RASIYA Vs. STATE OF KERALA

JUDGEMENT

(1.) DIVORCED wife, who seeks to get revised the order impugned by filing this revision, filed an application under Section 3 of the Musim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act') claiming Rs. 4 lakhs under various under heads the and learned Magistrate in M.C.1/99 on the file of the Judicial First Class Magistrate, N. Paravur, on an appreciation of the evidence adduced by the parties in support of their rival cases, awarded Rs. 1,92,000/- (Rs. 1,25,000/- towards reasonable and fair provision for future livelihood, Rs. 6,000/- "as maintenance for the period of Iddat", Rs. 24,000/- "as value of mehr" and Rs. 12,000/- "as maintenance for her child for two years"). Aggrieved by that order, the former husband prefered revision before the Additional Sessions Court, N. Paravur as Crl.R.P. No. 68/2000 and the learned Additional Sessions Judge, taking into consideration the fact that subsequent to the disposal of the M.C. the wife got remarried, reduced the amount payable by the former husband towards fair and reasonable provision for future livelihood of divorced wife to Rs. 75,000/-. "In other respects the order under challenge" (order passed by the Magistrate) has been confirmed by the revisional Court. This revision is sought to be filed assailing that part of the order passed by the revisional Court awarding only Rs. 75,000/- towards reasonable and fair provision for future livelihood of the divorced wife.

(2.) LEARNED counsel for the revision petitioner vehemently submitted before me placing reliance on observation made by this Court in Nizar v. Hyruneessa, 1999(2) RCR(Criminal) 355 (Kerala) : (1999(1) KLT 709) that the divorced wife is entitled to fair and reasonable provision under the provisions of the Muslim Women (Protection of Rights on Divoce) Act, 1986 till her death and learned Session Judge erred grossly in taking into consideration the subsequent event of divorced wife getting married during the pendency of the revisions before the Sessions Court. Counsel argued that the roder passed by the trial Magistrate suffers no infirmity on the ground that at the time of passing that order by the Magistrate the divorced wife was not married for second time and the fact of remarriage of the divorced wife which is only a subsequent event should not have been taken into consideration by the learned Sessions Judge while exercising his revisional powers for the reason that no illegality or irregularity has been committed by the trial Magistrate in awarding Rs. 1,25,000/- towards reasonable and fair provision for future livelihood. Counsel argued that under Section 3 of the Act the former husband is liable to make reasonable and fair provision within the period of iddat and as the divorced wife remained not married for second time during the pendency of the proceedings before the Magistrate, the Magistrate was, under law, bound to award reasonable and fair provision extending upto the period of the death of her as she was entitiled to get reasonable and fair provision extending to the whole life of her. Counsel also relied on the following observation made by His Lordship Justice Mohammed Shafi in Nizar v. Hyruneessa (1999(1) KLT 709) in support of his contention :

(3.) I need not dwell on the question whether any remedy is available to an erstwhile husband who discharges the obligation of providing reasonable and fair provision for whole of life of divorced wife during the period of iddat as mandated by the Act if divorced wife, after receiving the amount from her erstwhile husband during the period of iddat, remarries after the period of iddat or remarries during the period of iddat. (Marriage during the period of iddat is only regular). No provision is there in the Act to get back the excess amount paid (reasonable and fair provision received by the divorced wife beyond the period of remarriage) by the erstwhile husband. It appears, remedy of the erstwhile husband if any lies elsewhere. Whether a divorced women, who got remarried after receiving fair and reasonable provision for whole of her life from her erstwhile husband, is entitled to get from her second husband, on divorce by him or on obtaining divorce by her from him under Muslim law, fair and reasonable provision for whole of her life or till remarriage is a moot question. I need not make an attempt to answer this question.