IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 Crl.MC.No. 3309 of 2011() ------------------------- CRRP.34/2010 OF SESSIONS COURT, PALAKKAD MC.120/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ALATHUR . ................... PETITIONER/PETITIONER/COUNTER PETITIONER: ------------------------------------------------------------------------- CHAND MUHAMMED, AGED 36 YEARS, S/O. ABDUL RAHIMAN, KEEZHACHIRA VEEDU, VADAVANNUR. BY ADV. SRI.K.ABDUL JAWAD RESPONDENT/RESPONDENT/PETITIONER: ------------------------------------------------------------ 1. ZEENATH, AGED 30 YEARS, D/O. KABEER, VADAKKEPARAMBIL, KAYARADI, AYILUR, CHITTUR TALUK - 673 306. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031. R2- BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN. THIS CRIMINAL MISCELLANEOUS CASE HAVING COME UP FOR ADMISSION ON 20/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SCL. Crl.MC.No. 3309 of 2011() APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A: CERTIFIED COPY OF THE ORDER DATED 20.2.2010 IN MC NO.120/08 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ALATHUR. ANNEXURE B: CERTIFIED COPY OF THE COMMON ORDER DATED 8.3.2011 IN CRL. R.P. NO.34/2010 ON THE FILE OF SESSIONS COURT, PALAKKAD MODIFYING ORDER DATED 20.2.2010. RESPONDENTS' ANNEXURES: NIL //TRUE COPY// PA TO JUDGE SCL. N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3309 of 2011 ----------------------------------- Dated this the 20th day of October 2011 O R D E R Petitioner challenges Annexure B common order passed by the learned Sessions Judge, Palakkad in Crl.R.P.Nos.34 and 46 of 2010. The first respondent herein filed a petition under Sec.3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 (herein after referred to as 'Act') before J.F.C.M., Alathur claiming maintenance during iddat period, fair and reasonable provision and also for the value of gold ornaments worth 25 sovereigns and another sum of Rs.60,000/- which was stated to have been paid to the petitioner herein earlier. That petition was resisted by the petitioner herein raising various grounds. The learned Magistrate allowed that petition and ordered that Rs.12,000/- shall be paid as maintenance for the iddat period of three months and Rs.70,000/- be paid as reasonable and fair provision. It was also directed that the Crl.M.C. No.3309 of 2011 -: 2 :- said amount will carry interest at the rate of 9% per annum from 15.9.2008 till the date of payment. He was given two months time to pay the said amount. The claim for the value of gold ornaments and for return of Rs.60,000/- was disallowed. The divorced wife filed a revision petition against the rejection of her claim for the value of gold ornaments and for return of Rs.60,000/- mentioned above. The petitioner herein filed a revision petition challenging the order directing payment of Rs.12,000/- as maintenance for the iddat period and Rs.70,000/- as fair and reasonable provision. 2. As per Annexure B common order, the learned Sessions Judge dismissed the revision petition filed by the divorced wife but allowed the revision petition filed by the petitioner herein in part, reducing the amount of maintenance for the iddat period to Rs.6,000/- as against Rs.12,000/- which was awarded by the learned Magistrate. But the order for payment of Rs.70,000/- as fair and reasonable provision was confirmed by the learned Sessions Crl.M.C. No.3309 of 2011 -: 3 :- Judge. 3. The petitioner herein contends that since the first respondent herein had stated that she had not accepted the talak, the petition filed by her was not maintainable. It was also contended that she had not observed any iddat. The learned counsel for the petitioner submits that there is no provision in the Act to order separate maintenance for the iddat period and that the courts below should have found that the amount payable as 'fair and reasonable provision' would cover the amount for the iddat period and hence no separate amount should have been ordered for the iddat period. It is also contended that there is no evidence to show that the first respondent has observed iddat. The other ground that has been put forward by the petitioner is that the court below went wrong in awarding interest for the amount ordered as maintenance and fair provision. 4. Heard the learned counsel for the petitioner in detail. 