SYED FAZAL POOKOYA THANGAL Vs. UNION OF INDIA

JUDGEMENT

(1.) For the first time in the history of this State the jurisdiction under Section 4(2) of the Muslim Women (Protection of Rights on Divorce) Act 25 of 1986 (the Act) was invoked when the Judicial Magistrate of the First Class, Perinthalmanna passed order on 30/09/1992, directing the Kerala Wakf Board to make payment of maintenance to one Jameela, daughter of Chenangara Avaran, at the rate of Rs. 250/- per month. A copy of this order is Ext.P1 and it was passed in Maintenance Case No. 2 of 1990 on the file of the said Magistrate. Jameela is a divorced Muslim wife, who moved the court for relief under Section 3 of the Act and was granted a sum of Rs. 15,400/- by the order in M.C. No. 59 of 1986. She could however realise only an amount of Rs. 6,000/- out of the amount so granted, by attachment and sale of the property of her ex-husband the respondent in that case. The ex-husband was sent to jail for non-payment of the balance amount. Jameela had no property, or source of income, to maintain herself and her three children. Her near relatives (and legal heirs) were her parents, but they were unable to maintain her because of their impecuniosity. Therefore, Jameela claimed maintenance from the Kerala Wakf Board at the rate of Rs. 350/- per month invoking S. 2 of the Act.

(2.) The Wakf Board contested the application with the pleas (as seen from the summary of the pleadings in Ext.P1) that Jameela was capable of maintaining herself, that her parents were also bound to look after her, that the property of the Wakf Board could be utilised only for religious purposes and therefore the petition should be dismissed.

(3.) The Judicial Magistrate of the First Class found on trial that Jameela did not have the means of maintaining herself, that her parents who were only getting odd coolly jobs occasionally were also not capable of maintaining her and therefore Section 4(2) of the Act was attracted. The Wakf Board was accordingly directed to pay adequate maintenance to Jameela, which was fixed at Rs. 250/- per month. This was ordered to be paid from the date of the miscellaneous case, namely 5/01/1990. This order has not been challenged by the Wakf Board in any revision filed under the provisions of the Code of Criminal Procedure 1973. On the other hand, the petitioner Syed Fazal Pookoya Thangal, who is the Chairman of the Kerala Wakf Board has filed this original petition challenging the constitutional validity of S. 4(2) of the Act, and therefore of the order Ext.P1.