1. The twin questions that arise in this revision are:

i) Whether a divorced muslim woman is entitled to the provision and maintenance for the Iddat period only under section 3 of the Muslim Women's (Protection of Rights on Divorce) Act, 1986, and

ii) Whether the grant of maintenance made in an application filed under section 125 Cr. P.C, subsequent to the coming into force of the Muslim Women's (Protection of Rights on Divorce) Act is a nullity?

2. The brief facts in this revision are: The petitioner husband married the 1st respondent in 1968 and after the 2nd respondent was born he divorced her in 1971. In the year 1985 the respondents filed a petition under sec. 125 Cr. P.C, for grant of maintenance. Pending that petition the Muslim Women's (Protection of Rights on Divorce) Act (hereinafter referred to as ‘the Act’) came into force and in July, ‘87 that petition was allowed by granting maintenance of Rs. 125/- per month to the 1st respondent and Rs. 75/- per month to the 2nd respondent. The contention of the husband is that the order made in July, ‘87 without observing the transitional provision, viz. section 7 of the Act, is a nullity. Even otherwise also, it is next contended, as per section 3 of the Act the husband is liable to pay maintenance to the divorced woman only for the IDDAT period of three months and not beyond that and therefore the maintenance granted is illegal. Earlier to the advent of the Act, muslim divorced women used to move the Criminal Court for grant of maintenance under sec. 125 Cr. P.C, and for its alteration under section 127 Cr. P.C Sub-section (3) of sec. 127 Cr. P.C provides:

“127. Alteration in Allowance:……

(3) Where any order has been made under section 125 in favour of a woman who has been divorce by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—

(a) ……………

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order…”

3. Thus, section 127(3) Cr. P.C, mandates that the order granting maintenance shall be cancelled if it is established that the divorced woman has received the full sum payable on such divorce as per the customary or personal law applicable to the parties. In Mohd. Ahmed Khan v. shah Bano Begum (1) AIR 1985 (2) S.C page 945 one of the questions that fall for decision before the Supreme Court was whether MAHR is an amount payable on divorce to attract section 127(3) Cr. P.C While considering that question the Supreme Court held:

“The fact that deferred Mahr is payable at the time of the dissolution marriage, cannot justify tie contention that it is payable “on divorce”. Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression “on divorce” which occurs in section 127(3)(b). If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce.”

4. Thus, it is held that Mahr is not the amount payable by the husband to the wife on divorce so as to attract sec. 127(3)(b) Cr. P.C

5. The other important question before the Supreme Court was, the existence or otherwise of any conflict between the provisions of section 125 Cr. P.C, and the Muslim Person Law on the question of Muslim husband's obligation to provide maintenance for a divorce wife who is unable to maintain herself. Adverting to this question, the Supreme Court held:

“The statements in the text books viz. Mulla's Mahomedan Law (18th edition): Tyabji's Muslim law (4th edition) are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife who is unable to maintain herself. Section 125 deal with cases in which, a person who is possessed of sufficient means neglects or refuses to maintain, among others, his wife who is unable to maintain herself. Since the Muslim Personal Law, which limits the husband's liability to provide for the maintenance of the divorce wife to the period of iddat, does not contemplate or countenance the situation envisaged by section 125, it cannot be said that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance, beyond the period of iddat, to which divorced wife who is unable to maintain herself. The true position is that if the divorced wife is able to maintain herself, the husband's liability to provide maintenance far her cases with the expiration of the period of iddta. If she is unable to maintain herself she is entitled to take recourse to section 125.”

6. The Supreme Court, thus, held that there is no conflict between the Muslim personal law and the provisions of section 125 Cr. P.C, and that there is nothing in the personal law saying that the husband is not under an obligation to provide maintenance to his divorced wife beyond the iddat period, if she is not able to maintain herself, Consequent upon this decision, there arose a situation necessitating the Parliament to make the Act.

7. Section 3 of the Act enumerates different items which a muslim woman is entitled to on her divorce. It runs thus:

“Section 3. Mahr or other properties of Muslim woman to be given to her at the time of divorce. (1) Notwithstanding anything contained in any 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 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 a period of two years from the respective dates of birth 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 there after 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 friend or the husband or any relatives of the husband or his friends.

