IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1762 of 2002()
1. K.ANDU RAHIMAN, S/O.ALI, VALANCHERY,
... Petitioner
Vs
1. NOORJAHAN, D/O.KARUNADAN AHAMMED, MONGAM
... Respondent
2. THE STATE OF KERALA, REP.BY THE
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.JOJI MATHEW
The Hon'ble MR. Justice R.BASANT
Dated :24/05/2010
O R D E R
R.BASANT, J
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Crl.R.P No.1762 of 2002 (C)
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Dated this the 24th day of May, 2010
O R D E R
What is the correct concept of the payment under
Section 3(1)(b) of Muslim Women (Protection of Rights on
Divorce) Act, 1986 ?
This interesting question arises incidentally in this case.
2. This revision petition is directed against an order
passed by the learned Sessions Judge, Manjeri, enhancing the
quantum of fair and reasonable provision which the petitioner
was ordered to pay under Section 3 of Muslim Women
(Protection of Rights on Divorce) Act, 1986.
3. The relevant facts can be narrated as follows. The
petitioner and the respondent were spouses. The petitioner
divorced the respondent on 04.07.1997. At the time of divorce, 2
children born in the wedlock were with the respondent and the
respondent was looking after the said children. The children
were born on 17.04.1995 and 13.04.1997 respectively. Amounts
were claimed towards:
Crl.R.P No.1762 of 2002 2
i) Maintenance during the period of Iddat;
ii) Amounts for the wife for maintaining the 2 children
until the children attain the age of 2 years; and
iii) Reasonable provision for the wife after divorce.
4. Before the learned Magistrate, the claim was resisted.
Marriage, divorce and the fact that 2 children were there at the
time of divorce were not disputed. There is virtually no dispute
about the age/date of birth of the children. The trial court
directed payment of the following amounts.
i) Maintenance during the period
of iddat - Rs. 3,000/-
(3 X 1,000)
ii) Maintenance till
the children attain 2 years
(Rs.3,600 X 2 children) - Rs. 7,200)
iii. Matah, ie. reasonable provision – Rs.48,400/-
(Basis not revealed specifically)
………………..Total : Rs.58,600/- ....................5. There was a contention that a further amount of
Rs.44,5000/- had already been paid. The wife admitted receipt of
the said amount of Rs.44,500/- by demand draft, but asserted
that, that amount was not paid for the discharge of the liability
Crl.R.P No.1762 of 2002 3
towards the amounts claimed in the petition. Nothing was made
available to controvert that assertion of the wife. The learned
Magistrate accepted that assertion.
6. Both parties approached the Sessions Court in
revision. The Sessions Court, by the impugned order, enhanced
the amount of reasonable provision awarded by the court below.
The same was enhanced from Rs.48,400/- to Rs.96,000/-. The
learned Sessions Judge took the view that 8 years can be
reckoned as the multiplier and it was accordingly that
Rs.96,000/- was awarded as fair and reasonable provision. The
order of the learned Magistrate was upheld on all other aspects.
7. The Sessions Court by the impugned order directed
payment of the following amount.
i) Maintenance for the period of Iddat (3 X 1000) -Rs. 3,000/- ii) Maintenance for the mother till the children attain the age of 2 years (basis not clear) - Rs. 7,200/- iii) Fair and reasonable provision - Rs. 96,000/- (12 X 8 X 1000) ..................... Total - Rs.1,06,200/- ...................... Crl.R.P No.1762 of 2002 48. Aggrieved by the enhancement of the matah amount
by the learned Sessions Judge in revision, this further revision
petition has been filed by the revision petitioner. According to
him, the bar of Section 397(3) will not apply as he is not seeking
revision of the order passed by the learned Magistrate as upheld
by the Sessions Court, but he is challenging the order passed by
the Sessions Court in revision. It is accordingly that this revision
petition was admitted. I agree that the revision petition is
maintainable.
9. Arguments have been advanced before me. The short
contention raised by the learned counsel for the revision
petitioner is that the Sessions Court erred grossly in reckoning 8
as the multiplier and directing payment of an amount of
Rs.96,000/- (8X12X1,000) as reasonable provision for the future.
There was no justification in reckoning 8 as the multiplier,
argues the learned counsel for the petitioner.
10. The learned counsel for the respondent/divorced wife
on the contrary contends that the total amount of Rs.1,06,200/-
awarded to the wife by the learned Sessions Judge in the order
sought to be revised is too meagre and inadequate. It is much
less than the amount which the respondent is actually entitled to.
Crl.R.P No.1762 of 2002 5
The learned counsel submits that the learned Sessions Judge
committed no error in reckoning 8 as the multiplier. The wife
was aged 27 years. She had the responsibility of maintaining 2
children born on 17.04.95 and 13.04.97 when she was divorced
on 04.07.97. The husband was well established. He was running
a travel agency. He was admittedly the sole proprietor of the
said travel agency. The wife had asserted that he has a monthly
income of Rs.15,000/-. The husband, though he denied that
assertion, did not place any material before Court or make any
specific assertion as to what amount he was earning every
month. With 2 infant children, there was no prospect of an
immediate remarriage for the wife. She was not employed
admittedly. In these circumstances, the learned Sessions Judge
was absolutely justified in reckoning the multiplier as 8 years
and in awarding an amount of Rs.96,000/- as reasonable
provision for the future, contends counsel.
11. The learned counsel for the respondent submits that
the courts below have not correctly appreciated the nature of the
payment that is contemplated under Section 3(1)(b) of the
Muslim Women (Protection of Rights on Divorce) Act, 1986. We
extract Section 3 (1) (b) below.
