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Nizar v. Hyrunneessa & Anr.
Factual and Procedural Background
This Criminal Miscellaneous Case (Crl. M.C.) was filed by the respondent in M.C. No. 3/1994 on the file of the Judicial First Class Magistrate's Court, Payyoli seeking to quash two orders (Annexures A and B) made by the trial court and the revisional court against the petitioner.
The underlying M.C. in the Magistrate's Court was instituted by the first respondent against the petitioner under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The trial court, by order dated 18-5-1996, directed the petitioner to pay:
- Rs. 10,500 (value of the balance mahar of 3½ sovereigns);
- Rs. 4,500 (maintenance during the period of iddat);
- Rs. 30,000 (value of 10 sovereigns of gold ornaments);
- Rs. 50,000 (amount alleged to have been given to the petitioner by the father of the first respondent); and
- Rs. 90,000 (by way of future maintenance / reasonable and fair provision).
The petitioner challenged the trial court's order by filing Crl. R.P. No. 44/96 before the Sessions Court, Kozhikode. The revisional court allowed the revision in part and confirmed the trial court's direction to pay Rs. 4,500 (iddat maintenance), Rs. 50,000 (amount alleged from the respondent's father), and Rs. 90,000 (reasonable and fair provision), while disallowing the other amounts. The present Crl. M.C. seeks to quash the orders of the trial court and the revisional court insofar as they awarded those amounts.
Legal Issues Presented
- Whether this Crl. M.C. (filed under Section 482 Cr.P.C.) is maintainable, or whether it impermissibly functions as a second revision by reappraising concurrent findings of fact reached by the trial and revisional courts.
- What is the scope of "reasonable and fair provision" under Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 — specifically, whether a divorced woman's remarriage during pendency of proceedings limits her entitlement to reasonable and fair provision only until the date of remarriage.
- Whether non-compliance with the one-month timeline in Section 3(3) of the Act (and failure to record reasons for delay) vitiates the Magistrate's order made after that period.
- Whether the direction to pay Rs. 50,000 (alleged to have been given by the respondent's father) falls within Section 3(1)(d) of the Act (i.e., property/gifts given before, at or after marriage by relatives/friends) or is outside the statute's ambit.
Arguments of the Parties
1st Respondent's Arguments
- The Crl. M.C. is, in substance, a second revision and is not maintainable; the High Court cannot, under the guise of Section 482 Cr.P.C., reappraise evidence or set aside concurrent findings of fact recorded by the trial court and revisional court.
Petitioner's Arguments
- The petitioner contends that he is pointing out errors of law committed by the lower courts in accepting the record/evidence.
- Counsel for the petitioner relied on the statement of objects and reasons of the Act to argue that Section 3(1) contemplates provision of maintenance and reasonable and fair provision up to the period of iddat and thereafter until the divorced woman's remarriage or death; cited Aliyar v. Pathu (1988 (2) KLT 446) for the proposition that reasonable provision is for the future needs of the divorced wife until remarriage or death.
- On that basis, the petitioner argued that the respondent having remarried during the proceedings was entitled only to reasonable and fair provision from the end of iddat until her remarriage, and hence the Rs. 90,000 award (calculated as five years at Rs. 1,500 per month) was illegal and unsustainable.
- The petitioner further argued that the Magistrate failed to pass the Section 3(3) order within one month and did not record reasons for delay as required by the proviso; thus the order (dated 18-5-1996) made after the one-month period without reasons is vitiated and should be set aside and remitted.
