ALIYAR Vs. PATHU

JUDGEMENT

(1.) LEARNED Single Judge who heard the revision petition has referred the same to a Division Bench in view of the contention that the application under S. 127 of the Code should have been disposed of not under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short'the Act' ).

(2.) THE Act came into force on 19-5-1986. S. 7 of the Act requires that every application by a divorced woman under S. 125 or 127 of the code pending before any Magistrate on the commencement of the Act shall notwithstanding anything contained in the Code, and subject to the provisions of S. 5 of the Act, be disposed of by such Magistrate in accordance with the provisions of the Act. THE contention is that since the application under S. 127 of the Code was pending before the Magistrate on the date of coming into force of the Act, the same should have been disposed of under S. 3 of the Act. According to learned counsel for the revision petitioner, under S. 3 of the Act, maintenance is payable by the former husband to the divorced wife only for the period of iddat and not for the post - Iddat period and hence the lower court should have cancelled the order directing the former husband to pay maintenance to the divorced wife for the period beyond the Iddat period. Learned counsel further made it clear that the enhancement of quantum of maintenance ordered for the children is not challenged.

(3.) SUB-s. (1) of S. 3 declares what divorced woman is entitled to in the context of divorce. Her rights are enumerated in clauses (a)to (d ). She is entitled to a reasonable and fair provision and maintenance to be made and paid to her within the period of Iddat by her former husband and where she herself maintains the children, she is entitled to reasonable and fair provision and maintenance to be made and paid by the former husband for a period of two years from the dates of birth of the children. She is entitled to get an amount equal to the sum of mahr of dower agreed to be paid to her, at the time of marriage or at any time thereafter according to Muslim law. She is entitled to all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any of his relatives or friends. This is the mandate of S. 3 (1) of the Act.