IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 Crl.MC.No. 1852 of 2007() ------------------------- CRRP.23/2006 of SESSIONS COURT, KALPETTA MC.23/1999 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY .................... PETITIONER(S): RESPONDENT -------------------------- C.A.MAJEED, S/O. CHEERAKUZHI MUHAMED, CHEERAKUZHI HOUSE, P.O.CHEERAL, SULTHAN BATHERY, WAYANAD DIST., REP. BY HIS FATHER AND GENERAL POWER OF ATTORNEY CHEERAKUZHI MUHAMED, S/O. ALI, CHEERAKUZHI HOUSE, P.O.CHEERAL, SULTHAN BATHERY, WAYANAD DISTRICT. BY ADV. SRI.A.K.SRINIVASAN SRI.N.S.MOHAMMED USMAN SRI.A.S.BENOY RESPONDENT(S): COMPLAINANT --------------------------- 1. AFIRA, D/O. USUMAN, MALIYEKKAL VEEDU, MULLANKUNNU, SULTHAN BATHERY TALUK, WAYANAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SMT.CELINE JOSEPH FOR R1 SRI.C.K.PADMAKARAN R2 BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R. K.HEMA, J. --------------------------------------- Crl.M.C.No.1852 of 2007 --------------------------------------- Dated this the 7th day of April, 2010 ORDER Is a divorced Muslim woman entitled to get, under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 ('the Act' for short) any payment from her former husband exclusively for iddat period, towards her expenses or maintenance, over and above “provision and maintenance” to be made and paid under the Act? What is the relevancy of “iddat period”, in respect of the claim for “provision and maintenance” under Section 3 of the Act? These are the main questions to be considered in this case. 2. Admittedly, petitioner married first respondent herein on 15.3.1998, under the Muslim law. Within six months of the marriage, on 8.8.1998, he divorced her. Thereafter, on 16.3.1999, she filed a petition under section 3 of the Act, claiming Rs.2,500/- per month towards expenses for iddat period, and also Rs.5,00,000/- towards fair provision and maintenance. She also made other claims for value of gold ornaments etc. Crl.M.C.No.1852 of 2007 2 3. Petitioner is working in Dubai and he is allegedly getting an amount of Rs.25,000/- per month. Therefore, taking into consideration status of the parties, first respondent contended that she is entitled to get Rs.5,00,000/- towards fair provision and maintenance. It is also admitted that pending enquiry into the petition, she re-married on 19.11.2000. 4. Petitioner filed a counter statement and contended that amount claimed is highly excessive. Considering the income of petitioner and needs of his divorced wife, first respondent is not entitled to get the exorbitant amount claimed by her, it is contended. According to him, he is only a salesman in a small establishment in Dubai and he is getting only Rs.4,000/-, excluding his expenses. 5. An enquiry was conducted by the Magistrate Court into the petition and an order was passed, directing petitioner to pay to first respondent Rs.1,62,000/- towards reasonable and fair provision, i.e., at the rate of Rs.6,000/- per month, for a period of 27 months, from date of divorce till date of re-marriage. Additionally, Rs.7,500/- was also ordered to be paid by petitioner towards her expenses during iddat period. Thus, a total amount of Rs.1,69,500/- was granted to first respondent. The other claims Crl.M.C.No.1852 of 2007 3 were rejected. 6. Petitioner challenged the above order in a revision before the Sessions Court but, it was dismissed. Hence, he filed this petition under Section 482 of the Code of Criminal Procedure ('the Code', for short). 7. Learned counsel for petitioner submitted that reasonable and fair provision can be calculated only @ Rs.2,500/- per month for 27 months, since first respondent claimed only Rs.2,500/- per month towards expenses during iddat period. She is not entitled to get more than such amount during balance period, it is submitted. Learned Sessions Judge observed in paragraph 13 of the order thus : “during iddat period, divorced woman has to lead a secluded life and she will not be permitted to have luxurious life or to have a standard of life enjoyed by her, during the subsistence of her marriage”, it was pointed out. According to learned counsel for petitioner, by the above observations, learned Sessions Judge was giving justification for granting a lesser amount during iddat period. 8. No where in law it is stated that divorced Muslim woman should lead a secluded or simple life during the iddat period and that she would be entitled only for a meagre amount Crl.M.C.No.1852 of 2007 4 during iddat period, it is argued. The standard of life which a woman enjoys during iddat period and thereafter is the same and hence, claim for reasonable and fair provision also should be assessed only on the basis of Rs.2,500/- per month for 27 months, it is argued. 9. It was also argued that Magistrate court committed a mistake in awarding more amount than what she claimed, and fixing Rs.6,000/- per month towards fair provision and maintenance. It is also submitted that out of the amount ordered, petitioner had already deposited Rs.1,00,000/- before trial court and hence, the order under Section 3 of the Act may be restricted to such amount. 10. Learned counsel for first respondent supported the findings of the lower court that a divorced wife has to lead a secluded life and that she cannot lead a luxurious life during the iddat period. It was under such circumstances that lesser amount of Rs.2,500/- was ordered, towards iddat expenses. But, that does not mean that first respondent is not entitled to get more than Rs.2,500/- per month towards fair provision and maintenance, it is strenuously contended. 11. It is further argued that Rs.6,000/- was fixed on Crl.M.C.No.1852 of 2007 5 proper consideration of relevant aspects and hence, no interference is called for. A divorced Muslim woman is entitled to get “reasonable and fair provision and maintenance” and the claim cannot be restricted to maintenance alone, as referred to in Section 125 of the Code, in the light of the settled position, it is argued. 