- Finally, the petitioner argued that the Rs. 50,000 alleged to have been given by the respondent's father does not fall within Section 3(1)(d) and therefore the direction to pay that sum under that provision is incorrect.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Aliyar v. Pathu (1988 (2) KLT 446) | Observed that, besides paying maintenance for the iddat, the former husband must provide reasonably and fairly for the future needs of the divorced wife — i.e., maintenance after the iddat period until her remarriage or death. | The judgment was cited by the petitioner's counsel to support the argument that reasonable and fair provision is payable until remarriage or death. The court acknowledged the observation but held that remarriage is not a categorical cutoff under Section 3; rather, remarriage is a factor to be considered by the Magistrate in fixing quantum. |
| Ramji Missar v. State of Bihar (AIR 1963 SC 1088) | Established that the word "may" can, in context, be interpreted to mean "shall" when referring to a duty imposed on a judicial or governmental authority. | The court applied this principle to interpret the phrase in Section 3(3) that the Magistrate "may make an order within one month" as indicating a compellable duty to act within one month. Nonetheless, the court held that failure to record reasons for delay does not automatically invalidate an order where the beneficiary would be prejudiced by such invalidation. |
Court's Reasoning and Analysis
The court proceeded by analyzing the statute (Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986) and the evidence before the Magistrate, focusing on four principal aspects: (1) the scope of this Court's inherent jurisdiction under Section 482 Cr.P.C.; (2) the substantive entitlement under Section 3; (3) the temporal extent of reasonable and fair provision when the divorced woman remarries; and (4) the evidentiary basis for the Rs. 50,000 item alleged to have been given by the respondent's father.
On jurisdiction: The court acknowledged that Section 482 Cr.P.C. should not be used to reappraise concurrent findings of fact arrived at by lower courts; however, it reaffirmed the well-settled principle that if the lower courts committed errors of law or the orders caused manifest injustice, the High Court may exercise its inherent jurisdiction to rectify such mistakes.
On statutory entitlement (Section 3): The court summarized the statutory scheme: Section 3(1)(a) entitles a divorced woman to reasonable and fair provision and maintenance within the period of iddat; Section 3(2) permits applications to the competent Magistrate where such provision has not been made; Section 3(3) empowers the Magistrate to direct payment of such provision and maintenance, fixing quantum with regard to the woman's needs, the standard of life enjoyed during marriage, and the means of the former husband.
On the temporal effect of remarriage: The court observed that Section 3 does not specify a precise temporal limit for considering the woman's needs when fixing quantum. It held that remarriage of the divorced woman is not a conclusive criterion that determines the date to which she is entitled to reasonable and fair provision. Rather, once the former husband fails to make the provision within the iddat period, his liability becomes absolute; remarriage is a relevant factor to be weighed by the Magistrate while fixing the quantum under Section 3(3), but it does not automatically truncate the entitlement.
Applying that approach to the facts, the court noted that the Magistrate did take the respondent's remarriage into account and limited the reasonable and fair provision to an award equivalent to five years' maintenance at Rs. 1,500 per month (total Rs. 90,000). The petitioner did not dispute the monthly requirement of Rs. 1,500 or the award of maintenance at that rate for the iddat period. Therefore, the court concluded that the adopted monthly requirement and the limited five-year calculation were reasonable and the petitioner's contention of manifest injustice in relation to the Rs. 90,000 award was not sustainable.
On the one-month mandate under Section 3(3): The court considered the petitioner's contention that the Magistrate's order was made well after the one-month period without reasons and hence vitiated. Citing Ramji Missar, the court accepted that the word "may" in context can be interpreted as imposing a duty (i.e., read as "shall") on a judicial authority. Nevertheless, the court held that mere failure to record reasons for delay does not automatically render the order invalid if such failure does not prejudice the beneficiary. The court also noted procedural realities: Section 3 proceedings are summary proceedings to provide speedy relief, but procedural delays (including contributions to delay by a party) do occur. In the present matter there was material to show that the petitioner contributed to the delay; consequently, the court found the delay and non-recording of reasons insufficient to invalidate the substantive order.
On the Rs. 50,000 claim under Section 3(1)(d): The court inspected the evidence and found it did not support the respondent's assertion that Rs. 50,000 was a gift by her father to the petitioner (or to her). The father — the alleged giver — was not examined. The respondent (P.W.1) did not state that the amount was given to her; she testified that the amount was advanced to the petitioner as a loan in the presence of witnesses. PW2 (the respondent's maternal uncle) deposed that the sum was advanced as a loan, and PW3 stated he could not say whether it was a loan or a gift. The court concluded that there was no tangible evidence to establish the amount as a gift falling within Section 3(1)(d). If the amount was a loan, the father had a civil remedy. The court therefore found the Magistrate's direction to pay Rs. 50,000 under Section 3(1)(d) to be unsupported by evidence, illegal and causing manifest injustice.
Holding and Implications
Holding: The Criminal Miscellaneous Case is allowed in part.
