This appeal is preferred against the order of Principal Family Court, Madras in M.C No. 159 of 1989. The claim before the Family Court was made by the wife and minor child, represented by the mother against the appellant herein under S. 125, Code of Criminal Procedure, for maintenance.

2. The marriage between the appellant and the first respondent took place on 21-2-1988 according to Muslim rites. When the first respondent was carrying the child of the appellant, it is said that the appellant demanded a dowry of Rs. 15,000/- and since the same was not complied with, the appellant is said to have issued a notice containing certain allegations. A reply notice was also given. On 12-12-1988, the second respondent, minor child was born. The appellant is said to have issued a notice stating that he had divorced the first respondent on 23-2-1989. The respondents stated in their petition that they had no property or income and they were unable to maintain themselves. The appellants said to be employed in the Survey Office on a monthly salary of Rs. 2,500/-

3. The appellant, in defence, contended that the first respondent left the matrimonial home abruptly and had taken all the jewels and costly clothes. He denied having demanded any dowry from the first respondent or from her parents. Since his attempts to bring back his wife had failed, he had pronounced talak on 23-2-1989, in the presence of two witnesses and thus dissolved the marriage. He had also sent the mahar amount as well as maintenance for the period of iddat and the same had been acknowledged by the first respondent. The appellant however, agreed to maintain, the second respondent by paying a sum of Rs. 50/- per month till she attains majority or till she gets married, whichever was earlier.

4. The lower Court after attempting conciliation between the parties, had proceeded to discuss the evidence adduced by both sides. The lower Court has referred to the exchange of notices and finds that the feelings between the parties continued to be same even after the birth of the child. It is not disputed that a sum of Rs. 1,501/- being the mahar amount was sent by a demand draft. Ex D. 5-D. 8 prove that such payments had been made. The Kazi has also declared that the marriage between the parties had been dissolved as could be seen from Ex.D 11 dated 24-6-1989.

5. Having regard to the Muslim Personnel Law and having regard to the accepted legal position, as was obtaining after the judgment of the Supreme Court in Mohammad Ahmad Khan v. Shah Banoo Begum, 1985 Criminal Law Journal page 875, the trial Court proceeded to consider S. 3 (i) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (herein after referred to as the “Act”) and proceeded to fix the quantum of maintenance payable by the appellant to the first respondent and the child namely the second respondent.

6. Having regard to the certificate Ex.D 4, it was found that the total salary was Rs. 1,599/- and having regard to the controversy over the allegation that the appellant was also doing embroidery business, the Court came to the conclusion that a sum of Rs. 250- per month would be a proper maintenance for the wife namely the first respondent, and a sum of Rs. 100/- will be proper maintenance for the child namely the second respondent. The amounts were directed to be paid from 25-4-1989, the date of filing of the petition.

7. Before us, Mr. Fazludin, learned counsel for the appellant argues two points.

(1) The order of the lower court is liable to be set aside because the learned Judge had not taken into account the provisions of S. 5 and 7 of the Act. For this purpose, reliance is placed in Mohd. Tajuddin… v. Quomarunnisa Begum & Others…, 1989 Criminal Law Journal page 2285.

(2) The second point that is raised before us is based on the judgment of a Full Bench of the Andhra Pradesh High Court in Usman Khan Bahamani v. Fathimunnisa Begum, 1990 Criminal Law Journal 1364 for the proposition that no maintenance amount is payable beyond the iddat period.

8. So far as the first point is concerned, it is convenient to see the provisions of the Act before adverting to the arguments of the learned counsel. S. 3 of the Act to the extent it is necessary for us is as follows :—

“Mahr or other properties of Muslim Woman to be given to her at the time of Divorce :—

(1) Not withstanding anything contained in any other 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 her within the iddat period by her 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 thereafter 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 friends”.

Sections 5 and 7 are follows :—

“5. Option to be governed by the provisions of S. 125 to 128 of Act 2 of 1974:

If, on the date of the first hearing of the application under Sub-Section (2) of S. 3, a divorced woman and her former husband declare, an affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Ss. 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such an affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.

Explanation :— For the purposes of this Section, date of the first hearing of the application means the dates fixed in the summons for the attendance of the respondent to the application.

Section 7: Transitional Provisions :—

Every applicant by a divorced woman under S. 125 or under S. 127 of the Code of Criminal Procedure, shall, notwithstanding anything contained in that Code and subject to the provisions of S. 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act”.

9. Even a bare perusal of the provisions of law clearly shows that if the parties do not opt for the application of Ss. 125 to 128 of the Code of Criminal Procedure, 1973, the parties are bound to be governed by the provisions of the Act. The trial Court is bound to apply the provision of the Act for determining the maintenance claim by the respondents, because, admittedly, parties did not opt for the Criminal Procedure Code.

10. In our opinion, the provisions of law are clear, categoric and do not leave any doubt or ambiguity. Even the judgment cited by the learned counsel does not lay down any principles, contrary what is stated above.

