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 S.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Act) claiming Rs. 4 lakhs under various heads and the 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 preferred 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 (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 Divorce) Act, 1986 till her death and learned sessions Judge erred grossly in taking into consideration the subsequent event of divorced wife getting married during the pendency of the revision before the Sessions Court. Counsel argued that the order 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 S.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 entitled 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 Mohamed Shafi in Nizar v. Hyruneessa, 1999 (1) KLT 709 in support of his contention:

(3.) Supreme Court has recently held in Danial Latif v. Union of India (2001 (3) KLT (SC) 65) that nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond that. It would extend to the whole life of the divorced wife unless she gets married for a second time. Thus, it is clear from the law laid down by the Supreme Court in the above cited decision that the divorced wife herein is entitled to get reasonable and fair provision and maintenance only upto the date she got married for second time. In Nizars case also this Court held that the factum of remarriage of the wife is also a factor to be considered by the Magistrate keeping in view the object and reasons in enacting the provisions of the Act. Subsequent to the disposal of the M.C. by the Magistrate the divorced wife got married for second time (it is an undisputed fact), and therefore, learned Sessions Judge is justified in reducing the amount awarded towards reasonable and fair provision taking into consideration that subsequent event. Relief can be moulded taking into consideration the subsequent events also. No other contention is canvassed before me by the learned counsel for the revision petitioner challenging the correctness of the order passed by the learned Sessions Judge in the revision preferred by the former husband against the order passed by the Magistrate in the M.C. Division Bench of this Court in Aliyar v. Pathu, 1988 (2) KLT 446 , held that 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 after the period of iddat till her remarriage or death. Another Division Bench of this Court in Kunhammed Haji v. Amina (1995(1) KLT 765) agreed completely with the reasoning and conclusions of the Division Bench in Aliyar v. Pathu. The following observation made by the Division Bench in Kunhammed Hajis case (supra) is also relevant in this connection: