SAJIDA Vs. AZIZ ABDULLA DASURKAR

JUDGEMENT

(1.) THE petitioner has challenged the order of Metropolitan Magistrate, 33rd Court, Ballard Pier, Bambay, dated July 30, 1994, allowing her a sum of Rs. 5,000/ - as fair and reasonable maintenance for the 'Iddat' period and also return of some articles which were given to her at the time of marriage, in this criminal writ petition.

(2.) THE petitioner had challenged the order of the Metropolitan Magistrate in Criminal Appeal No. 516 of 1994 in this Court. The appeal came up for hearing before a learned Single Judge on October 5, 1994 and the learned Single Judge granted relief to the appellant to convert the criminal appeal into writ petition.

(3.) THE only question which survives for consideration is whether the petitioner is entitled to maintenance from her former husband even after 'Iddat' period ? Learned Counsel for the petitioner submits that the former husband of the petitioner is under a legal obligation to provide maintenance for his divorced wife. She submits that Section 3 of the Act speaks of 'a reasonable and fair provision and maintenance to be made and paid' to a divorced woman by her former husband and that this reasonable and fair provision and maintenance' will not enure only within the 'Iddat' period. Section 3 of the Act reads thus : '3. Mahr or other properties of Muslim woman to be given to her at the time of divorce -(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to : (a) a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband; (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for period of two years from the respective dates of brith of such children; (c) an amount equal to the sum of Mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law; and (d) 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 relatives of the husband or his friends. (2) Where a reasonable and fair provision and maintenance or the amount of Mahr or dower due has not been made or paid or the properties referred to in Clause (d) of Sub -section (1) have not been delivered to a divorced woman on her divorce, she or anyone duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, Mahr or dower or the delivery of properties, as the case may be. (3) Where an application has been made under Sub -section (2) by a divorced woman, the Magistrate may, if he is satisfied that - (a) her husband having sufficient means, has failed or neglected to make or pay her within the Iddat period a reasonable and fair provision and maintenance for her and the children; or (b) the amount equal to the sum of Mahr or dower has not been paid or that the properties referred to in Clause (d) of Sub -section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such Mahr or dower or the delivery of such properties referred to in Cluase (d) of Sub -section (1) to the divorced woman : Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period. (4) If any person against whom an order has been made under Sub -section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or Mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974), and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.' Clause (a) of Sub -section (1) says that a divorced woman is entitled to a fair and reasonable provision and maintenance within the Iddat period. The term 'Iddat period' has been defined in Clause (b) of Section 2 of the Act. Clause (b) of Sub - section (1) says that where a divorced woman herself maintains the children, born to her before or after the divorce, she is entitled to a reasonable and fair provision and maintenance for a period of two years from the date of birth of the child. This is the right of the divorced woman and therefore child's right to claim maintenance under Section 125, Cr.P.C, 1973 is, however, not affected by this Clause. Clause (c) of Sub -section (1) says that the divorced woman is entitled to receive an amount equal to the sum of Mahr or dower agreed to be paid at the time other marriage or after her marriage. Under Clause (d) of Sub -section (1), a divorced woman is entitled to all the properties given to her before or at the time of marriage or after her marriage by her relatives, friends or husband or relatives of the husband or husband's friends. Sub -sections (2) and (3) of Section 3 provide for situations where the husband fails to comply with any of the provisions of Clauses (a) to (d) of Sub -section (1). In such situations, the divorced woman can enforce her right by presenting an application, herself or through one authorised by her, to the Magistrate; if the Magistrate is satisfied that her claim is true he is bound to pass orders on her application in accordance with the provisions of Sub -section (3) within one month of the date of filing of the application unless he finds it impracticable to do so within the said period; however, in such cases he has to record reasons for not disposing of the application within one month. Sub -section (4) of Section 3 relates to execution of order passed by Magistrate. By this sub -section, the Magistrate has been empowered to issue warrant for levying the amount of maintenance or Mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure. Section 4 deals with the divorced woman's right to claim reasonable and fair maintenance from her relatives. Sub -section (1) of Section 4 envisages that a divorced woman is entitled to claim a reasonable and fair maintenance from such of her relatives as would be entitled to inherit her property on her death according to Muslim Law provided she has not remarried and is not able to maintain herself. Such maintenance shall be payable by such relatives in proportion to the share which they would inherit in her property and at such periods as the Magistrate may specify in his order. But if the divorced woman has children, the liability to maintain lies on them first. In the event of her children being unable to maintain her, she can claim maintenance from her parents or other relatives. Section 4 starts with the non -obstante clause which mentions the foregoing provisions of Section 3 of the Act. So the liability of the relatives to maintain a divorced woman unable to maintain herself arises irrespective of what then she claims and gets from her former husband. The only test is her inability to maintain herself. Also, the liability of the relatives does not seem to depend on the contingency that the divorced woman has property which they can inherit, nor would it seem to absolve any relative on the plea that it is most likely that in view of his or her advanced age or illness he or she would predecease her. Under Sub -section (2) of Section 4, if the divorced woman has no relatives as mentioned in Sub -section (1) or such relatives have not enough means to pay her maintenance, the Magistrate may direct the State Wakf Board functioning in the area in which the woman resides, to pay maintenance to her.