The Court's orders specify the direct effects on the parties:
- The direction requiring the petitioner to pay Rs. 50,000 to the respondent under Section 3(1)(d) of the Muslim Women (Protection of Rights on Divorce) Act is set aside (held to be illegal and a result of manifest injustice).
- The orders of the Magistrate and the revisional court directing the petitioner to pay maintenance during the iddat period (Rs. 4,500 as earlier found) and the reasonable and fair provision (Rs. 90,000 as fixed by the Magistrate and confirmed on revision) are confirmed.
Implications:
- The decision directly affects only the parties by removing the Rs. 50,000 liability and upholding the other payments. The court applied and interpreted Section 3 of the Act and the proviso to Section 3(3) but did not purport to lay down any novel legal precedent beyond the interpretative points discussed. No broader precedent claim is asserted in the opinion; the ruling resolves the statutory application and evidentiary deficiencies in this case.
1. This Crl. M.C is filed by the respondent in M.C No. 3/1994 on the file of the Judicial First Class Magistrate's Court, Payyoli to quash Annexure-A and B orders passed by the trial court and the revisional court against the petitioner.
2. The M.C was filed by the 1st respondent against the petitioner claiming amounts under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The trial court after trial by order dated 18-5-1996 directed the petitioner to pay the 1st respondent Rs. 10,500/- being the value of the balance mahar of 3½ sovereigns, Rs. 4500/- being the maintenance during the period of Iddat, Rs. 30,000/- being the value of 10 sovereigns of gold ornaments, Rs. 50,000/- given to the petitioner by the father of the 1st respondent and Rs. 90,000/- by way of future maintenance. The petitioner assailed that order before the Sessions Court, Kozhikode in Crl. R.P No. 44/96. The revisional court allowed the revision in part and confirmed the order passed by the trial court directing the petitioner to pay Rs. 4500/- being maintenance during the period of Iddat, Rs. 50,000/- being the amount given to the petitioner by the father of the 1st respondent and 90,000/- being the reasonable and fair provision and disallowed the other amounts allowed by the trial court. This M.C is filed to qush the orders passed by the trial court and the revisional court awarding those amounts.
3. The 1st respondent has contended that the above Crl. M.C being in the nature of a second revision is not maintainable and under the guise of a proceeding under Section 482 of te Cr. P.C and this Court cannot reappraise the evidence and set aside the concurrent findings of fact arrived at by the trial court as well as the revisional court. But it is contended by the petitioner that he is only placing before this court the errors of law committed by the courts below by accepting the evidence on record.
4. It is well settled that if the lower courts had committed any error of law in arriving at the findings or the orders passed by the courts below have resulted in manifest injustice, this Court is competent to exercise its inherent jurisdiction under Section 482 of the Cr. P.C to rectify the mistake committed by the lower courts.
5. The counsel for the petitioner submitted that it is clear from the statement of objects and reasons for the enactment of the Muslim Women (Protection of Rights on Divorce) Act that the law was enacted to provide the Muslim divorced women for a reasonable and fair provision for maintenance within the period of iddat by her former husband. He also argued that by interpreting the provisions of Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act a Division Bench of this Court in the decision in Aliyar v. Pathu (1988 (2) KLT 446) has observed as follows:
“Besides paying maintenance to the divorced wife for the Iddat, former husband has to provide reasonably and fairly for the future needs of the divorced wife, i.e use of the divorced wife after the period of iddat period and till her marriage or death”.
6. Therefore he submitted that what is contemplated under Section 3(1) of the Act is payment of maintenance to the divorced wife till her re-marriage or death. He also argued that in this case it is admitted by the 1st respondent that she got remarried during the above proceedings Before the trial court and therefore, she was entitled to reasonable and fair provision provided under Section 3(1) of the Act only from the date of expiry of iddat period till her re-marriage. Therefore, according to him, the award of Rs. 90,000/- being reasonable and fair provision to the 1st respondent in this case by the trial court and confirmation of that finding by the revisional court are absolutely illegal and unsustainable.
