10. This fact is evident from the statement of objects and reasons to the
Muslim Women (Protection of Rights on Divorce) Act, 1986 which among other
things states that a Muslim divorced woman shall be entitled to reasonable and
fair provision and maintenance within the period of iddat by her former husband.
Therefore, the fact that the entitlement of a Muslim divorced woman to a
reasonable and fair provision from her former husband be made during the period
of iddat is beyond dispute.

   11. In this case the contention of the respondent-former husband is that his
earnings while working abroad were enjoyed by the revision petitioner - his
former wife and he has purchased properties in the name of the revision
petitioner while he was abroad. He has also contended that he lost his job as
the revision petitioner prevented him from going abroad by taking his travel
documents and therefore he has no job or income to pay anything to the revision
petitioner. He also contended that the properties purchased by him utilising his
funds in the name of the revision petitioner alone, in the joint names of the
revision petitioner and himself and in his own name are in the possession of the
revision petitioner and therefore as the revision petitioner is in possession
and enjoyment of much more property belong- ing to him than what he would have
been liable to pay as reasonable and fair provision to the revision petitioner,
she is not entitled to claim nor he is liable to pay anything on that count. The
lower Court found that the evidence on record established that by acquiring
properties by the documents evidenced by Exts. Dl to D7 in the name of the
revision petitioner the respondent has made reasonable and fair provision for
her future living and therefore she cannot claim any amount from him towards
reasonable and fair provision.

   12. Counsel for revision petitioner vehemently submitted that Clauses (a) and
(d) of Sub-section (1) of Section 3 of the Act stand on entirely different
footing. While Clause (a) of Section 3(1) stipulates that a divorced woman is
entitled to reasonable and fair provision and maintenance to be made and paid to
her within the period of iddat by her former husband, Clause (d) of that sub-
section stipulates that she is entitled to all the properties given to her
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.
Therefore, Counsel for revision petitioner vehemently argued that in view of
Clause (d) of Sub-section (1) of Section 3 a divorced woman is entitled to all
the properties given to her before or at the time or after her marriage by her
relatives or friends or the husband or any relatives of the husband or his
friends. Hence he submitted that the properties acquired by the respondent in
the name of the revision petitioner while they were living together as husband
and wife cannot be reckoned while determining the reasonable and fair provision
payable by the former husband to his divorced woman and the divorced woman is
entitled to all the properties given by her former husband at the time of
marriage or during the subsistence of marriage as well as reasonable and fair
provision from him since Clauses (a) and (d) of Sub-section (1) of Section 3
clearly deal with different and distinct matters.

   13. It is true that Clause (d) of Sub-section (1) of Section 3 of the Act
provides that a divorced woman is entitled to all the properties given to her
before or at the time of or after her marriage by her relatives or friends or
the husband or any relatives of the husband or his friends. In the decision
reported in Abdul Sathar v. Arifa Beevi, 1991 (1) KLT SN Case No. 22=I (1991)
DMC 275, a Single Judge of this Court has held that a divorced woman is entitled
to get back the Rolex watch gifted by her paternal uncle to her former husband
since it is given as a consideration of his marriage with her and it is given in
trust to him, the wife being the beneficiary.

   14. In this case, it is admitted by the revision petitioner as P.W. 1 that
while the respondent was working abroad he has purchased out of his own funds
three items of properties in the name of the revision petitioner as evidenced by
Exts. D4, D5 and D7 and two items of properties jointly in the names of the
revision petitioner and the respondent as evidenced by Exts. D3 and D6.
According to the revision petitioner as P.W. 1 the property acquired as per Ext.
D4 is 9 cents of land, the property acquired as per Ext. D5 is 10 cents and the
property acquired as per Ext. D7 is 27 cents of land. She also deposed that the
property acquired as per Ext. D3 jointly is a paddy field measuring 45Vi cents
and the property acquired as per Ext. D6 jointly is garden land of an extent of
30 cents. P.W.I has admitted that apart from the above properties the respondent
has got 1.38 acres of land obtained as his family property wherein the
respondent has constructed a house in which the revision petitioner and her
children are staying. It is also deposed by P.W. 1 that she is in possession and
enjoyment of the 1.38 acres of property belonging to the respondent and OS.
186/91 is filed by the respondent against the revision petitioner before the
Sub-Court, Attingal for eviction of the petitioner from that house and property,
which was pending at the time of disposal of M.C. 31/92 by the lower Court. The
revision petitioner has failed to adduce any evidence to establish that the
respondent has got any other property apart from the aforesaid properties or any
other source of income. Therefore, from the evidence available on record and as
admitted by P.W. 1 it is clear that three items of properties measuring 27
cents, 9 cents and 10 cents respectively are standing exclusively in the name of
the revision petitioner and she is entitled to half right of 45 1/2 cents of
paddy field and 30 cents of garden land jointly with the respondent and the
respondent has got exclusive right in 1.38 acres of land with house situated
therein which is in the possession and enjoyment of the revision petitioner in
respect of which a suit for recovery of possession filed by the respondent
against the revision petitioner is pending before the Court.

