Maintenance for Muslim Divorced Women

KERALA HIGH COURT
(P. D. RAJAN, J.)
E. M. MOIDEEN                                                                                                         Petitioner
VERSUS
NUSAIBA                                                                                                                 Respondent

Cri. MC. No. 517 of 2012-Decided on 4-3-2014.
Criminal P.C. (2 of 1974), S.125 – Muslim Women (Protection of Rights on Divorce) Act (25 of
1989), S. 3(1)(a) – Maintenance – Divorced Muslim woman – As per law maintenance not for iddat
period but for future maintenance – Primary responsibility cast upon former husband to pay amount as
mentioned in S. 2(1)(a) of Act, within iddat period – Payment not made by husband within iddat period.
Husband a central Govt. employee and having landed property – Magistrate order fixing Rs. 6,000/- and
Rs. 2,40,000/-as amount payable under S.3(1)(a) of Act on wife petition upheld.
(Paras 6, 15, 16)
Cases Referred : Chronological Paras
2012 Cri LJ 1220 (Ker) 3, 4, 6
2011 (1) KHC 22 3,5,7,12
AIR 2001 SC 3958 : 2001 AIR SCW 3932 : 2001 Cri LJ 4660 (Rel. on.) 11,15
1995 Cri LJ 3371 (Ker) 6,11
AIR 1990 AP 225 (FB): 1990 Cri LJ 1364 11
AIR 1989 SC 38 14
1988 (2) Ker LT 94 6,11
AIR 1988 Guj 141 9
1988 (2) Ker LT 446 6
(1955) 2 QB 379 13
(1951) 1 All ER 268 13
(1944) 1 KB 718 13
(1941) 2 All ER 11 12
Advocate(s): M.P. Mohammed Aslam, for Petitioner;
K. M Firoz, Smt. M. Shajna, Githesh. R., P. P., for Respondent.
ORDER
1. This is a petition filed u/S. 482 of the Code of Criminal Procedure 1973 (hereinafter called as “Code” for short) to quash Annexures-A3 and A4 orders in M.C. 16/08 of Judicial 1st Class Magistrate Court, Kunnamangalam by invoking inherent jurisdiction. The above M.C. 16/08 was filed by the wife in the Judicial First Class Magistrate Court, Kunnamangalam u/S. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the ‘Act’ for short), seeking fair provision for maintenance from her former husband. The learned Magistrate ordered payment of Rs.6000/- (Rupees six thousand only) and Rs.2,40,000/- (Rupees two lakh fourty thousand only) as the amount payable under Section 3(1)(a) of the Act as reasonable and fair provision and maintenance. Being aggrieved by that order, the husband preferred Cri.R.P.No.71/2008 before the Sessions Court, Kozhikode, which was also dismissed. In the circumstances, the petitioner approached this Court with the above petition alleging that the above order is illegal, unjust and contrary to settled principles regarding the assessment of fair provision and maintenance u/S. 3 of the Act and therefore, it is to be quashed.

2. According to Section 3 of the Act, a divorced woman shall be entitled to get a reasonable and fair provision and maintenance from her former husband, which has to be paid to the wife within the iddat period. Section 3 (1) (a) to (d) of the 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 (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 the husband or any relatives of the husband or his friends.
A careful reading of the Section indicates that a divorced Muslim woman is entitled to get a reasonable and fair provision and maintenance, which includes provision for her food, clothes and other article for a certain period. The Act indicates that the above maintenance shall be given by the husband on or before expiry of the iddat period.
3. The learned counsel appearing for the petitioner contended that the 1st respondent had suppressed her earlier marriage and she has no physical capacity to lead a normal marital physical relationship with the petitioner. She has not observed iddat, on that ground she is not entitled to get any amount during that period. The learned counsel relied the decision in Majeed C.A. v. Afira and another [2011 (1) KHC 22] and contended that she is not entitled to get any special or additional amount exclusively for the expenses or maintenance during iddat period. He also cited another decision Chand Muhammed v. Zeenath [2011(4) KLT 671] : (2012 Cri LJ 1220 (Ker)) and pointed out to follow the earlier ratios drawn by this Court in Majeed’s case (supra).

4. The learned counsel appearing for the 1st respondent contended that there is no reason to interfere in the finding recorded by the trial court and the 1st revisional court. The petitioner is a Central Government employee and having landed properties and getting sufficient amount for paying fair provision and maintenance to the 1st respondent. She had properly observed iddat period, therefore no interference is needed in the finding of the courts below. Therefore, the Muslim husband has to pay maintenance to his divorced wife u/S. 3(1)(a) of the Act, including the iddat period which is explained in Chand Muhammed’s case, (2012 Cri LJ 1220 (Ker)) (supra).

5. A learned single Judge in Majeed’s case (supra) held as follows: (paras 12, 14, 15 and 16) “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 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.
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 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 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.”

