Kerala High Court
Rasiya vs State Of Kerala on 5 February, 2002
Equivalent citations: I(2003)DMC87
ORDER T.M. Hassan Pillai, J.
1. Divorced wife, who seeks to get revised the order impugned by filing this revision, filed an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act') claiming Rs. 4 lakhs under various heads and the learned Magistrate in M.C. 1/99 on the file of the Judicial First Class Magistrate, N. Paravur, on an appreciation of the evidence adduced by the parties in support of their rival cases, awarded Rs. 1,92,000/- (Rs. 1,25,000/- towards reasonable and fair provision for future livelihood, Rs. 6,000/- "as maintenance for the period of Iddat", Rs. 24,000/- "as value of mehr" and Rs. 12,000/- "as maintenance for her child for two years"). Aggrieved by that order, the former husband preferred revision before the Additional Sessions Court, N. Paravur as Crl. R.P. No. 6872000 and the learned Additional Sessions Judge, taking into consideration the fact that subsequent to the disposal of the M.C. the wife got remarried, reduced the amount payable by the former husband towards fair and reasonable provision for future livelihood of divorced wife to Rs. 75,000/-. "In other respects the order under challenge" (order passed by the Magistrate) has been confirmed by the revisional court. This revision is sought to be filed assailing that part of the order passed by the revisional Court awarding only Rs.75,000/- towards reasonable and fair provision for future livelihood of the divorced wife.
2. Learned counsel for the revision petitioner vehemently submitted before me placing reliance on observation made by this Court in Nizar v. Hyruneessa (1999 (1) KLT 709) that the divorced wife is entitled to fair and reasonable provision under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 till her death and learned sessions Judge erred grossly in taking into consideration the subsequent event of divorced wife getting married during the pendency of the revision before the Sessions Court. Counsel argued that the order passed by the trial Magistrate suffers no infirmity on the ground that at the time of passing that order by the Magistrate the divorced wife was not married for second time and the fact of remarriage of the divorced wife which is only a subsequent event should not have been taken into consideration by the learned Sessions Judge while exercising his revisional powers for the reason that no illegality or irregularity has been committed by the trial Magistrate in awarding Rs. 1,25,000/- towards reasonable and fair provision for future livelihood. Counsel argued that under Section 3 of the Act the former husband is liable to make reasonable and fair provision within the period of iddat and as the divorced wife remained not married for second time during the pendency of the proceedings before the Magistrate, the Magistrate was, under law, bound to award reasonable and fair provision extending upto the period of the death of her as she was entitled to get reasonable and fair provision extending to the whole life of her. Counsel also relied on the following observation made by His Lordship Justice Mohamed Shafi in Nizar v. Hyruneessa, 1999 (1) KLT 709 in support of his contention:
"9. Though while determining the quantum of fair and reasonable provision payable to the divorced woman the means of her former husband, the standard of life enjoyed by her during her marriage and the needs of the divorced woman should be taken into consideration, the period upto which the needs of the woman should be considered is not mentioned anywhere in Section 3 of the Act. The remarriage of the divorced woman is no criterion while determining the reasonable and fair provision to be paid by the former husband to his divorced wife. Therefore, the fact that the divorced woman had remarried during the pendency of the petition filed by her claiming reasonable and fair provision, is not a factor which determines the date to which she is entitled to fair and reasonable provision. What is contemplated under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act is that the former husband should make reasonable and fair provision to his former wife at the time of the divorce or at least within the period of iddat and once the former husband fails to make the provision without the period of iddat, his liability to pay reasonable and fair provision to his divorced wife becomes absolute.
10. The only fact to be considered by the Magistrate when the liability of the former husband to make reasonable and fair provision to the divorced wife is established, is the fixation of quantum as contemplated under Section 3(3) of the Act. Of course, if the wife gets remarried during the pendency of the petition, that fact also is a factor to be considered by the Magistrate keeping in view the object and reasons in enacting the provisions of the Muslim Women (Protection of Rights on Divorce) Act."
Counsel submitted that the divorced wife should not be deprived or denied of the right already accrued to her (entitlement of reasonable and fair provision for whole of her life) taking into consideration the subsequent event of getting married for second time on the ground that former husband was to provide to her reasonable and fair provision during the period of iddat and the former husband's liability to provide reasonable and fair provision to the divorced wife arises from the very moment of snapping the marital tie and ceasing to subsist the matrimonial relationship. Counsel submitted that divorced wife's right to get reasonable and fair provision from her former husband gets crystallised and become absolute on the very same day of effecting divorce.