   15. From the aforesaid Quranic injunction and the provisions of Section 3(1)
of the Muslim Women (Protection of Rights on Divorce) Act it is clear that the
primary object of direction to the former husband to make fair and reasonable
provision for the divorced woman is to provide for her maintenance after
divorce. The quantum of provision has to be made by the former husband in
accordance with his means and standard of living that is enjoyed by the divorced
woman during the subsistence of the marriage. The mandate to make reasonable and
fair provision is not in any way intended to harass the former husband or to
enable the divorced woman to make any unlawful gain or unjust enrichment out of
the divorce. It is a fair and equitable provision to be made by the former
husband to his divorced wife. Even though reasonable and fair provision has to
be made by the former husband to the divorced woman within the period of iddat
yet if the husband has already made such reasonable and fair provision in favour
of the divorced woman even during the subsistence of their marriage it certainly
is a factor to be taken into account while considering whether the former
husband is liable to pay any and what reasonable and fair provision to the
divorced woman.

   16. In this context the contention of the revision petitioner that in view of
Section 3(1) (d) of the Muslim Women (Protection of Rights on Divorce) Act
divorced woman is entitled to all the properties given to her before, at the
time or after the marriage by the husband or any relatives of the husband or his
friends, the properties admittedly given by the respondent to the revision
petitioner during the subsistence of her marriage will come within the ambit of
Clause (d) of Sub-section (1) of Section 3 of the Act and as such those
properties standing in the name of the revision petitioner cannot be taken into
account while considering the eligibility of the revision petitioner for
reasonable and fair provision from the respondent and, therefore, the lower
Court is in absolute error in disallowing her claim for reasonable and fair
provision under Clause (a) of Sub-section (1) of Section 3.of the Act is not
sustainable. The properties referred to in Clause (d) of Section 3(1) of the Act
cannot be construed as properties in its widest sense, as the revision
petitioner wants in this case. The word 'property' occurring in Clause (d) of
Section3(l) should be considered in a strict and restricted sense than the wide
amplitude given to the word in common parlance. If the word 'property' in
Section 3(l)(d) of the Act is interpreted so widely as contended by the revision
petitioner so as to embrace the vast properties or the entire properties
acquired by the former husband in the name of his divorced wife during the
subsistence of the marriage, it will jeopardise the very intentment of providing
reasonable and fair provision by the former husband to his divorced wife. From
the Quranic injunction and the provisions of Section 3(1) of the Act referred to
above, it is patent that the idea behind the former husband providing reasonable
and fair provision at the time of divorce to his divorced wife is to protect her
from destitution and vagrancy due to the divorce. Therefore, by a reasonable,
pragmatic and harmonious interpretation of the provisions of the Clauses (a) and
(d) of Sub-section (1) of Section 3 of the Act, it is clear that Clause (d)
deals with the properties given by the former husband to the divorced wife
during the subsistence of the marriage by way of gift or otherwise. But Clause
(d) of Sub-section (1) of Section 3 does not take in the entire or the major
portion of the property acquired by the husband during the subsistence of the
marriage in the name of his wife due to his own reasons for such acquisition
without the intention to give the property to the wife as her exclusive
property. In this case it is clear from the evidence of the respondent as R.W. 1
as well as the evidence of the revision petitioner herself as P.W. 1 that after
the marriage while the respondent was abroad he has been sending his earnings to
the revision petitioner and she has been meeting the expenses of the family
throughout and the properties were acquired in the individual name of the
respondent and in the joint names of the revision petitioner and the respondent
to be enjoyed by the family and not as a gift or separate property of the wife.
Therefore, the properties acquired in the name of the revision petitioner
exclusively and in the joint names of the revision petitioner and the respondent
by utilising the funds of the respondent will not assume the character of
property given by the husband before, at the time of or after the marriage to
the revision petitioner so as to attract the provisions of Section 3(l)(d) of
the Act as contended by the revision petitioner.