7. The trial court directed the petitioner to pay Rs. 90,000/- being reasonable and fair provision by calculating maintenance for five years at the rate of Rs. 1500/- per mensem. The award of maintenance at the rate of Rs. 1500/- per mensem to the 1st respondent during the period of Iddat by the courts below is not challenged by the petitioner. Therefore, the monthly requirements for the 1st respondent adopted by the courts below for arriving at the reasonable and fair provision payable by the petitioner is perfectly justified.
8. Section 3(1)(a) of the Muslim Women (Protectin of Rights on Divorce) Act stipulates that the divorced woman is entitled to reasonable and fair provision to be made and maintenance to be paid by her former husband within the period of iddat. Under Sec. 3(2) of the Act when the reasonable and fair provision and maintenance due to the divorced woman has not been made or paid, she is entitled to make an application to the competent Magistrate for an order for payment of such provision and maintenance. Therefore, the former husband is liable to pay maintenance and to make reasonable and fair provision within the period of iddat and when he fails to pay the maintenance during the period of iddat and make reasonable and fair provision within the period of iddat, then only the divorced woman is entitled to move the competent Magistrate for a direction for payment of maintenance during the period of iddat or reasonable and fair provision as the case may be.
9. Sub-section (3) of Sec. 3 of the Act empowers the Magistrate to direct the former husband of the petitioner to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as 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 her former husband.
10. 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 up to which the needs of the woman should be considered is not mentioned anywhere in Sec. 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 re-married 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 Sec. 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 within the period of iddat, his liability to pay reasonable and fair provision to his divorced wife becomes absolute.
11. 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 Sec. 3(3) of the Act. Of course, if the wife gets re-married 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.
12. In this case it is clear that the learned Magistrate has taken into consideration of the fact that the respondent re-married during the pendency of the proceedings before the court and limited the quantum of reasonable and fair provision to five years maintenance at the rate of Rs. 1500/- per mensem. As already noted the entitlement and need of the respondent of Rs. 1500/- per mensem for her maintenance is not disputed by the petitioner since the quantum of maintenance awarded by the learned Magistrate during the period of iddat is not disputed by the petitioner. Therefore, the contention of the petitioner that there is manifest injustice in the direction made against him to pay Rs. 90,000/- being reasonable and fair provision to the respondent since she got re-married during the pendency of the petition and that the learned Magistrate should have restricted the quantum of reasonable and fair provision to the amount of maintenance from the date of expiry of the period of iddat till the date of her re-marriage, is not sustainable. I find the reasonable and fair provision awarded by the learned Magistrate confirmed by the revisional court in this case, is reasonable and fair.
13. The counsel for the petitioner vehemently argued that in spite of the mandate of Sec. 3(3) of the Muslim Women (Protection of Rights on Divorce) Act that the order should be passed within one month of the date of filing of the application and if there is delay in disposal of the petition within that period, the reasons for the delay should be recorded, the order passed by the learned Magistrate in this case is only on 18-5-1996, long after the expiry of the period of one month prescribed under the Act, without offering any explanation for the delay. Therefore, the order passed by the learned Magistrate is vitiated and as such the matter should remitted to the learned Magistrte after setting aside the orders passed by the learned Magistrate and the revisional court.
14. Section 3(3) of the Act mandates that when an application is made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that the divorced woman is entitled to the claim made by her, make an order within one month of the date of filing of the application, directing her former husband to pay the amounts found by him. The proviso to Sec. 3(3) stipulates that if the Magistrate finds it impracticable to dispose of the application, he may, for reasons to be recorded by him, dispose of the application after the said period. No reason for the delay in disposing of the petition filed by the respondent is stated in the order passed by the learned Magistrate. In the order passed by the revisional court also nothing is stated about the delay in disposing of the application by the learned Magistrate.
15. The counsel for the petitioner vehemently argued that though the word ‘may’ is used in Sec. 3(3) with regard to the disposal of the application, it is clear from the context that it is a direction to the Magistrate to dispose of the application within one month and therefore the direction is mandatory.
16. The word ‘may’ though generally connote as merely an enabling or permissive power, in certain context the word is used as a compellable duty especially when it refers to the power conferred on a court or a judicial authority. This principle of interpretation is well settled by the decision of the apex court in Ramji Missar v. State of Bihar (AIR 1963 SC 1088).