Crl.R.P No.1762 of 2002 6
“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) …………………………….
…………………………….
(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
a period of two years from the respective dates
of birth of such children.”(emphasis supplied)
The amount payable under Section 3(1)(b) is not the
maintenance for the children. It is only maintenance for the
wife. That is the entitlement of the wife – not her children. 3
months’ maintenance has to be paid for maintenance of the wife
during the period of iddat. But if children are born in the
wedlock and the children are aged below 2 years, the divorced
husband has the legal obligation under Section 3(1)(b) to
maintain the wife until the last of such children attains the age
of 2 years. Payment under Section 3(1)(b) is payment for the
mother and not payment for the children. This is clear from the
language of Section 3(1)(b) as also the commentary by Abdullah
Yusuf Ali. The learned Sessions Judge had extracted Ayat 6 of
Crl.R.P No.1762 of 2002 7
Sura 65 of the Holy Quran in para.16 of the order in revision. It
reads as follows:
“Let the women live
(In Iddat) in the same
style as ye live,
According to your means:
Annoy them not, so as
To restrict them,
And if they carry (life
in their wormbs), then
Spend (your substance) on them
Until they deliver
Their burden: and if
They suckle your (offspring),
Give them their recompense:
And take mutual counsel
Together, according to
What is just and reasonable,
And if ye find yourselves
In difficulties, let another
Woman suckle (the child)
On the (father’s) behalf.”12. The learned Magistrate awarded the amount of
Rs.7,200/- under Section 3(1)(b) assuming the same to be
amount of maintenance for the children. This is incorrect,
submits the counsel. The learned Sessions Judge understood the
concept of payment correctly and observed as follows:
“The above would indicate that what is being
awarded under S.3(1) of the Act is not maintenance
to the children but, the divorced woman is being
compensated for suckling the children. Hence, theCrl.R.P No.1762 of 2002 8
argument of the learned counsel for the respondent
in this regard cannot be accepted. The amount
awarded to the petitioner on that count cannot be
said to be excessive.”
But the learned Sessions Judge did not direct payment of the
amount that would actually be payable for maintenance of the
wife under Section 3(1)(b), complains the learned counsel for the
respondent. Rs.3,600/- each for the 2 children and not
maintenance for the wife till the children attain the age of 2
years was awarded even by the Court of Revision and this is not
in tune with the language and purpose of Section 3(1)(b), argues
counsel.
13. It is evident that this payment under Section 3(1)(b) of
the Act is to be made for the maintenance of the wife and not for
the children. The amount paid under Section 3(1)(b) cannot
absolve the husband/father of the responsibility to pay
maintenance for the children till they attain the age of 2 years.
The language of Section 3(1)(b) and the stipulations in the
Quran, extracted above clearly show that this payment is to be
made for the wife. Attainment of 2 years by the youngest child
after divorce is stipulated as the period till which the husband
will have to pay maintenance to the wife. We find this
Crl.R.P No.1762 of 2002 9
proposition to be absolutely correct. The counsel hence
contends that in the instant case, the husband has to pay
maintenance during the period of iddat. In addition he has to
pay maintenance for the wife till the children attain the age of 2
years. Further he has to make fair and reasonable provision for
the future of the wife. In this view of the matter, the youngest
child would have attained the age of 2 years only on 13.04.1999.
The divorce was on 04.07.1997. The husband hence has the
obligation to pay maintenance to the wife for a period of 21
months, ie. from 04.07.1997(date of divorce) to 13.04.1999 (the
date on which the younger child attained the age of 2 years). At
the rate accepted by the courts below, an amount of Rs.21,000/-
(21 X 1000) was hence liable to be paid as maintenance for the
wife till the youngest of the 2 children attained the age of 2
years. In that place, only an amount of Rs.7,200/- has been paid.
There is a deficit of Rs.13,800/- under Section 13(1)(b) of the
Act. After giving due provision for that, it can be seen that
actually only an amount of Rs.82,200/- has been paid as fair
provision for the future. That would mean that the multiplier
adopted is actually much below 8 years (96 months). It would be
Crl.R.P No.1762 of 2002 10
the maintenance payable only for a period of 82.2 months. The
following statement reveals the force of this contention.
Actually Payable Present direction
Maintenance for iddat Rs. 3,000/- Rs. 3,000/-
period (3X1000)
Amount u/s 3(1)(b) Rs.21,000/- Rs. 7,2000/-
(21X1000)
Reasonable provision Rs.96,000/- Rs.96,000/-
(12X8X1000) (12X8X1000)
Total Rs. 1,20,000/- Rs.1,06,200/-
Difference = Rs.13,800/-
14. I find force in the contention of the learned counsel
for the respondent. Whereas an amount of Rs.1,20,000/- would
have been payable if the multiplier were reckoned as 8 years.,
only an amount of Rs.1,06,200/- has been directed to be paid. In
any view of the matter, I am satisfied that the impugned
direction to pay an amount of Rs.96,000/- as fair and reasonable
provision (which actually works out to a direction to pay 82.2
months’ maintenance in all as fair and reasonable provision for
the future) does not warrant interference as the total amount
directed to be paid appears to be much below the actual amount
to which the wife is entitled on a correct computation of the
amount.
Crl.R.P No.1762 of 2002 11
15. This revision petition is, in these circumstances,
dismissed.
(R.BASANT, JUDGE)
rtr/-