K. Mohammed Basheer v Ayisha and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933** ## **Crl.MC.No. 1440 of 2010()** **-----------------------CRRP.86/2005 OFADDL. SESSIONS COURT-I, PALAKKAD MC.73/2000 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, OTTAPPALAM ................** ## **PETITIONER / PETITIONER / COUNTER PETITIONER:** **-----------------------------------------------------------------------------** **K.MOHAMMED BASHEER, S/O. VEERAN KUTTY, KARUVAMPADAM, UMMANAZHI DESOM, PULAPPATTA, KADAMPAZHIPURAM, OTTAPPALAM, PALAKKAD.** **BY ADV. SRI.VINOD KUMAR.C** ## **RESPONDENT / RESPONDENT / COMPLAINANT :** **----------------------------------------------------------------------** **1. AYISHA, D/O. NEDIYEDATH MUHAMMEDALI, ALANGAD DESOM, KADAMPAZHIPURAM, OTTAPPALAM, PALAKKAD.** **2. STATE OF KERALA,** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI. MANU** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** ## **THOMAS P. JOSEPH, J. -------------------------------------Crl.M.C. No.1440 of 2010 -------------------------------------Dated this the 6[th] day of June, 2011.** ## **ORDER** The main question urged before me in this proceeding is whether apart from reasonable and fair provision and maintenance awarded by learned Magistrate to the divorced Muslim woman for the period beyond the iddat period, is it permissible to award maintenance to her during the period of iddat as well. Learned counsel placing reliance on the decision of a learned Judge of this Court in **Majeed v. Afira (2011 (1) KLT 199)** has contended that a divorced Muslim woman is not entitled to get any special or additional amount exclusively for expenses or maintenance during the period of iddat over and above reasonable and fair provision and maintenance under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short, “the Act”). 2. This proceeding arises from the order of leaned Judicial First Class Magistrate, Ottappalam in M.C.No.73 of 2000 awarding `.1,50,000/- as reasonable and fair provision and maintenance and `.3,750/- as maintenance during the period of iddat, as confirmed by the learned First Additional Sessions Judge, Palakkad in Crl.R.P.No.86 of 2005. It is contended by learned counsel that in view of the decision referred supra, first respondent could not have been awarded maintenance during the period of iddat since learned Magistrate has awarded `.1,50,000/- as reasonable and fair provision and maintenance which **Crl.MC No.1440/2010** 2 should include the period of iddat as well. It is also contended that the amount awarded is excessive. 3. Under Section 3(1)(a) of the Act, notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to, among other things: “(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.” As per the said provision the former husband is to make and pay reasonable and fair provision and maintenance 'within the iddat period'. In otherwords, the payment by way of reasonable and fair provision and maintenance has to be made and paid within the period of iddat and if the Muslim divorced wife is not paid that amount within the period of iddat, she gets a cause of action to proceed against her former husband before court. In the decision relied by learned counsel it has been held that the former husband has no liability to make any special payment to the divorced wife towards expenses or maintenance exclusively for iddat period, over and above 'provision and maintenance' referred to in Section 3 of the Act. It is held that the amount fixed as reasonable and fair provision and maintenance under Section 3 of the Act has to cover the amount required for her subsistence during the period of iddat also. In that case, `.1,62,000/- was awarded as reasonable and fair provision and **Crl.MC No.1440/2010** 3 maintenance at the rate of `.6,000/- per month for a period of 27 months from the date of divorce till re-marriage and `.7,500/- as expenses during the period of iddat. The learned Judge, in the light of observations made above, found that no additional sum is payable for expenses and maintenance during the period of iddat over and above reasonable and fair provision and maintenance under Section 3 of the Act and accordingly set aside the order for payment of `.7,500/- (awarded by the learned Magistrate as maintenance during the period of iddat). Learned Judge has proceeded on the basis that the sum of `.1,62,000/- awarded as reasonable and fair provision and maintenance is from the date of divorce till re-marriage (in the way it was claimed in the claim petition). 4. It is not as if Section 3(1)(a) of the Act does not contemplate payment of maintenance during the period of iddat. A learned Judge of this Court in **Ali v. Sufaira (1988 (2) KLT 94)** observed in paragraph 11: “............. Viewed in that manner it is evident that a divorced muslim woman is entitled not only to maintenance for the period of iddat but also to a reasonable and fair provision for her future livelihood, from her former husband.” In paragraph 12 it was observed **Crl.MC No.1440/2010** 4 “In view of what has been stated above, I hold that u/s 3(1)(a) of the Act a divorced muslim woman is not only entitled to maintenance for the period of iddat from the former husband but also to a reasonable and fair provision for her future. ..........” 