5. The main plank of the argument advanced by the Crl.M.C. No.3309 of 2011 -: 4 :- learned counsel is that a divorced woman is not entitled to get any additional amount exclusively for expenses or maintenance during the iddat period, for, according to the learned counsel, the amount ordered as reasonable and fair provision would take in the amount payable during the iddat period as well. Relying upon the decision in Majeed v. Afira reported in [2011 (1) KLT 199], the learned counsel submits that there is nothing in Sec.3 of the Act to show that in addition to the amount to be made and paid towards reasonable and fair provision and maintenance a divorced wife is entitled to get any amount exclusively for the expenses or maintenance during iddat period also. It is profitable to refer the relevant clauses of Sec.3 of the Act :- “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; Crl.M.C. No.3309 of 2011 -: 5 :- (b) xxxxxxxxxxxxxx (c) xxxxxxxxxxxxxx (d) xxxxxxxxxxxxxxx (2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, or her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.” 6. The aforesaid provisions make it clear that a divorced woman is entitled to reasonable and fair provision and also maintenance which is payable within the iddat period from her former husband apart from the dower and other dues and other properties mentioned in clause (d) of sub-section (1). sub-sec.(2) of Sec.3 enables the divorced woman to apply for an order for payment of the statutory dues payable to her by her former husband. The validity of the provisions of the Act was challenged before the Apex Court in various writ petitions. All those writ petitions were Crl.M.C. No.3309 of 2011 -: 6 :- dismissed by the Constitution Bench of the Apex Court in Danial Latifi v. Union of India reported in [2001 (3) KLT 651 (SC)]. It was held in the aforesaid decision : “A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that parliament seems to intend that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word 'provision' indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. The expression “within” should be read as “during” or “for” and this cannot be done because words cannot be construed contrary to their meaning as the word “within”would mean “on or before”, “not beyond” and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the magistrate as provided in S.3(3) but no where the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not Crl.M.C. No.3309 of 2011 -: 7 :- beyond it.” It was also held : “The wordings of S.3 of the Act appear to indicate that the husband has two separate and distinct obligations :(1) to make a 'reasonable and fair provision' for his divorced wife; and (2) to provide 'maintenance' for her.” (underlined by me to lay emphasis). While upholding the validity of the Act, the Constitution Bench has summed up the conclusion as : “(1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of S.3(1)(a) of the Act. (2) Liability of the Muslim husband to his divorced wife arising under S.3(1)(a) of the Act to pay maintenance is not confined to iddat period. (3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under S.4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Crl.M.C. No.3309 of 2011 -: 8 :- Wakf Board established under the Act to pay such maintenance. (4) The provisions of the Act do not offend Arts. 14, 15 and 21 of the Constitution of India.” Conclusion No.(2) that liability of Muslim husband to his divorced wife arising under Sec.3(1)(a) of the Act to pay maintenance is not confined to iddat period would make it abundantly clear that the divorced wife is entitled to maintenance for the iddat period also. It is also clear that it is not maintenance due prior to divorce. Thus it can be seen that the Apex Court construed and reckoned “reasonable and fair provision” as one head of claim the divorced wife is entitled to claim. “Maintenance for the iddat period” was taken as another, separate and exclusive claim. It was not treated as part of the claim for reasonable and fair provision. These are the two liabilities which the former husband incurs and is obliged to satisfy. It was held by another Single Judge of this Court in Moidu Haji v. Mariyam [2007 (1) KLT 598] : “A divorced woman, whether the marriage was Crl.M.C. No.3309 of 2011 -: 9 :- consummated or not, is entitled to claim maintenance during iddat apart from fair and reasonable provision towards future maintenance and also dower and other statutory dues in the event of her being divorced by the husband.” The amount as maintenance to be paid within the period of iddat cannot be construed to mean that no maintenance exclusively for the period of iddat is liable to be paid by the former husband. The word “maintenance” referred to in Sec.3(2) of the Act relates to maintenance which is payable to the wife under Sec.3(1) of the Act, that is; to be paid within the period of iddat on divorce. Sec.3 does not refer to payment of past maintenance. For the future period, after the iddat period, what is payable by the former husband is reasonable and fair provision. If so it can be held that the divorced muslim woman is entitled to get maintenance exclusively for the iddat period. In the light of the decision of the Constitution Bench in Danial Latifi's case, I am unable to accept the argument based on the decision in Majeed's case, advanced by the learned Crl.M.C. No.3309 of 2011 -: 10 :- counsel for the petitioner. The Apex Court in Shabana Bano v. Imran Khan reported in [AIR 2010 SC 305], it was held : “The amount of maintenance to be awarded under Section 125 of the Cr.P.C. cannot be restricted for the iddat period only.” Though it was a decision rendered while deciding the claim under Sec.125 of Cr.P.C. that also would support the view that a divorced woman is entitled to get maintenance exclusively for the iddat period. 