AHAMMED Vs. AYSHA

JUDGEMENT

(1.) This is a revision filed by the former husband of the petitioner in M.C.No.75 of 1987 on the file of the First Class Judicial Magistrate, Taliparamba. In this revision the husband complain that the order of the Magistrate directing him to pay Rs.12,000/- towards reasonable and fair provision and maintenance during the iddat period and also a sum or Rs.101/- towards mahar is illegal and not maintainable. The petitioner's counsel contends that in these proceedings which emanated on a petition under S.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act 25 of 1986) (hereinafter referred to as "the Act"), it is the bounden duty of the court to go into the question of means of the husband and then pass the orders as contemplated under the various sub-sections of S.3. If the wife is in affluent circumstances when compared to the husband, there is no need to pass an order. In the present case the court passed a composite order without specifying what amounts are payable under different heads mentioned in S.3(l) of the Act. He contends that while the petitioner, the former husband, is only a salesman getting Rs.440/- per month, the wife is in more affluent circumstances. She owns property, gets income from the property and she is also in receipt of remittances from her sons through the earlier marriage who are now employed in gulf countries. It is contended that the composite or the consolidated order is passed by the Magistrate without going into the question of the capacity of the husband to pay the amount and the relative financial position of the spouses. The petitioner's counsel places strong reliance upon Ali v. Sufaia, 1988 (2) KLT 94 , a single Judge decision of this court, which dealt with the scope and ambit of S.3 of the Act. The petitioner's counsel also places reliance upon various decisions of the different High Courts and the Supreme Court which deal with petitions for maintenance under the Hindu Marriage Act, under S.125 of the Cr.P.C, and S.488 of the old Cr.P.C, and claims that the husband can be directed to pay maintenance only where the wife is unable to maintain herself. As there is no finding to the effect that the petitioner's divorced wife is unable to maintain herself, the order under S.3 should not have been passed.

(2.) On behalf of Shri. P.A. Mohammed, Shri. A. T. Ramesh argues that proceedings under S.3 of the Act will have to be dealt with without reference to the principles applicable for granting maintenance under the Cr.P.C., Hindu Marriage Act, etc. This Act does not contemplate the inability of the wife to maintain herself. He also contends that the Revision Petitioner is a partner in a business and hence he is certainly having the means to pay the amounts ordered to be paid by the Magistrate.

(3.) The point for consideration is whether the order passed by the Magistrate is in conformity with the provisions of S.3 of the Act.