8. Clause (a) of sub-section (1) of section 3 refers to the entitlement to ‘a reasonable and fair provision and maintenance to be made and paid to her within the iddat period’. The submission of the learned counsel for the petitioner is that the husband is liable to pay to the divorced wife maintenance only for the iddat period and not beyond that. The provision and maintenance contemplated by clause (a) mean the same and if they are reasonable and fair and paid for the IDDAT period the liability of the husband thereunder ceases. I am not able to agree with this contention. The expression used is “within the IDDAT period” and not ‘for the Iddat’ period. The crucial word is ‘within’ and not ‘for. The word ‘within’ is quite plain and the con-temptation of section 3(1)(a) is to make the provision and to pay the maintenance within the iddat period. As held in AIR 1960 SC 936, (1974) 4 SCC 222 : AIR 1974 SC 1818 and (1975) 4 SCC 22 : AIR 1975 SC 1039 the intention of the legislature has to be gathered from the words used by it giving to the words their plain, normal and grammatical meaning. The word ‘within’, would mean ‘on or before’, ‘not beyond’, ‘not later than’. It cannot be said that ‘within’ means ‘for’ so as to limit the liability of the husband to make the provision and pay the maintenance only for the iddat period. The next rule, Simonds calls it ‘elementary’. Lord Somervell of Harrow ‘compelling’ and Mukherjea, J. ‘settled’, is to read the statute as a whole so as to find out the true intention of the legislature. It is interesting to note that clause (b) of section 3(1) in relation to the children is specific in saying ‘provision and maintenance to be made and paid by her former husband for a period of two years.’ The word used is ‘for’, and it is not so in so far as clause (a) is concerned. Therefore, had the legislature wanted that the liability should be confined under clause (a) to the IDDAT period only, it could have very well used the word ‘for’ and not ‘within’, more so when it so used the word in the very succeeding clause (b). This view further derives fortification, when we read sub-section (3) to section 3. To the extent relevant it reads thus:

“(3) Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that—

(a) …………..

(b) …………..

make an order, within one month of the date of 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 it and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage………”

9. It is under sub-section (2) to section 3, the divorced woman would file the application for non-compliance with section 3(1). The making of such an application shall be only after the IDDAT period since the husband had time till the expiry of the IDDAT period to comply with section 3(1). While deciding that application under section 3(3), the Magistrate determines the reasonable and fair provision and maintenance ‘having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage…..’. These guiding factors for purposes of determining the fair and reasonable provision and maintenance do imply that the provision and maintenance is for a period far beyond IDDAT, lest the wording of the factors as quoted would have been quite different specifically confining the needs of the divorced woman to the period of IDDAT. The next sources of interpretation to gather the true intention of the legislature are the preamble of the Act and the objects and reasons of the enactment. The preamble of the Act reads:

“An Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto.”

10. The statement of objects and reasons as published in Gazette of India (Extraordinary) Part-II S. 2 dated 25-2-1985 reads:

“This decision (Mohd. Ahmed Khan v. Shah Bano Begum), has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests.”

11. Thus, the main intendment behind bringing in the legislation is to protect the interests of the divorced muslim women—a legislation beneficial to the interests of the muslim divorced women. In J.R Sen Gupta v. AK Bose (2) (1975) 2 SCC 526 : AIR 1975 SC page 1994 at 1996, the Supreme Court held that:

“In dealing with such a provision of law Court cannot read into the definition something which is not already there and the introduction of which will lead to imposing a restriction upon the rights of this class of……….”

12. In the present case, interpretation of the word ‘within’ to mean ‘for’ would impose a restriction on the period for which the Muslim divorced woman is entitled to the provision and maintenance and therefore it is not permissible. Again in Rameshwar v. Jotiram (3) (1976) 1 SCC 194, the Supreme Court held that while interpreting the statutes construction beneficient is to be preferred to the alternative interpretations available. Even as per this decision, the word ‘within’ cannot be understood to mean ‘for’ since it is equally not beneficient to the divorced muslim women for protecting whose interests the legislation has been brought in. Further the Supreme Court in Mahadeolal Kanodia v. Administrator-General Of West Bengal of W.B (4) AIR 1960 SC 936, held:

“The third rule is that if in any legislation, the general object of which is to benefit a particular class of persons, any provision is ambiguous so that it is capable of two meanings, one which would preserve the benefit and another which would take it away, the meaning which preserves it should be adopted.”