7. According to the petitioner, the words “reasonable and fair provision” and “maintenance” means one and the same thing. In other words, “reasonable and fair provision” would include “maintenance” also. So that no order for maintenance exclusively for iddat period cannot be granted. If that argument is accepted, the words “maintenance to be made and paid” in Sec.3(1)(a) of the Act would become redundant. The words “reasonable and fair provision” appearing at the beginning of sub-clause (a) and Crl.M.C. No.3309 of 2011 -: 11 :- “maintenance to be made and paid” are separate and distinct. In Ali v. Sufaira [1988 (2) KLT 94] it was held by a Single Bench of this Court : “The divorced muslim women are thus entitled to a reasonable and fair provision ad maintenance. According to the learned counsel appearing for the former husbands, the words 'provision' and 'maintenance' mean one and the same thing. So, S.3(1)(a) of the Act provides only for the payment of maintenance within the period of iddat. If this argument is accepted the said sub clause could have been worded, 'maintenance to be paid to her within the iddat period by her former husband'. The words 'a reasonable and fair provision and' appearing at the beginning of the sub clause (a) and 'made and' appearing after the words 'maintenance to be' would become redundant.” 8. An interpretation which is reasonable and would protect the interests of a divorced muslim woman is to be adopted by the court. The words used in Sec.3(1)(a) are plain, clear, certain and unambiguous. It was held by a Division Bench of this Court in Aliyar v. Pathu reported in [1988 (2) KLT 446] : “The words used are plain, clear, certain and unambiguous; they clearly involve declaration of two Crl.M.C. No.3309 of 2011 -: 12 :- separate and distinct rights, that is, to obtain maintenance for the period of iddat and to have a reasonable and fair provision made. Provision is the amount set aside to provide for known liability which cannot be quantified accurately; it is a provision for future use. Besides paying maintenance to the divorced wife for the iddat period, former husband has to provide reasonably and fairly for the future needs of the divorced wife, ie. use of the divorced wife after the period of iddat period and till her marriage or death.” (underlined by me to supply emphasis). The aforesaid decision was quoted with approval by a Division Bench of this Court in Kunhammed Haji v. Amina reported in [1995 (1) KLT 765], where it was held : “We would thus hold that under S.3(1)(a), a divorced muslim woman is entitled to get a fair and reasonable provision made for her livelihood after the period of iddat apart from her right to get maintenance during the period of iddat.” The reasonable interpretation would be that the divorced woman is entitled to get maintenance for the iddat period. Besides, she is also entitled to get a reasonable and fair provision for her. Mulla in the principles of Muhammed in law 18th edition, paragraph 279 states : Crl.M.C. No.3309 of 2011 -: 13 :- “After divorce, the wife is entitled to maintenance during the period of iddat. If the divorce is not communicated to her until after the expiry of that period, she is entitled to maintenance until she is informed of the divorce.” Since the main purpose of the statute is to protect the interest of the divorced muslim woman, even if two interpretations are equally possible, that interpretation which is reasonable and favourable to protect the interest of the divorced muslim woman has to be preferred to. In the light of what have been stated above, the contention that the petitioner is not entitled to get maintenance exclusively for the period of iddat cannot be sustained. 