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Rasiya v. State Of Kerala
Structured Summary of the Opinion
Factual and Procedural Background
A divorced wife filed an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 seeking Rs. 4,00,000/- under various heads. The learned Judicial First Class Magistrate, N. Paravur, in M.C. 1/99 awarded a total of Rs. 1,92,000/-, broken down as follows: Rs. 1,25,000/- as reasonable and fair provision for future livelihood; Rs. 6,000/- as maintenance for the period of iddat; Rs. 24,000/- as value of mehr; and Rs. 12,000/- as maintenance for her child for two years.
The former husband preferred a revision before the Additional Sessions Court, N. Paravur (Crl. R.P. No. 68/2000). The Additional Sessions Judge, noting that the divorced wife remarried subsequent to the Magistrate's order but during the pendency of the revision, reduced the amount payable by the former husband towards reasonable and fair provision for future livelihood from Rs. 1,25,000/- to Rs. 75,000/-. In all other respects the Magistrate's order was confirmed by the revisional Court.
The divorced wife (the revision petitioner) sought to challenge only that part of the revisional Court's order which reduced the award for reasonable and fair provision to Rs. 75,000/-. The High Court was seized of the revision, and this opinion records the High Court's consideration and final disposal of that revision.
Legal Issues Presented
- Whether the remarriage of a divorced Muslim woman during the pendency of proceedings is a permissible factor to be taken into consideration by a revisional court when determining, or modifying, the quantum of "reasonable and fair provision" payable under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
- Whether, as a matter of law, a divorced Muslim woman is entitled to reasonable and fair provision extending for the whole of her life (i.e., until death) or only until she remarries, and whether a revisional court can reduce an award made by a Magistrate on account of the wife's subsequent remarriage.
Arguments of the Parties
Revision Petitioner's Arguments (as advanced in the opinion)
- The revision petitioner relied on this Court's observation in Nizar v. Hyruneessa (1999 (1) KLT 709) that a divorced woman is entitled to fair and reasonable provision under the Act till her death, and that remarriage is not a criterion for determining the period to which she is entitled.
- Counsel argued that the Magistrate's award of Rs. 1,25,000/- towards reasonable and fair provision was lawful and made at a time when the divorced wife had not remarried; therefore the subsequent remarriage should not have been taken into account by the Sessions Judge in exercise of revisional powers, because no illegality or irregularity was committed by the Magistrate.
- Counsel submitted that the former husband's liability to provide reasonable and fair provision arises from the moment of divorce (or at least within the iddat period) and becomes absolute if not made within iddat, so the wife's entitlement crystallised and could not be diminished by a later event (remarriage).
- The revision petitioner also relied on specific observations in Nizar v. Hyruneessa suggesting that remarriage is not a determinative factor for the temporal extent of the entitlement under Section 3 of the Act.
The opinion does not contain a detailed account of the respondent's (former husband's) separate arguments at this stage beyond the fact that he had challenged the Magistrate's order by way of revision in the Sessions Court, where the Sessions Judge reduced the award in view of the wife's remarriage.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nizar v. Hyruneessa, 1999 (1) KLT 709 | Observation that remarriage of the divorced woman is no criterion while determining reasonable and fair provision under S.3; suggested entitlement may extend till death. | The revision petitioner relied on this authority to argue that remarriage should not limit the quantum. The Court noted the case but held that later authorities and Supreme Court pronouncements limit reliance on Nizar for the proposition that entitlement always extends till death. |
| Danial v. Union of India, JT 2001 (8) SC 218 (Supreme Court) | Holding that Parliament did not state that reasonable and fair provision is limited only to the iddat period; provision extends to the whole life of the divorced woman unless she remarries. | The Court treated this Supreme Court pronouncement as clarifying that entitlement continues until remarriage (or death), and used it to justify the Sessions Judge's consideration of the wife's subsequent remarriage in reducing the quantum awarded by the Magistrate. |
| Aliyar v. Pathu, 1988 (2) KLT 446 (Division Bench) | Held that besides maintenance during iddat, the former husband must provide reasonably and fairly for the divorced wife's future needs after iddat till her remarriage or death. | The Court relied on this Division Bench decision to support the proposition that the obligation extends until remarriage or death, and as authority consistent with the view that remarriage is a limiting event. |
| K. Kunhammed Haji v. K. Amina & Anr., 1995 (1) KLT 765 (Division Bench) | Affirmed Aliyar v. Pathu reasoning: under S.3(1)(a) a divorced woman is entitled to fair and reasonable provision for livelihood after iddat; the Shah Bano lifetime maintenance rule was substituted by the statutory scheme requiring provision within iddat to free husband from further liability. | The Court cited this decision as agreeing with Aliyar and supporting the view that liability is to make fair and reasonable provision within iddat, with effect that post-iddat liability is bounded by remarriage or death. |