5. A Division Bench of this Court considered the question in **Aliyar** **v. Pathu (1988 (2) KLT 446)** . There, in paragraph 9 it was observed: “.......... Besides the provision to be made, she is also entitled to be paid maintenance during the period of iddat..............” In paragraph 10 it was observed: “.......... 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. In paragraph 11 it was observed: **Crl.MC No.1440/2010** 5 “What does provision mean? Does it have the same meaning as maintenance? .................. Provision is the amount set aside to provide for known liability which cannot be quantified accurately; it is a provision for future use. ...........” It was further observed in paragraph 11: “............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.” ## Later a learned Judge in **Ahammed v. Aysha (1990 (1) KLT 172)** also upheld the order awarding maintenance during the period of iddat as well. 6. The constitutional virus of the enactment was challenged in the ## Supreme Court in **Danial Latifi v. Union of India (2001 (3) KLT 651)** . In paragraph 36, conclusions are summed up. There, it is held: “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 **Crl.MC No.1440/2010** 6 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 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. xxxxxxxxxxxx 4. xxxxxxxxxxxx”. 7. Thus it is clear that the liability under Section 3(1)(a) of the Act of the former husband is to provide maintenance for the divorced wife during the period of iddat as well as a reasonable and fair provision for her future maintenance. 8. In **Majeed v. Afira** (supra) relied by learned counsel it would appear that learned Magistrate had awarded `.1,62,000/- as reasonable and fair provision and maintenance at the rate of `.6,000/- per month from the date of divorce till re-marriage and an additional sum of `.7,500/- was awarded towards expenses and maintenance during the period of iddat (ie. for the period of three months from the date of divorce). That was held to be not permissible under Section 3(1)(a) of the Act obviously because `.1,62,000/- awarded as **Crl.MC No.1440/2010** 7 reasonable and fair provision and maintenance was from the date of divorce till re-marriage which included the period of iddat as well. That decision is distinguishable on its facts. 9. In the present case learned Magistrate has awarded `.3,750/- as expenses and maintenance during the period of iddat (as seen from paragraph 13 of the order) and a further sum of `.1,50,000/- was awarded as reasonable and fair provision and maintenance to take care of her future period. The amounts awarded do not over lap each other. Therefore the contention relying on **Majeed v. Afira** (supra) that learned Magistrate was not correct in awarding maintenance during the period of iddat additionally cannot be accepted. 10. Next argument is regarding what petitioner calls 'excessiveness of the amount awarded'. Learned counsel submitted that learned Sessions Judge has computed reasonable and fair provision and maintenance for future period at the rate of `.2,500/- per month for a period of five years which according to the learned counsel is excessive. 11. Learned Magistrate in Annexure-1, order stated that having regard to the facts and circumstances of the case, a sum of `.3,750/- could be awarded as expenses during the period of iddat. Towards future maintenance, `.1,50,000/- was awarded. The first respondent was aged 19 years at the time of marriage and was only 24 years at the time of divorce. It is seen from the order of learned Sessions Judge that future maintenance has been taken only for a **Crl.MC No.1440/2010** 8 period of five years. There is no rule or authority which said that multiplier to be adopted must be limited to 'five'. That depends on the facts of each case. I stated that first respondent was aged 19 years at the time of marriage and 24 years at the time of divorce. Assuming that the expenses required for future maintenance of first respondent is at the rate of `.1,250/- per month, there is nothing wrong in taking 'ten' as the multiplier which would bring the amount to `.1,50,000/-. Learned Sessions Judge has taken a different mode of assessment, at the rate of `.2,500/- for a period of five years. Either way the amount come to `.1,50,000/- which having regard to the needs of first respondent, I am not inclined to think, is excessive. Nor am I inclined to think that having regard to the circumstances of the case petitioner is incapable of paying the said amount. Petitioner did not enter the witness box. According to first respondent, petitioner is employed as Grade I Health Inspector. In that situation it was for petitioner to prove his actual income which he has not done. On the facts and circumstances of the case I do not find reason to interfere with the orders under challenge. Criminal Miscellaneous Case is dismissed. **THOMAS P.JOSEPH, Judge.** **cks**