13. Even conceding for a moment that the word ‘within’ means ‘during’ though not ‘for’, this being a beneficial legislation since the meaning ‘during’ if given would take away the otherwise available right, even according to personal law, for maintenance beyond the IDDAT periotf of a divorced wife who is unattfe to maintain herself, it is sound interpretation to hold that it means ‘on or before’, ‘not beyond’, ‘not later than’, so that it preserves the right as per the decision of the Supreme Court in Shah Bano's case (1) supra and more so when the remedy available to a muslim divorced woman under sections 125 and 127 Cr. P.C, in addition to the one under personal law, is no more open in view of the transitional provision enacted in the Act, namely section 7, directing such pending applications to be disposed of in act accordance with the provisions of the Act. The Supreme Court held that MAHR is not a consideration for divorce so as to attract clause (b) of section 127(3) and to deny maintenance under sec. 125 Cr. P.C It is also held that the statements in the text books are inadequate to establish that a muslim husband is not under an obligation to provide maintenance even beyond the IDDAT period if the divorced wife is not able to maintain herself. The ruling touched a period far beyond the IDDAT and thus conferred a fight for maintenance and provision to the divorced woman, which the Parliament intended to protect, and this has to be preserved.

14. The expression ‘a reasonable and fair provision and maintenance to be made and paid to her within the IDDAT period’, intends to stress more for immediate and early compliance with the obligation and in no event beyond the IDDAT period. This view also receives fortification, if we look at sec. 3(3) directing the Magistrate to dispose of the application made under sec. 3(2) ‘within one month’ and to record reasons if it is not so disposed of within ope month.

15. It is next contended that the Muslim law provides payment of maintenance to divorced woman only for the period and therefore the interpretation of clause (a) of section 3(1) should be consonance with this personal law. Even assuming for a moment that the personal law limits the liability only to the IDDAT period, still when once the law is codified and brought out as an Act it would have overriding effect on the text, etc. This court in P. Veeranna v. P. Seethamma (5) AIR 1969 AP 15 dealing with a similar contention held;

“Where a statute is expressly said to codify the law, the Court, as a ??? rule, is not at liberty to go outside the four corners of law simply because before the existence of the enactment, another law prevailed.”

16. Further the previous state of law cannot influence the interpretation of the provision of the Act. To the same effect is the decision of the Madras High Court in Arumugha Udayar v. Valliammal (6) AIR 1969 Mad. 72. It is held therein:

“In the case of codifying statutes, it is a settled rule of construction that in respect of matters specifically dealt with by tie statute earlier law cannot be invoked for the purpose of adding to it something which is not there. The true meaning of provisions of the Act ought not to be ??? by considerations derived from the previous state of law.”

17. Even otherwise also, it is to be noted that the Supreme Court has itself observed in Shah Bano Begum's case that the statements in the text books, viz. Malla's Mahomedan Law (18th Edn) and Tyabji's Muslim law (4th Edn), are inadequade to establish the proposition that the muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself. Therefore; it cannot be said that Muslim Law confines payment of maintenance to divorced women only for the IDDAT period. In this context, it is also necessary to refer to some of the relevant Aiyats from the Holy Quran as has been done by the Supreme Court in Shah Bano Begum's case thus:

“15. There can be no greater authority on this question than the Holy Quaran. “The Quaran, the Sacred Book of Islam, comprises in its 114 Sutras or Chapters, the total of revelations believed to have been communicated to Prophet Mohammed, as a final expression of God's Will.” (The Quaran—Interpreted by Arthur J. Arberry). Verses (Aiyats) 241 and 242 of the Quaran show that there is an obligation on the Muslim husbands to provide for their divorced wives. The Arabic version of those Aiyats and their English translation are reproduce below:

Arabic version English version Ayat No. 241 Wa Lil Motallay Qatay Mata Un Bil Maaroofay Haqqan Alai Mata Queena For divorced women Maintenance (should be provided) On a reasonable (Scalc) This is a duty On the righteous Ayat No. 242 Kazaleka Yusaiyyakullaho Lakum Ayatehee La Allakum Taqcloon Thus doth God Make clear His Signs To you; in order that you may understand. (See the Holy Quaran by Yusuf Ali, page 96)

18. The correctness of the translation of these Aiyats is not in dispute except that, the contention of the appellant is that the word Mata in Aiyat No. 241 means ‘provision’ and not ‘maintenance’. That is a distinction without a difference. Nor are we impressed by the shuffling plea of the All India Muslim Personal Law Board that in Aiyat 241, the exhortation is to the ‘Mutta Queena’, that is, to the more pious and more God-fearing, not to the general run of this Muslims, the ‘Muslminin’. In Aiyat 242, the Quran says: “it is expected that you will use your commonsense.”