   17. Considering the tradition of the Prophet when the wife of Thabit-ibn-Qais
sought divorce from her husband in the Khul - a form, the Prophet asked her as
to whether her husband had given any property to her. When she replied that he
has given a garden to her, the Prophet asked her to return that property to her
husband and obtain divorce. This instance from the tradition of the Prophet sets
an example as to how the property of the husband in the hands of the wife should
be treated at the time of divorce though it is not done directly while
considering the factor for determining the reasonable and fair provision to be
paid to the divorced wife by her former husband. Even though it is well settled
that for payment of reasonable and fair provision the divorced woman need not be
unable to maintain herself and even if she is in affluent circumstance, she is
entitled to claim reasonable and fair provision from her former husband, the
consideration being the means of the former husband and the standard of living
of the divorced wife during the subsistence of the marriage.

   18. In the decision in Ahammed v. Aysha, 1990 (1) KLT 172=11 (1990) DMC110,
this Court has held that even millionaire wife who lives in luxury and affluence
is certainly entitled to claim the reliefs provided under Section 3(1) of the
Act from her former husband.

   19. But all the above principles and factors will not come to the rescue of
the evision petitioner in this case with regard to her claim for fair and
reasonable provision from her former husband, the respondent herein. As it is
proved that a good or major portion of the property acquired by the respondent
with his own funds is standing in the name of the revision petitioner
exclusively and jointly with the respondent as her personal and individual
property, the properties already given by the respondent to the revision
petitioner will be in excess of the fair and reasonable provision that can be
directed to be made by the respondent in this case in favour of me revision
petitioner, especially considering the evidence of P.W. 1 that over and above
the properties standing in her name and in the joint names of herself and the
respondent, the only other property belonging to the respondent is 1.38 acres of
house and garden now in the possession and enjoyment of the revision petitioner,
in respect of which a suit for recovery of possession is filed by the respondent
against her. Therefore, the lower-Court is perfectly justified in finding that
in view of the fact that the revision petitioner is in possession of the
properties belonging to the respondent as aforesaid, she is not entitled to
claim any reasonable and fair provision from the respondent, and has to be
upheld.

   20. The respondent has vehemently contended that he has absolutely no means
to pay any amount to the revision petitioner and on the other hand, the revision
petitioner has got properties and means fetching large amount. This contention
of the respondent is not sustainable. The scheme of the Act itself established
that the primary concern is to protect the divorced woman from destitution and
vagrancy and that primary responsibility is upon her former husband. In case the
former husband is not in a position to make the payment, the liability is cast
upon her relatives to maintain till her death as provided in Section 4(1) of the
Act and in case the relatives mentioned in Section 4(1) of the Act are incapable
to maintain the divorced woman, the liability is cast on the State Wakf Board to
maintain her under Section 4(2) of the Act. But the primary liability of the
husband to make the fair and reasonable provision as contemplated under Section
3(1) (a) of the Act will not be absolved so long as he has got the means to pay
the same.

   21. What follows from the foregoing discussions is that the liability of the
former husband to make reasonable and fair provision in favour of his divorced
wife within the period of iddat is absolute. The quantum of reasonable and fair
provision has to be determined in accordance with the means of the former
husband and the standard of living enjoyed by the divorced wife during the
subsistence of the marriage. The fact that the divorced wife has got means for
her livelihood or that she is in affluent circumstances will not absolve her
former husband from his liability to pay reasonable and fair provision to her.
The prime object of directing the former husband to make reasonable and fair
provision in favour of his divorced wife is to save the divorced wife from
destitution and penury and it is not intended to harass or harm the former
husband or to enable divorced wife to obtain any unlawful gain, undue advantage
or unjust enrichment from her former husband on account of divorce. The
liability cast upon the former husband is a just and equitable provision in line
with the Quranic injunctions. Therefore, if the former husband has given or
provided sufficient property to the divorced wife during the subsistence of the
marriage satisfying the requirements of the reasonable and fair provision as
provided under Section 3(l)(a) of the Muslim Women (Protection of Rights on
Divorce) Act, the divorced woman is not entitled to claim reasonable and fair
provision from her former husband over and above the properties already given to
her by her former husband.

   22. In this case, it is admitted by the revision petitioner as P.W. 1 and
also proved by the documentary evidence adduced by the respondent that the
respondent has acquired properties in the name of the revision petitioner by
utilising his own funds much in excess of the reasonable and fair provision he
is liable to make in favour of the revision petitioner at the time of divorce.
The revision petitioner cannot claim the immovable properties acquired by the
respondent in her name from out of his own funds as the property which she is
entitled to under Clause (d) of Sub-section (1) of Section 3 of the Act. Under
the circumstances the lower Court is perfectly justified in finding that the
revision petitioner is not entitled to any amount by way of fair and reasonable
provision under Section 3(l)(a) of the Act from the respondent and that finding
has to be confirmed.

   In view of my above findings this revision petition is devoid of any merit.
Hence the order passed by the lower Court is confirmed and this revision
petition is dismissed.