The Allahabad High Court has said in an important decision that a divorced Muslim woman has the right to receive maintenance from her former husband, not only for the iddat period, it would extend to the whole life unless she gets married for a second time.
The Division Bench of Justice Surya Prakash Kesarwani and Justice Mohd Azhar Husain Idrisi passed this order while hearing an appeal filed by Zahid Khatoon.
The appeal under Section 19 of the Family Courts Act, 1984 has been filed praying to set aside the order dated 15.09.2022 passed by the Principal Judge, Family Court, Ghazipur in Criminal Misc Case under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and to pass suitable order awarding monthly maintenance in favour of the applicant/appellant alongwith direction for return of the properties to her as narrated in the application.
The applicant/appellant was married with the opposite party/ respondent on 21.05.1989 as per Muslim Rites and Ritual. Her father was working as a Sergeant in the Air Force. At the time of marriage, the opposite party/respondent was not employed. He came in service of the Postal Department subsequently and joined as Postal Assistant. Subsequent to joining of service, the opposite party/respondent gave divorce to the applicant/appellant on 28.06.2000 and thereafter he married with another Muslim woman some time in the year 2002.
However, he neither paid Mahr nor any maintenance amount nor returned the articles belonging to the applicant/appellant, therefore, the applicant/appellant filed on 10.09.2002 Criminal Misc Case under Section 3 of the Muslim Act, 1986 in the court of Vth Additional Civil Judge, Junior Division/ Judicial Magistrate, Ghazipur.
Subsequently, the aforesaid case was registered as Criminal Misc Case in the court of Judicial Magistrate, Ghazipur. Thereafter, the aforesaid case was transferred by the District Judge, Ghazipur on 21.12.2013 in the court of Family Judge/F.T.C-II, Ghazipur.
The applicant/appellant had also filed an application being Criminal Misc Case under Section 125 Cr.P.C in the court of Judicial Magistrate, Ghazipur, which was decided by order dated 29.08.2007 granting Rs 1500/- per month for the pre divorce period.
Against the said order, the applicant/appellant filed Criminal Revision in the court of Additional Sessions Judge, Ghazipur, which was dismissed by order dated 08.09.2009. The order of the revisional court was not challenged.
In Criminal Misc Case under Section 3 of the Muslim Act, 1986, the applicant/appellant led her evidence and her father. The opposite party/respondent led his own oral evidence and also led evidence of one Mohd Iqbal. The opposite party/respondent has not led any documentary evidence with regard to his income although applicant/appellant led her evidence and also cross examined the opposite party/respondent to establish his income as a government employee.
Aggrieved with the order dated 15.09.2022 passed by the Principal Judge, Family Court, Ghazipur in Criminal Misc Case, the applicant/appellant filed the appeal under Section 19 of the Family Courts Act, 1984.
Counsel for the applicant/appellant submitted that the appellant is entitled for maintenance from the opposite party/respondent for future period beyond the period of Iddat in terms of Section 3 of the Muslim Act, 1986 and law laid down by the Supreme Court in the case of Danial Latifi and another Vs Union of India (2001) 7 SCC 740.
He further submitted that the applicant/appellant has proved income of the opposite party/respondent by oral and documentary evidence and has also established that she has no source of income and she has not remarried.
He, therefore, submitted that the court below has committed a manifest error of law in refusing to grant a reasonable and fair amount for the future of the applicant/appellant. Therefore, the impugned order in so far as it refuses to grant relief as mentioned above, deserves to be set aside and the applicant/appellant may be granted fair and reasonable amount for her future including maintenance amount month to month to be paid by the opposite party/respondent.
Counsel for the opposite party/respondent has raised an objection that the Principal Judge, Family Court, Ghazipur had no jurisdiction to decide the case under Section 3 of the Muslim Act, 1986. The jurisdiction lies with the Magistrate and, therefore, the Principal Judge, Family Court, Ghazipur was incompetent to pass the impugned judgment and order. The second submission is that the onus was on the applicant/appellant to establish that she has no source of income and the opposite party has sufficient source of income. Since the applicant/appellant could not prove that she has no source of income, therefore, no amount towards maintenance could be granted to her.
He further submitted that the divorced muslim woman has no right to get any amount towards maintenance or for any other purposes except for the period of Iddat. Therefore, this Court cannot grant any amount either towards maintenance for future or reasonable and fair amount for her future until she remarries.
The Court said that the Muslim Act, 1986 is a piece of beneficial legislation enacted for welfare of such class of society who suffer great disparity and whose (her) investment in the marriage is the investment of her entire life which if breaks up and compensated in terms of money towards here livelihood, partakes the character of basic human rights to secure gender and social justice which is universally recognised by persons belonging to all religions and it is difficult to perceive that Muslim law intends to provide a different kind of responsibility and to deprive a divorced lady to any means of livelihood resulting in social injustice and leaving her life as curse. Keeping in mind these great realities of a class of society, the provisions of the Muslim Act, 1986 has to be interpreted.
The Court observed that,
Thus the correct position of law is that under Section 3(2) of the Muslim Act, 1986, a divorcee can file an application before a Magistrate if her former husband has not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered the properties given to her before or at the time of her marriage by her relatives or friends or the husband or any of his relatives or friends.
Under Section 3(3) of the Muslim Act, 1986, an order can be passed directing the former husband of the divorcee to pay to her such reasonable and fair provision and maintenance as deemed fit and proper having regard to needs of the divorced woman, her standard of life enjoyed by her during her marriage and means of her former husband. The word “provision” used in Section 3 of the Muslim Act, 1986 indicates that something is provided in advance for meeting some needs.
In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. “Reasonable and fair provision” may include provision for her residence, her food, her clothes, and other articles.
In the case of Danial Latifi and another (supra), the Supreme Court has fairly interpreted the provisions of Section 3 with regard to fair provision and maintenance and held that “it would extend to the whole life of the divorced wife unless she gets married for a second time”.
“From the facts and legal position as discussed above, we have no hesitation to hold that the Principal Judge, Family Court has committed a manifest error of law in its impugned judgement and order dated 15.09.2022 in Criminal Misc Case to hold that the applicant-appellant herein is entitled for maintenance only for the period of iddat, i.e for three months and 13 days @ Rs1500/- per month.
Apart from above, we find that the court below has not properly considered the various evidences on record regarding the properties given to the applicant-appellant before or at the time of marriage or after marriage by her relatives or friends or the husband or relatives or the husband or his friends. Therefore, the findings of the court below on this aspect of the matter can also not be sustained”, the Court further observed while allowing the appeal.
“For all the reasons aforestated, the order dated 15.09.2022 in Criminal Misc Case passed by the Principal Judge, Family Court, Ghazipur is hereby set aside and Criminal Misc Case is restored to its original number.
Matter is remitted back to the competent court, i.e concerned Magistrate to decide the Criminal Misc Case determining the amount of maintenance and return of properties to the applicant-appellant herein by the respondent husband in accordance with law, positively within three months from the date of presentation of a certified copy of the order, without granting any unnecessary adjournment to either of the parties.
For a period of three months or till the aforesaid Criminal Misc Case is decided, whichever is earlier, the respondent No 3 herein shall pay to the applicant/ appellant herein a sum of Rs 5000/- per month before the 10th day of each month towards interim maintenance”, the order reads.