17. From the context the phrase ‘Magistrate may make an order within one month of the date of filing of the application’ used in Sec. 3(3), it is clear that the word ‘may’ is used to mean ‘shall’ especially considering the fact that the proceedings under Sec. 3 of the Muslim Women (Protection of Rights on Divorce) Act is a summary proceeding intended to achieve the above object of the enactment of the Act to give immediate relief to divorced Muslim Woman to whom the reliefs are not provided by her former husband within the period of iddat. But merely because of the failure of the Magistrate to record the reasons for the delay in disposal of the application, the order passed by the Magistrate will not be rendered invalid or unsustainable. The failure, if any, on the part of the Magistrate to give reasons for the delay in disposal of the application within the time of one month as stipulated in Sec. 3(3) of the Act should not cause any harm or prejudice to the beneficiary of the Act in whose favour the order is passed by the Magistrate, though belatedly. Therefore this contention of the petitioner is also not tenable.
18. It has to be remembered that for a proceeding under Sec. 3 of the Muslim Women (Protection of Rights on Divorce) Act the provisions of the Code of Criminal Procedure are made applicable. Therefore, the formalities and requirements under the Cr. P.C for the disposal of the summary proceedings are to be followed by the Magistrate in disposing of the application under Sec. 3 of the Act which implies procedural delay in the disposal of the matter. In this case from the records of the trial court and the order passed by the learned Magistrate it is clear that the petitioner also contributed his share for the delay in disposing of the application by the learned Magistrate. But it has to be remembered that the very purpose of the enactment is to give speedy remedy to divorced women and disposal of the application filed under Sec. 3 of the Act within one month or at the earliest as the case may be, will be beneficial to both the divorced woman and her former husband and this salutary object of the enactment should not be lost sight of by the courts.
19. The petitioner has contended that the direction passed against him to pay Rs. 50;000/- alleged to have beeen paid by the father of the respondent, his father-in-law, even if admitted, will not come within the ambit of Sec. 3(1)(d) of the Muslim Women (Protection of Rights on Divorce) Act. Section 3(1)(d) of the Act stipulates that all the properties given to the divorced woman before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends should be returned to her. In this case, the case of the respondent is that Rs. 50,000/- is given by her father to the petitioner to purchase property in the joint names of the petitioner and the respondent and since no property is purchased in her name by the petitioner, she is entitled to the return of that amount.
20. The evidence on record in this case does not support this contention. The father of the respondent, who has allegedly given the amount, is not examined. The respondent as P.W 1 has nowhere stated that the amount was given to her. But on the other hand, her testimony is to the effect that the amount of Rs. 50,000/- is given by her father as loan to the petitioner in the presence of witnesses. The witnesses are examined as P.Ws 2 and 3. PW2 is the maternal uncle of the respondent. He has deposed that Rs. 50,000/- is advanced to the petitioner as loan. P.W 3 has deposed that he cannot say whether the amount was given to the petitioner as a loan or gift. Therefore, it is clear that there is no tangible evidence on record to etablish that the amount of Rs. 50,000/- is given by the father of the respondent to the petitioner as gift so as to entitle her to get back the amount under Sec. 3(1)(d) of the Act. If it is a loan advanced by the father of the respondent to the petitioner, he may have his civil remedy to recover the amount from the petitioner. By no stretch of imagination the amount of Rs. 50,000/- alleged to have been paid by the father of the respondent to the petitioner can be construed as a gift by her father to the petitioner coming within the ambit of Sec. 3(1)(d) of the Act. Therefore, the order passed by the learned Magistrate directing the petitioner to pay Rs. 50,000/- to the respondent under Sec. 3(1)(d) of the Act is absolutely illegal and resulted manifest injustice. Therefore, the finding of the learned Magistrate confirmed by the revisional court directing the petitioner to pay Rs. 50,000/- under Sec. 3(1)(d) of the Act being illegal and resulted in miscarriage of justice, is liable to be set aside.
21. In view of what is stated above, this Crl. M.C is allowed in part. The direction to pay Rs. 50,000/- by the petitioner to the respondent under Sec. 3(1)(d) of the Muslim Women (Protection of Rights on Divorce) Act is set aside and the order passed by the revisional court confirming the order passed by the Magistrate regarding payment of maintenance during the iddat period and reasonable and fair provision is confirmed.
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