11. The following passage in the judgment in Md. Tajuddin Quamarunnisa Begum, 1989 Criminal Law Journal 2285 would support the view taken by us:

“Therefore, all applications under S. 125, Criminal Procedure Code pending before a Magistrate on the date of coming into force of the Act irrespective of anything said contrary in the Criminal Procedure Code, but subject to S. 5 of the Act shall have to be disposed of in accordance with the provisions of the Act. S. 5 of the Act provides for the option to be governed by the provisions of Ss. 125 to 128 of Code of Criminal Procedure 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 procedure 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 Ss. 125 to 128 of the Code of Criminal Procedure”.

Again the Andhra Pradesh High Court in the above said judgment observes as follows :—

“Therefore, non-observance of the transitional provision, namely S. 7, can at best be said to be a curabel irregularity and consequently the order passed granting maintenance under S. 125, Code of Criminal Procedure, 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 S. 3 of the Act”.

This is precisely what the lower Court had done in the present case. Therefore the first point raised by the learned counsel fails.

12. The second point raised by the learned counsel is based directly on the judgment of the Full Bench in Usman Khan Bahamani v. Fathimunnisa Begum, 1990 Criminal Law Journal 1364. The points posed for consideration, were answered as follows:

“In the light of the foregoing discussion, in answer to the first question, we are of the opinion that the divorced woman cannot claim maintenance under S. 125 of the Code after passing of the Act of 1986.

In regard to second question, we hold that the fair and reasonable provision and maintenance contemplated under S. 3 (1) (a) payable by the husband is restricted only for the period of Iddat and the liability of the husband to provide any provision or maintenance after the period of Iddat does not arise. In regard to third question, we hold that Ss. 125 to 128 of the Code are not applicable after coming into force of the Act of 1986, save, in so far as the parties exercise their option under S. 5 of the Act, to be governed by the provisions of Ss. 125 to 128 of the Act”.

13. In coming to the above conclusion, the Full Bench of the Andhra Pradesh High Court have desagreed with the views expressed by the Kerala High Court in Ali v. Sufaira, (1988) 3 Crimes 147. The Kerala High Court has taken a distinct view on identical facts that under S. 3 (1) (a) of the Act, a divorced woman is not only entitled to maintenance for the Iddat period from her former husband but also to a reasonable and fair provision for her maintenance in future. We are in entire agreement with the observations of the Kerala High Court in the judgment above referred to. With great respect, we are unable to share the view taken by the Full Bench of the Andhra Pradesh. In support of our views, it is proper to recapitulate the provisions of S. 3 which we have already quoted above. Sub-clause 1 (a) says that a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her husband. Further sub-clause 2 also refers to the fact that a divorced woman could make application to the Magistrate “for an order for payment of such provision and maintenance, mahar or dower or the delivery of properties as the case may be”. The word ‘provision’ has been explained by the Apex Court in Metal Box Company Of India Ltd. v. Workmen, A.I.R 1969 S.C 612, as meaning an amount set apart to meet known liability, the amount of which cannot be decided with accuracy. The word “maintenance” as per Webster's Third New International Dictionary means:

“the act of providing means of support for someone; means of sustenance; designed or adequate to maintain a living body in a stable condition without providing reserves for growth, functional change, or healing effect”.

It is explained that the words “provision” and “maintenance” are distinct and differ from one another and the contention that they both mean one and the same thing was not accepted, by the Kerala High Court.

14. We are therefore of the opinion that the judgment of the Andhra Pradesh Full Bench limiting the payment of maintenance for Iddat period is not acceptable to us. The very purpose of the Act was to protect the rights of Muslim Women, who have been divorced and to make provision for them for their future livelihood. In this connection, the statement of objects and reasons for the enactment of the said law after Shah Banoo's case is worth noticing. In particular we refer to the following passage in the statement of “Objects and reasons”.

“The Bill accordingly provides for the following among other things, namely :—

a) a Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period of iddat by her former husband and in case she maintains the children born to her before or after her divorce, such reasonable provision and maintenance would be extended to a period of two years from the dates of birth of the children. She will also be entitled to mahr or dower and all the properties given to her by her relatives, friends, husband and the husband's relatives. If the above benefits are not given to her at the time of divorce, she is entitled to the Magistrate for an order directing her former husband to provide for such maintenance, the payment of mahr or dower or the delivery of the properties:

b. Where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim law in the proportions in which they would inherit her property. If anyone of such relatives is unable to pay his or her share on the ground of his or her not having the means to pay, the Magistrate would direct the other relatives who have sufficient means to pay the shares of these relatives also. But where a divorced woman has no relatives or such relatives or any one of them has not enough means to pay the maintenance or the other relatives who have been asked to pay the shares of the defaulting relatives also do not have the means to pay the shares of the defaulting relatives, the Magistrate would order the State Wakf Board to pay the maintenance ordered by him or the shares of the relatives who are unable to pay”.

We are therefore constrained to observe that S. 3 has to be given a broader interpretation with a view to help the divorced women.

15. We also find that the quantum of maintenance fixed for the wife and the child are quite reasonable having regard to the income of the appellant. In this view of the matter, we have no hesitation in rejecting the second contention raised by the learned counsel for the appellant.

16. In fine, the appeal fails and is dismissed. No costs. Consequently, no further orders are necessary in C.M.P No. 1645 of 1992.