Sheikh Israfil Mohammad v. Anwari Begum

Sessions Judge Kabirdham in Criminal Revision No. 49/2008 affirming the order dated 24.4.2008 passed by the Judicial Magistrate First Class, Kawardha in Criminal Case No. 130/2007 whereby learned Magistrate has awarded maintenance in favour of the respondent under Section 3(2) of the Muslim Women (Protection of Rights on Divorce) Act 1986 (for brevity "the Act").

The order is challenged on the ground thatthe Courts below have committed an illegality in awarding the maintenance in favour of a divorced Muslim woman in violation ofthe provisions of Section 3(2) oftheAct.

The facts of the case in brief are that the respondent was married to the petitioner. Both.the petitionerandthe respondent are Muslims. Previously the respondent filed a petition under Section 125 of the Code of Criminal Procedure —2-— (for brevity "the Code") for maintenance which was dismissed by the Competent Court on the ground that the divorced Muslim woman is not entitled for maintenance in accordance with Section 125 of the Code. Then she filed a petitionfor maintenance under the provisions of Section 3(2) of the Act stating therein that she is entitled for Mahr as well as monthly maintenance of Rs. 3000 after divorce which was not paid to her after the period of Iddat. The said petition was opposed by the present petitioner on the ground that he is liable to pay maintenance only till Iddat which he has already paid and he is not liable to pay future maintenance according to the provisions of Section 3(2) of the Act. After affording opportunity of hearing to the parties, the Magistrate awarded the maintenance of Rs. 1200 per month from the date on which divorce was effected apart from the amount of Mahr. Against the said order the revision was preferred which wasdismissed and the order passed by the Magistrate was affirmed.

Heard counsel for the parties and perused the material available on record including the orders passed by both the Courts below.

Counsel for the petitioner submits that in this case the respondent is a divorced Muslim woman. The petitioner who is the husband ofthe respondent is liable to the maintenance till the period of Iddat in accordance with the provisions of Section 3(2) (a) of the Act. Counsel for the petitioner further submits that if the respondent is not able to maintain herself after the period of Iddat, the other relatives who are entitled to inherit her property on her death or the Wakf Board are liable to maintain her. In accordance with Section 4 of the Act the present petitioner is not liable for the maintenance of the respondent after the period of Iddat but in this case the courts below have awarded the future maintenance after Iddat and thereby committed illegality. It is submitted that Section 3 and 4 of the Act begin with the word "notwithstanding" and thus excludes any other law for the time being in force. In other words they being the npn obstante clause exclude any other provision for the time being in force. Reliance is placed on the decision of the Supreme Court in the matter of Mannalal Khetan etc. vs. Kedar Nath Khetan and others etc. in which it has been held negative, prohibitory and exclusive words are indicatiye of the legislative intent when the statute is mandatory. Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statutory provision imperative.

On the other hand counsel for the respondent supported the impugned order and submitted that a divorced Muslim woman is entitled for future maintenance and the husband is under obligation to make fair provisions for the same within the period of Iddat but he has not made any provision for the future maintenance and therefore he is liable for the future maintenance of respondent during her lifetime. The courts below have not committed any illegality or irregularity in awarding the maintenance in favour of the respondent. Reliance is placed on the decision of the Supreme Court in the matter of Iqbal Bano v. State of U.P. and another^ in which it has been held that liability of a Muslim husband to his divorced wife under Section 3(1) (a) of the Act is not confined to the period of Iddat. He is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance.

In this case both the petitioner and the respondent being Muslim are governed by the Muslim Law. For the maintenance of divorced Muslim woman special Act has been enacted by the Parliament. Sections 3 and 4 of the Act read as under:

3. Mahr or other properties of IVIuslim woman to be given to her at the time of divorce. - (1) Notwithstanding anything contained in any otherlaw for the time being in force, adivorced 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 bom to her before or after her divorce, a reasonable and fair provision and