12. On hearing both sides and on perusing the records, I find that the first and foremost crucial question to be resolved in this case is whether a divorced Muslim woman is entitled to get any amount exclusively for iddat period, towards her expenses and maintenance, apart from reasonable and fair provision, referred to under section 3 of the Act. A reading of Section 3 of the Act is essential to answer this question. 13. Section 3 of the Act (excluding the portion which is not relevant for disposal of this case) 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) xxxxxxxxxxxxx (c) xxxxxxxxxxxxx Crl.M.C.No.1852 of 2007 6 (d) xxxxxxxxxxxxx (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 Cl.(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. (3) Where an application has been made under sub-section(2) by a divorced woman, the Magistrate may, if he is satisfied that, -- (a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or (b) the amount equal to the sum or mahr or dower has not been paid or that the properties referred to Cl.(d) of sub- section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband 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 or, as the case may be, for the payment of such mahr or dower, or the delivery of such properties referred to in Cl.(d) of sub-section (1) to the divorced woman: Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.” 14. A reading of Section 3 of the Act shows that on divorce, a Muslim woman, is entitled for a “reasonable and fair provision and maintenance” from her former husband. But, Section 3 of Crl.M.C.No.1852 of 2007 7 the Act does not lay down that after the divorce, the former husband has to make any payment in addition to provision and maintenance. It is not stated in Section 3 of the Act that a divorced Muslim woman is entitled for any special payment from her husband exclusively for her expenses during iddat period. 15. The former husband has no liability to make any special payment to divorced wife towards expenses or maintenance exclusively for iddat period, over and above “provision and maintenance” referred to in Section 3 of the Act. There is nothing in Section 3 of the Act to show that in addition to the amount to be made and paid towards a 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. The amount fixed as a reasonable and fair provision and maintenance by the court under Section 3 of the Act has to cover the amount required for her subsistence during iddat period also. 16. If that be so, what is the relevancy of “iddat period”, under section 3 of the Act? On going through the said provision, I find that Section 3 only prescribes the time limit for making and paying “reasonable and fair provision and Crl.M.C.No.1852 of 2007 8 maintenance” to a divorced woman. It only lays down that a reasonable and fair provision and maintenance shall be made and paid “within” iddat period. If there is failure to make the payment within such period, cause of action arises for filing a petition under Section 3 of the Act. But, that does not mean that a divorced Muslim woman is entitled to get any special or additional amount exclusively for the expenses or maintenance during iddat period, over and above provision and maintenance under Section 3. 17. But, trial court directed petitioner to pay “reasonable and fair provision and maintenance” of Rs.1,62,000/-, at the rate of Rs.6,000/- per month for a period of 27 months ie., from the date of divorce till re-marriage and also, an additional amount of Rs.7,500/- at the rate of Rs. 2,500/- per month, towards expenses and maintenance for iddat period. This evidently, is not in conformity with the provision contained in section 3 of the Act. 18. As per the impugned order, first respondent will be getting an amount of Rs.8,500/- per month, exclusively during the iddat period. That is, Rs.6,000/- per month towards provision and maintenance plus Rs.2,500/- per month for expenses for iddat period. But, during the period excluding iddat period, she will get Crl.M.C.No.1852 of 2007 9 only Rs.6,000/- per month. This fixation runs contrary to the view expressed by learned Sessions Judge himself that during the iddat period, a divorced woman is not entitled to lead a luxurious life and that she has to lead a secluded and simple life, etc. The finding and the reasoning do not reconcile. 19. Therefore, the order passed against petitioner directing him to pay an additional amount of Rs.7,500/- towards expenses during iddat period cannot be sustained. Having granted a lump sum at Rs.1,62,000/- (from the date of divorce till re-marriage) at the rate of Rs.6,000/- per month towards provision and maintenance, the court ought not to have granted any additional payment of Rs.2,500/- per month, towards expenses exclusively for iddat period. 20. However, trial court and revisional court concurrently found that Rs.6,000/- is a reasonable amount to be paid per month to the divorced wife by the former husband, towards provision and maintenance, taking into consideration the means of the husband and also the standard of life which divorced wife had enjoyed. In the light of the evidence adduced, the quantum fixed by the trial court is only reasonable and fair and I do not find any reason to interfere with the same. Crl.M.C.No.1852 of 2007 10 21. In the result, direction issued against petitioner to pay Rs. 7,500/- towards expenses during iddat period is unsustainable and is liable to be set aside. Hence, the following order is passed. i) The order directing petitioner to pay Rs. 7,500/- towards iddat period is set aside. Petition is partly allowed. K.Hema, Judge cms