16. The English version of the two Aiyat in Muhammad Zafrullah Khan's ‘The Quaran’ (Page 38) reads thus:

“For divorced women also there shall be provision according to what is fair. This is an obligation binding on the righteous. Thus does Allah make His commandments clear to you that you may understand.”

17. The translation of Aiyats 240 to 242 in “The Meaning of the Quaran (Vol. I published by the Board of Islamic Publications, Delhi) reads thus:

“240-241. Those of you, who shall die and leave wives behind them, should make a will to the effect that they should be provided with a year's maintenance and should not be turned out of their homes. But if they leave their homes of their own accord, you shall not be answerable for whatever they choose for themselves in a fair way; Allah is All-Powerful, All-wise. Likewise, the divorced women should also be given something in accordance with the known fair standard. This is an obligation upon the God-fearing people.

242. Thus Allah makes clear His commandments for you: It is expected that you will use your commonsense.”

18. In “The Running Commentary of the Holy Quran” (1964 Edition) by Dr. Allamah Khadim Rahmani Nuri, Aiyat No. 241 is translated thus:

“142. And for the divorced woman (also) a provision (should be made) with fairness (in addition to her dower); (This is) a duty (incumbent) on the reverent.”

19. In “The meaning of the Glorious Quran Text and Explanatory Translation” by Marmaduke Pickthall (Taj Company Ltd. Karachi) Aiyat 241 is translated thus]:

“241 For divorced women a provision in kindness; A duty for those who ward off (evil)”

20. Finally in “The Quarran Interpreted” by Arthur J. Arberry, Aiyat 241 is translated thus:

“241 There shall be for a divorced wife provision honourable-an obligation on the godfearing.

So God makes clear His signs for you: Happily you will understand.”

21 ………………………..

22. These Aiyats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teachings of the Quaran. As observed by Mr. M. Hidavatullah in nis introduction to Mulla's Mahommadan Law, the Quaran is Alfurqan, that is, one showing truth from falsehood and right from wrong.”

19. Apart from Aiyats 240 to 242 referred to by the Supreme Court, it is also interesting to note that Aiyat 236.

“There is no blame on you if ye divorce women before consummation or the fixation of their dower: but bestow on them (A suitable gift), the wealthy according to his means, and the poor according to his means;—A gift of a reasonable amount is due from those who wish to do the right thing.”

directs bestowing of suitable gift even if the divorce is before consummation, while Aiyat 237,

“And if ye divorce them before consummation but after fixation of a dower for them, then the half of the dower (Is due to them), unless they remit it or (the man's half) is remitted by him in whose hands is the marriage tie; and the remission (of the man's half) is the ncarest to righteousness. And do not forget liberality between yourselves. For God sees well all that ye do.”

(The holy Quaran-Interpreted by Abdullah Yusuf Ali)

having contemplated fixation of dower directs half of it atleast be paid oven if the marriage is not consummated and reminds liberality in that matter.

20. A perusal of the above Aiyats do direct liberality and reasonableness in the matter of providing maintenance and no Aiyat is pointed out before me to show that the personal law confines the period for payment of maintenance only to IDDAT.

21. Even accepting for a moment that payment of maintenance is confined only to the period of IDDAT, it is to be noticed that clause (a) of Sec. 3(1) does not limit its scope only to maintenance. It also contemplates making of provision, The term ‘provision’ takes within its fold residence, food, clothing, etc., thus fairly contemplating all future needs. Therefore, the fair and reasonable provision and maintenance contemplated by section 3(1)(a) cannot be confined to the period of IDDAT only.

22. It is also useful to notice section 4 of the Act, which runs as under:

“Section 4. Order for payment of maintenance: (1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the IDDAT period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine 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 such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order;

(2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate……..the Magistrate may, by order direct the State Wakf Board……functioning in the area in which the woman resides to pay such maintenance as determined by him under sub-section (1)…….”.

23. The whole attempt of the legislature, thus, is to see that no divorced muslim woman is left out as a destitute or vagrant and therefore took all the cautions that inspite, of the fixation of fair and reasonable provision and maintenance the woman is not able to maintain hereself after expiry of the iddat period then liability is switched on to her (i) children (ii) parents (iii) relatives that inherit the properly of the woman as per muslim law and (iv) wakf board. This precaution in relation to time beyond the iddat period cannot, as was sought to be, be misconceived to be providing a clue for interpretation of the term ‘within’ in clause (a) of section 3(1) to be meaning ‘for’ by saying that section 4 looks after the divorced muslim woman beyond the iddat period and therefore the liability of the former husband is confined only for the IDDAT period. Turning to the other point viz. whether the maintenance granted in an application under sec. 125 Cr. P.C subsequent to the coming into force of Act 25 of 1986 is a nullity, it is to be noticed that section 7 of the Act, which is a transitional one reads thus:

“Section 7. Transitional provisions: Every application by a divorced woman under Sec. 125 or under Sec. 127 of the Code of Criminal Procedure 1973 (2 of 1974), pending before a Magistrate on the commencement of this Act shall, notwithstanding anything contained in that Code and subject to the provisions of Sec. 5 of this Act be disposed of by such Magistrate in accordance with the provisions of this Act.”

