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Shakila Parveen-vs-Haider Ali Alias Haider on 8 March, 2000

Calcutta High Court Shakila Parveen-vs-Haider Ali Alias Haider on 8 March, 2000
Equivalent citations:(2001) 2 CALLT 413 HC, I (2001) DMC 691
Author: B Panigrahi
Bench: B Panigrahi

JUDGMENT

B. Panigrahi, J.

1. This revision is directed against the order passed by the 5th Judicial Magistrate, Sealdah in a proceeding under section 3 of the Muslim Women (Protection of Rights on Divorce) Act in M-37/93. The opposite party No. 1 was the husband of the revision-petitioner and their marriage was solemnised on 5th of May. 1991 as per Muslim rites and customs against Den Mehr amount of Rs. 2500. The said Marriage was entered into Nikah Nama in the office of the Muslim Marriage Registrar and Kazi.

2. The petitioner has claimed to have given some dowry at the time of their marriage. Sometimes after marriage their matrimonial life did not end peacefully and, therefore, the petitioner, however, was forced to leave the private respondent’s house in February. 1993. Thereafter a case was registered under section 498A and 406 IPC. At the moment the case under section 498A is still pending. The revision-petitioner filed an application under section 125 of the Code of Criminal Procedure on 18.5.93 against the opposite party No. 1 and the learned Magistrate granted maintenance of Rs. 800/- per month for Iddat period from 18.5.93 to 15.7.93 over and above Den Mehr amount of Rs. 2500/-. The petitioner being aggrieved by the said order has preferred this revision.

3. Although the copy of the revisional application was served upon the private respondent but none has appeared on his behalf.

4. The learned advocate appearing for the revision-petitioner has submitted that the learned trial Court has wrongly construed the provisions of section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The expression such as “all reasonable and fair provisions and maintenance to be made and to be paid to her” should be construed liberally and it should not be interpreted very rigidly. It has been further stated that the provisions “It shall indicate that something should be provided in advance for meeting some needs apart from the maintenance of a divorced Muslim lady.” The applicability of provision of section 125 Cr.PC to a Muslim woman had however, appeared for consideration before the Hon’ble Supreme Court. In the above decision the Hon’ble Supreme Court has unequivocally held that the provisions of section 125 of the Code of Criminal Procedure override the Personal Law. Thereafter the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted in the parliament. The provision of sub-section (3) of section 127 Cr.PC was also interpreted by a Division Bench of Allahabad High Court in the case of Smt. Hamidan v. Mohd. Rafiq reported in 1994 Crl. LJ 348 wherein it has been held as follows:

“We find that the appellant has not challenged the finding recorded by the Family Court that the appellant has been divorced by the respondent. So the matter relating to enhancement of maintenance allowance is to be considered on the basis of this finding. According to the provisions of section 125(3)(c) the right to receive maintenance allowance cannot be restricted to the period of Iddat only in the case of a divorced woman. Learned counsel for the appellant is, therefore, right in his submission that no such restriction should have been imposed by the Family Court and instead, it should have been provided that the Appellant shall continue to be paid maintenance allowance until her remarriage, if any. We have considered the submissions made on behalf of the respondent and we find that the Family Court has given good reasons for the enhancement of allowances granted to the appellant and her two children earlier. The cost of living has no doubt increased and it makes no difference whether the person to whom the maintenance allowance is being given is a divorced women or a married woman. The allowance is given for the maintenance of the woman concerned and not merely her status. We find that there is no force in the contention raised on behalf of the respondent.”

5. Again the same provision was also interpreted in the case of Arab Ahemadhia Abdulla and etc. v. Arab Bail Mohmuna Saiyadbhai and others wherein it has been held as follows: “A