9. Though arguments were addressed by the learned counsel for the petitioner challenging the quantum of fair and reasonable provision fixed by the court below, that argument cannot be sustained since the learned Magistrate has considered the evidence in the correct perspective. Even the revisional court can re-appreciate the evidence only if the appreciation of the evidence by the learned Magistrate was perverse or any relevant evidence was Crl.M.C. No.3309 of 2011 -: 14 :- overlooked or ignored. The learned Sessions Judge has re- appreciated and found that the sum of Rs.70,000/- ordered towards fair and reasonable provision does not require interference. This Court finds no reason to interfere with the same. 10. As regards the total sum of Rs.6,000/- ordered to be paid towards maintenance for the iddat period of three months, no challenge can be made at all. In fact, the learned Magistrate had directed a total sum of Rs.12,000/- to be paid on that count but the learned Sessions Judge has reduced it to Rs.6,000/-. In fact, that should not have been done. Therefore, the challenge regarding the quantum is found to be bereft of any merit. 11. The last argument advanced by the learned counsel for the petitioner is that there is no provision in the Act to award interest on the amount payable by the divorced husband. The learned counsel would further argue that claiming interest is against his personal law. I cannot accede to that submission. Crl.M.C. No.3309 of 2011 -: 15 :- 12. The amount payable towards reasonable and fair provision and maintenance is to be paid within iddat period. Admittedly, the amount was not paid within that time. Even thereafter the amount was not paid. The divorced wife is entitled to get that amount during the iddat period itself. At least it should have been paid immediately on the date the iddat period expired. That was also not done. Hence she was unjustly denied the amounts payable on that day. The former husband, by retaining that amount with himself has unlawfully gained and has denied the divorced wife to receive that amount within the time prescribed. If so, the former husband has to compensate the wife for non- payment of the amount within the prescribed time. Even if the statute does not make any specific provision for payment of interest, the power of the court to grant interest can be referred to by the provisions of the Interest Act, 1978. Since the amount was payable within the iddat period, if it is not paid during the iddat period certainly the said amount should carry interest because that amount Crl.M.C. No.3309 of 2011 -: 16 :- which the divorced wife was entitled to get was unjustly denied. The former husband cannot dodge the payment and at the same time deny the interest payable on the said amount. As stated above, it is actually the compensation for her for being denied the use of the money during the period within which it should have been paid. In this connection the decision in Thazhathe Purayil Sarabi v. Union of India [AIR 2009 S.C. 3098] can be profitably referred to here. Though it was considered in a claim petition filed under the Railway Claims Tribunal Act, the principal enunciated in that decision, according to me, is applicable to this case as well. There also it was pointed that there was no provision for payment of interest. It was held by the apex court: “Even though there is no provision in either of the Acts for payment of interest on the awarded sum, there is no denying the fact that the right to claim compensation accrued on the date of the incident, although, compensation has been held in Rathi Menon's case (supra) is to be computed from the date of the Award of the Claims Tribunal. In cases where the statute Crl.M.C. No.3309 of 2011 -: 17 :- does not make any specific provision for payment of interest on any awarded sum, the power of the Courts to grant interest can also be referred to from the provisions of the Interest Act, 1978 and the Code of Civil Procedure Act, 1978 and the Code of Civil Procedure.” It was also held: “As we have indicated hereinbefore, when there is no specific provision for grant of interest on any amount due, the Court and even Tribunals have been held to be entitled to award interest in their discretion, under the provisions of Section 3 of the Interest Act and Section 34 of the Civil Procedure Code.” It was further held in paragraph 23 of the judgment cited supra: “As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period which the same could have been made available to the claimants.” 13. In the light of the principles adumbrated in the aforesaid decision, I have no hesitation to hold that the divorced wife is entitled to interest on the amount which she was entitled to get within the period but which was unjustly denied to her. The rate of interest awarded is only 9% Crl.M.C. No.3309 of 2011 -: 18 :- payable from the date of the petition till the date of payment. The rate of interest is quite reasonable. Therefore, I find no reason to interfere with the order of the court below with regard to the direction to pay the interest as well. In the light of what is stated above, this Crl.M.C. is dismissed. N.K.BALAKRISHNAN, JUDGE. Jvt