24. Therefore all applications under sec. 125 Cr. P.C pending before a Magistrate on the date of coming into force of the Act irrespective of anything said contrary in the Cr PC but subject to section 5 of the Act shall have to be disposed of in accordance with the provisions of the Act. Section 5 of the Act provides for the option to be governed by the provisions of sections 125 to 128 of Cr. P.C if both the parties so desire. The transitional provision is thus directive in its nature. To find out whether its non-observance would nullify the very proceedings, it is to be seen whether any prejudice is caused to the party making complaint of the same. Act 25 of 1986 cannot be said to have been brought-in so as to abrogate the scope and ambit of sections 125 to 128 of the Code of Criminal Procedure. On the other hand, section 3 of the Act contemplates fair and reasonable provision to be made and maintenance paid to the divorced wife, that too within the IDDAT period while section 125 Cr. P.C, limits the maximum amount of maintenance to Rs. 500/- per month, the payment being made monthly. This is not a case where the wife is making a complaint that she would have got more than Rs. 500/- per month had the proceedings been conducted in accordance with the provisions of the Act. Therefore, it cannot be said that the order granting maintenance under sec. 125 Cr. P.C, has in any way caused prejudice to the petitioner-husband - vis-a-vis —his liability under section 3 of the Act. Further, whether it is under sec. 125 Cr. P.C, or under the provisions of the Act, the proceedings hive to be conducted by the Magistrate only. So much so, in either case the recourse to be had for default in payment of maintenance is again before a Magistrate and under the provisions of the Criminal Procedure Code since sub-section (4) of section 3 of the Act enables the Magistrate to issue a warrant in the manner provided for levying fines under the Criminal Procedure Code. Therefore, non-observance of the transitional provision, namely section 7, can at best be said to be a curable irregularity and consequently the order passed granting maintenance under sec. 125 Cr. P.C, after the commencement of the Act cannot be said to be a nullity. It can at best be said to be a curable irregularity. Since there is already sufficient evidence available to fix the amount of provision and maintenance, as requested by the learned counsel, I proceed to decide the same under section 3 of the Act. It is found by the learned Magistrate that the husband was drawing a gross-salary of Rs. 1300/- to 1400/- and after deductions receiving a net amount of Rs. 950/-. The evidence of the wife that she has no means to livelihood and was also not habituated to do manual labour is not contradicted by the husband. In the circumstances, I think it proper and just to award Rs. 10,000/- towards fair and reasonable provision and maintenance to the divorced wife as per section 3 of the Act. No doubt, while fixing this amount apart from the status of the parties, the dower or MAHR agreed to be payable at the time of divorce and also other properties, if any, given to her as per clauses (c) and (d) of section 3(1) of the Act have to be kept in mind. In this case there is no evidence to show that any amount representing MAHR or dower was paid except stating that it was already paid, nor there is anything on record to show any properties as per clause (d) of section 3(1) have been given to the wife. The only evidence is that the husband paid Rs. 10/- per month for maintenance of the 2nd respondent-son for some time. There is no dispute before me in so far as the 2nd respondent is concerned since he attained the age of majority. The amount of Rs. 10,000/- referred to supra if kept in fixed deposit in a nationalised bank would fetch some interest and that would be sufficient for the survival of the wife-Ist respondent. Therefore, the husband-petitioner shall pay the sum of Rs. 10,000/- to the Ist respondent-wife towards her fair and reasonable provision and maintenance. Until he makes the said payment, he shall continue to pay Rs. 100/- (instead of Rs. 120/- ordered by the Magistrate) per month and as soon as he pays the lumpsum of Rs. 10,000/- he need not pay any amount further. The revision is accordingly disposed of.

25. Before parting with this, I should record appreciations for the interest evinced and services rendered by Mr. V. Krishna Mohan, Advocate, sponsored by the Legal Aid Committee.