3. Supreme Court has recently held in Danial Latif v. Union of India (2001 (3) KLT (SC) 65 = JT 2001 (8) SC 218) that nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond that. It would extend to the whole life of the divorced wife unless she gets married for a second time. Thus, it is clear from the law laid down by the Supreme Court in the above cited decision that the divorced wife herein is entitled to get reasonable and fair provision and maintenance only upto the date she got married for second time. In Nizar 's case also this Court held that the factum of remarriage of the wife is also a factor to be considered by the Magistrate keeping in view the object and reasons in enacting the provisions of the Act. Subsequent to the disposal of the M.C. by the Magistrate the divorced wife got married for second time (it is an undisputed fact), and therefore, learned Sessions Judge is justified in reducing the amount awarded towards reasonable and fair provision taking into consideration that subsequent event. Relief can be moulded taking into consideration the subsequent events also. No other contention is canvassed before me by the learned counsel for the revision petitioner challenging the correctness of the order passed by the learned Sessions Judge in the revision preferred by the former husband against the order passed by the Magistrate in the M.C. Division Bench of this Court in Aliyar v. Pathu, 1988 (2) KLT 446, held that besides paying maintenance to the divorced wife for the iddat period, former husband has to provide reasonably and fairly for the future needs of the divorced wife after the period of iddat till her remarriage or death. Another Division Bench of this Court in Kunhammed Haji v. Amina (1995(1) KLT 765) agreed completely with the reasoning and conclusions of the Division Bench in Aliyar v. Pathu, The following observation made by the Division Bench in Kunhammed Haji's case (supra) is also relevant in this connection:
' "9. We could thus hold that under Section 3(1)(a), a divorced Muslim woman is entitled to get a fair and reasonable provision made for her livelihood after the period of iddat apart from her right to get maintenance during the period of iddat. The liability of Muslim husband to maintain his divorced wife during her life time or till her remarriage as declared in Shah Bano 's case has only been substituted by a liability to make a fair and reasonable provision within the period of iddat as a condition for freeing the husband from all his liability to the divorced wife after the period of iddat as per Section 3(1)(a) of the Act."
4. I need not dwell on the question whether any remedy is available to an erstwhile husband who discharges the obligation of providing reasonable and fair provision for whole of life of divorced wife during the period of iddat as mandated by the Act and divorced wife, after receiving the amount from her erstwhile husband during the period of iddat, remarries after the period of iddat or remarries during the period of iddat. (Marriage during the period of iddat is only irregular). No provision is there in the Act to get back the express amount paid (reasonable and fair provision received by the divorced wife beyond the period of remarriage) by the erstwhile husband. It appears, remedy of the erstwhile husband, if any, lies elsewhere. Whether a divorced women, who got remarried after receiving fair and reasonable provision for whole of her life from her erstwhile husband, is entitled to get from her second husband, on divorce by him or on obtaining divorce by her from him under Muslim law, fair and reasonable provision for whole of her life or till remarriage is a moot question. I need not make an attempt to answer this question.
5. In view of the clear pronouncement of the Supreme Court in the decision cited supra and the decisions rendered by the Division Benches of this Court in Aliyar's case and Kunhammed Haji's case (cited supra), no reliance can be placed on the observation made by this Court in Nizar v. Hyruneesa (1999 (1) KLT 709) to accede to the contention of the learned counsel that divorced wife (revision petitioner) is entitled to get reasonable and fair provision for future livelihood from her former husband till her death. Magistrate's order awarding to her Rs. 1,25,000/- towards reasonable and fair provision cannot be sustained interfering with the order passed by the learned Sessions Judge.
6. It is also to be pointed out that Section 4(1) of the Act provides that a divorced woman, who is not remarried, and who is unable to maintain herself after the period of iddat is entitled to get reasonable and fair maintenance from her relatives, who would be entitled to her property on her death in accordance with Muslim Law. So, it is clear from Section 4(1) of the Act that a divorced wife, who has remarried is not entitled to claim fair and reasonable maintenance from her relatives, who would have inherited her property on her death according to Muslim law even if she is unable to maintain herself. I have relied on Section 4(1) of the Act only for the purpose of showing that a former husband's obligation or liability to provide reasonable and fair provision for future livelihood of his divorced wife after the period of iddat extends only upto the date of her remarriage, and if not married, till her death. As observed by this Court in Majitha Beevi v. Yakoob (1999 (1) KLT 796), mandate to make reasonable and fair provision is not in any way intended to harass the former husband or to enable the divorced wife to make any unlawful gain or unjust enrichment out of divorce. In view of the pronouncements of the Supreme Court and the Division Benches of this Court, it is unnecessary to dilate on the question whether the legal position is correctly laid down in Nizar v. Hyruneessa and that question need not be left to be decided by a larger Bench for an authoritative pronouncement.
No ground is made out to admit the revision. Hence this revision is dismissed.