divorced muslim woman is entitled to maintenance after contemplating her future needs and the maintenance is not limited only up to iddat period. The phrase used in section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is “reasonable and fair provision and maintenance to be made and to be paid to her” by which the Parliament intended to see that the divorced woman gets sufficient means of livelihood after the divorce and that she does not become destitute or is not thrown on the streets without a roof over her head and without any means of sustaining herself and her children. The word ‘provision’ itself indicates that something is provided in advance of meeting some needs. This means that at the time of giving divorce the Muslim husband is required to visualize or contemplate the extent of the future needs and make preparatory arrangement in advance for meeting the same. May be that the provision can be made that every month a particular amount be paid to the wife: may be that residential accommodation for her can be provided: may be that some property be reserved for her so that she can purchase article for livelihood. Reasonable and fair provision may include provision for her residence, provision for her food, provision for her clothes and other articles. The husband may visualize and provide for residential accommodation till her remarriage. That means a provision for residential accommodation is made. Apart from the residential accommodation for clothes, food and also for other articles some fixed amount may be paid or he may agree to pay it by instalments. That would also be a provision. Therefore, the provision itself contemplates future needs of divorced woman. If the husband is rich enough, he may provide separate residential accommodation and that can be said to be a provision for residential accommodation. Therefore, it cannot be said that under section 3(1)(a) divorced woman is entitled to provision and maintenance only for iddat period. It cannot be said that the word “within” used in section 3(1)(a) of the Act should be read as “for” or “during”. The words cannot be construed contrary to their meaning as the word “within” would mean “on or before”, “not beyond”, “not later than”. The word “within” which is used by the Parliament under the Act would mean that on or before the expiration of iddat period, the husband is bound to make and pay a reasonable and fair provision and maintenance to the wife. If he fails to do so, then the wife is entitled to recover it by tiling an application before the Magistrate as provided in sub-section (2) of section 3 but nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period or that it is to be paid only during the iddat period and not beyond it.

If different phrase used in sections 3(1)(a), 3(1)(b), 3(3) and section 4 as well as section 5 of the Act are read together, it would be clear that the Parliament wanted to provide that the divorced woman is fully protected if she does not remarry and she gets adequate provision and maintenance from her former husband and/or maintenance from her relatives or Wakf Board in case of necessity.

Taking into consideration the objects and reasons for enacting the Muslim Women (Protection of Rights of Divorce) Act as well as the Preamble and the plain language of section 3 it cannot be said that Muslim Women Act in any way adversely affects the personal rights of a Muslim divorced woman. Nowhere in the Act it is provided that the rights which are conferred upon a Muslim divorced wife under Personal Law are abrogated, restricted or repealed. It is presumed that the Act is enacted with deliberation and full Knowledge of existing law on the object. In view of the Preamble the Act is enacted to protect the rights of Muslim Women who have been divorced by, or have obtained divorce from their husbands. In simplest language the Parliament has stated that the Act is for protecting the rights of Muslim Women. It does not provide that it is enacted for taking away some rights which a Muslim woman was having either under Personal Law or under the general law, i.e. section 125 to 128 of the Cr.PC.

By the enactment of Muslim Women (Protection of Rights on Divorce) Act. 1986, the order passed by Magistrate under section 125 of Cr.PC ordering Muslim husband to pay maintenance to his divorced wife would not be non-ext. There is no section in the Act which nullifies the orders passed by the Magistrate under section 125 of the Cr.PC. Further, once the order under section 125 of the Cr.PC. granting maintenance to the divorced woman is passed, then her rights are crystalized and she gets vested right to recover maintenance from her former husband. That vested right is not taken away by the Parliament by providing any provision in the Act. Under section 5 an option is given to the parties to be governed by the provision of section 125 to 128 of the Cr.PC This section also indicate that the Parliament never intended to take away the vested right of Muslim divorced woman which was crystalized before the passing of the Act. There is no inconsistency between the provisions of Act and the provisions of sections 125 to 128 of the Cr.PC on the contrary the provisions of Muslim Women Act grant more relief to the divorced woman depending upon the financial position of her former husband.

6. On a careful consideration of the principle decided in the above judgment I find the expression “during iddat period” should not be strictly construed only during that period. But it should be extended till a Mohammedan divorced female enters remarriage. Accordingly the learned Magistrate’s order is modified and the petitioner shall be entitled to get Rs. 800/- per month as maintenance from the date of application till she remarry.

The other portion of the order passed by the learned Magistrate shall, however, remain operative.

With the above observation the revisional application is disposed of.

Urgent xerox certified copy of the order, if applied for, same be supplied within two weeks from the date of putting requisition for the same.

7. Application disposed of

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