6. Another single Judge in Chand Muhammed’s case, (2012 Cri LJ 1220 (Ker)) (supra) held as follows: (paras 7 and 8)
“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 S. 3(1)(a) of the Act would become redundant. The words “reasonable and fair provision” appearing at the
beginning of sub-clause (a) and “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 and 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 S. 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 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 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, i.e., 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) : (1995 Cri LJ 3371 (Ker)), 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 Mohamedan Law, 18th Edition, paragraph
279 states:
“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.”
7. Here the dispute is with regard to payment of fair provision during iddat period along with the amount of maintenance. At the outset, I may submit that under Section 3 of the Act, the term “special” or “additional amount” as mentioned in Majeed’s case (supra) is not enacted in the Statute. A careful reading of sub-section (1) of Section 3 lays down that a divorced Muslim woman is 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 (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 the husband or any relatives of the husband or his friends. The husband on divorce has failed to secure any of the above, the wife or her authorized agent has the right to sue the husband by filing an application before the Magistrate. If the Magistrate is satisfied that the husband has not complied with the aforesaid  conditions, he will make an order, within one month of the date of filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman.
8. Now coming to the challenge in this petition as to whether the liability of the former husband to his divorced wife to pay maintenance and make provision for her is confined to iddat period only? What is the meaning of the word “within” and does it specify any period for maintenance? It should be noticed that Section 3(1) begins with non-obstante clause, and lays down that a divorced woman is entitled from her former husband inter alia: (a) a reasonable and fair provision and (b) a reasonable and fair maintenance. It is pertinent to note that the duration of the maintenance for children is specified as period
of two years from the respective dates of birth of each child, but no period is specified in regard to divorced wife’s “provisions and “maintenance”. It is clear that the word “within” mention about the time in which the husband must discharge his obligation which is evident from the meaning. Broadly speaking, the duration of iddat is three lunar months and if the husband fails in his obligation, then the wife may make an application to the Magistrate, and the Magistrate must decide the application “within” a period of one month.
9. The words ‘fair provision’ and ‘maintenance’ came up for consideration before the Gujarat High Court in A.A. Abdulla v. A. B. Mohmuna Saiyadbhai, [AIR 1988 Guj 141] and it was, after considering the dictionary meaning of the word “within”, observed that it means “on or before”, “not beyond”, “not later than” and cannot mean during, and one is not permitted to construe the same contrary to the natural meaning of the word. Thus, the word ‘within’ u/S. 3(1)(a) 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 filing an application before the
Magistrate as provided in sub-section (2) of Section 3 but Parliament has not stated 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.
10. The most relevant consideration provided in the aforesaid Act was that the husband is required to make fair provision and maintenance to his wife within a time limit that is to be done within iddat period. If it is explained in other way the divorced wife is entitled to have a reasonable and fair provision and maintenance to be made and paid within ‘iddat’ period by her former husband. Therefore, two propositions can be laid down from the aforesaid Section, (a) a fair and reasonable amount of maintenance has to be provided by the husband to the wife during iddat period, (b) fair and reasonable provision is to be made by the husband during iddat period for the divorced wife, after the period of ‘iddat’ till she is re-married.
Therefore, it is clear that if the divorce not come into force during iddat period, the husband has the duty to maintain his wife during ‘iddat’ period. The second thing is the benefit of divorced wife after the period of iddat.
11. A single Bench of this Court in Ali v. Sufaira [1988 (2) KLT 94] took this view. A Division Bench in Kunhammed Haji v. Amina [1995 KHC 139] : (1995 Cri LJ 3371 (Ker)) followed the above decision. But, High Court of Andhra Pradesh in Usman Khan Bahamani v. Fathimunnisa Begum [AIR 1990 AP 225] (FB) held that reasonable and fair provision for maintenance cannot be read as meaning two different things. The liability of the Muslim husband is to pay maintenance only for “a period of iddat” alone. This decision of Andhra Pradesh High Court was overruled by the Constitution Bench of the Apex
Court in Danial Latifi v. Union of India [2001 (3) KLT 651 (SC)] : (AIR 2001 SC 3958) and held that no where the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time. It is held in paragraphs 27 and 28 as follows:
“27. S. 3(1) of the Act provides that a divorced woman shall be entitled to have from her husband a reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under S.3(2) the Muslim divorcee can file an application before a Magistrate if the former husband has not paid to her a reasonable and fair provision and maintenance or mehr due to her or has not delivered the properties given to her before or at the time of marriage by her relatives, or
friends, or the husband or any of his relatives or friends. S. 3(3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may think fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of her former husband. The judicial enforceability of the Muslim divorced woman’s right to provision and maintenance under S. 3(1) (a) of the Act has been subjected to the condition of husband having sufficient means which, strictly speaking, is contrary to the principles of Muslim law as the liability to pay maintenance during the iddat period is unconditional and cannot be circumscribed by the financial means of the husband. The purpose of the Act appears to be to
allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat.”
28. 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 of 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 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 nowhere the Parliament has provided that reasonable and fair
provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.”
12. The learned single Judge of this Court in Majeed’s case has not referred any of the decisions rendered by this Court or the Apex Court. Per incuriam refers to a judgment of a court which has been decided  without reference to a statutory provision or earlier judgment which would have been relevant. The importance of a judgment having been decided per incuriam it does not then have to be followed as precedent by a lower court. Ordinarily, in the common law, the ratio decidendi of a case must be followed thereafter by lower courts hearing similar cases. However, a lower court is free to depart from
an earlier judgment of a superior court where that earlier judgment was decided per incuriam. In the book CLARENDON LAW SERIES “Precedent in English Law”, Cross and Harris, Fourth Edition at page 148  it is held as follows:
“We have seen that the example of a decision given per incuriam by Lord Greene MR was a case
in which a statute or rule having statutory effect is not brought to the attention of the court. Lord
Greene had already given judgment in the Court of Appeal in Lancaster Motor Co. (London) Ltd.
v. Bremith [1941 2 All ER11] in which a previous judgment of the court was ignored because it
contravened the terms of a rule of the Supreme Court. Lord Greene characterized that judgment
as one ‘delivered without argument and delivered without reference to the crucial words of the
rule and without any citation of authority. It has since been doubted whether a decision on the
interpretation of a statute given without reference to a well-recognized general rule of statutory
construction can be said to have been given per incuriam. But the most important development
under this head has been the clear recognition of the fact that a decision given in ignorance of a
case which would have been binding on the court is given per incuriam. The following is what
must probably be treated as the leading statement of the principle:
As a general rule the only cases in which decision should be held to have been given per
incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent
statutory provision or of some authority binding on the court concerned, so that in such
cases some feature of the decision of some step in the reasoning on which it is based is
found on that account to be demonstrably wrong. This definition is not necessarily
exhaustive, but cases not strictly within it which can properly be held to have been
decided per incuriam, must in our judgment, consistently with the stare decisis rule which
is an essential part of our law, be of the rarest occurrence.
13. The Court of Appeal in Morella Ltd. v. Wakeling [1955] 2 QB 379 stated that as a general rule the
only cases in which decisions should be held to have been given per incuriam are those of decisions given
in ignorance or forgetfulness of some inconsistent statutory provision of some authority binding on the
court concerned: so that in such cases some part of the decision or some step in the reasoning on which it
is based is found, on that account, to be demonstrably wrong. In R.V. Northumberland Compensation
Appeal Tribunal ex parte Shaw [1951] 1 All ER 268, a divisional court of the King’s Bench division
declined to follow a Court of Appeal decision on the ground that the decision had been reached per
incuriam as a relevant House of Lords decision, which had not been cited to the Court of Appeal. In
Young v. Bristol Aeroplane Co. Ltd. [1944 (1) King’s Bench 718] held as follows:
“On a careful examination of the whole matter we have come to the clear conclusion that this
court is bound to follow previous decisions of its own as well as those of courts of co-ordinate
jurisdiction. The only exceptions to this rule (two of them apparent only) are those already
mentioned which for convenience we here summarize: (1) The court is entitled and bound to
decide which of two conflicting decisions of its own it will follow. (2) The court is bound to
refuse to follow a decision of its own which, though not expressly overruled, cannot, in its
opinion, stand with a decision of the House of Lords. (3) The court is not bound to follow a
decision of its own if it is satisfied that the decision was given per incuriam.”
14. Apex Court in Municipal Corporation of Delhi v. Gurnam Kaur [AIR 1989 SC 38] held as follows:
“It is axiomatic that when a direction or order is made by consent of the parties, the Court does
not adjudicate upon the rights of the parties nor lay down any principle. Quotability as ‘law’
applies to the principle of a case, its ratio decidendi. The only thing in a Judge’s decision binding
as an authority upon a subsequent Judge is the principle upon which the case was decided.
Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not
authoritative. The task of finding the principle is fraught with difficulty because without an
investigation into the facts, it could not be assumed whether a similar direction must or ought to
be made as a measure of social justice. Precedents sub silentio and without argument are of no
moment. This rule has ever since been followed. One of the chief reasons for the doctrine of
precedent is that a matter that has once been fully argued and decided should not be allowed to be
reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions
carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated
as an ex cathedra statement, having the weight of authority.
15. In short, the ratio determined by the Constitution Bench of the Apex Court in Danial Latifi’s case
(AIR 2001 SC 3958) (supra) gives the correct interpretation of “a reasonable and fair provision and
maintenance within iddat period” mentioned under the Act. The Apex Court held that the word “within”
would mean “on or before” “not beyond”. Therefore, the primary responsibility cast upon the husband is to pay the amount as mentioned in Section 3(1)(a) of the Act, within iddat period. Here, the petitioner has
not made such payment within iddat period and the wife filed a petition before the learned Magistrate and
the learned Magistrate has reached at a conclusion that the husband has not complied with the conditions.
I find that the Courts below were justified in fixing Rs.6000/- and Rs.240000/- as the amount payable
under Section 3(1)(a) of the Act and I express my absolute concurrence with regard to the conclusions of
the Courts below.
16. Hence I am of the view that any interference in the above findings by invoking inherent jurisdiction
u/S. 482 Cr.P.C, would result in miscarriage of justice. I accordingly dismiss this petition without any
merit.
Petition allowed.
——

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