| Majitha Beevi v. Yakoob, 1999 (1) KLT 796 | Observation that the mandate to make reasonable and fair provision is not intended to harass the former husband or enable unjust enrichment of the divorced wife. | The Court invoked this authority to emphasize that the statutory scheme should not produce unjust enrichment and to support refusal to extend the wife's entitlement beyond remarriage where later authorities point that way. |
| Shah Bano (referenced) | Referenced as background: lifetime maintenance principle for Muslim husband (historical context), which was affected by the Act. | The Court referred to the substitution of the Shah Bano lifetime-maintenance principle by the Act's scheme (as explained in K. Kunhammed Haji) to show the legislative intent and context for S.3 obligations. |
Court's Reasoning and Analysis
The Court first summarised the revision petitioner's reliance on this Court's earlier observations in Nizar v. Hyruneessa, which counsel contended supported a life-long entitlement to reasonable and fair provision unaffected by remarriage. That argument emphasised (a) the crystallisation of the former husband's liability at the moment of divorce or within the iddat period, and (b) the Magistrate's award made before the wife's remarriage.
The Court then analysed binding and persuasive authorities. It gave effect to the Supreme Court's decision in Danial v. Union of India (JT 2001 (8) SC 218), interpreting that decision as making clear that Parliament did not expressly limit reasonable and fair provision to the iddat period but that the entitlement extends until the divorced woman's remarriage or death. The Court read that pronouncement as establishing that remarriage is a relevant limiting event.
The Court further relied on two Division Bench decisions of this Court, Aliyar v. Pathu (1988 (2) KLT 446) and K. Kunhammed Haji v. K. Amina & Anr. (1995 (1) KLT 765), which the Court considered consistent with the proposition that the former husband's liability to make fair and reasonable provision during iddat has the effect of relieving him of further liability after iddat, subject to the divorced wife's not remarrying (i.e., the provision continues until remarriage or death). The Court quoted passages from both decisions to support this reading.
The Court observed that although Nizar contained statements suggesting remarriage should not be a determining factor, later authoritative pronouncements (the Supreme Court in Danial and the Division Bench decisions) controlled the legal position. Hence, the Court concluded that the Sessions Judge did not err in taking the subsequent remarriage into account and reducing the amount originally awarded by the Magistrate.
The Court additionally referred to Section 4(1) of the Act to show legislative intent: that a divorced woman who is not remarried and is unable to maintain herself after iddat may look to relatives for maintenance, implying that remarriage alters entitlement prospects. The Court used Majitha Beevi v. Yakoob to stress that the statutory scheme is not meant to produce unjust enrichment of the divorced wife or to harass the former husband.
The Court acknowledged an unresolved factual-legal question (posed rhetorically) about any remedy available to a former husband who pays provision for life during iddat and the divorced wife later remarries, but stated there is no provision in the Act for recovering any excess amount; the opinion did not decide that question.
Holding and Implications
Holding: The High Court dismissed the revision. No ground was made out to admit the revision, and the Sessions Judge's reduction of the Magistrate's award for reasonable and fair provision from Rs. 1,25,000/- to Rs. 75,000/- was upheld.
Implications:
- Direct effect on the parties: The revisional Court's modification (reducing the specific component of reasonable and fair provision payable by the former husband to Rs. 75,000/-) stands. The remainder of the Magistrate's award, as confirmed by the revisional Court, remains in force.
- On legal position: The Court treated Supreme Court and Division Bench decisions as authoritative for the proposition that a divorced Muslim woman's entitlement to reasonable and fair provision continues until remarriage or death, and that remarriage is a relevant factor that can justify modification of an earlier award.
- No new precedent: The Court expressly stated that it was unnecessary to pronounce on whether the legal position in Nizar v. Hyruneessa was correctly stated and did not refer the question to a larger bench for authoritative determination. Thus, the decision affirms application of the subsequently cited authorities rather than creating a new rule.
- Limitations acknowledged: The Court noted the absence in the Act of any provision for recovery of excess amounts paid in the event of subsequent remarriage by the divorced wife, and did not decide ancillary questions raised by that factual possibility.
This summary is confined strictly to the content, conclusions, and authorities as set out in the provided opinion.
1. Divorced wife, who seeks to get revised the order impunged by filing this revision, filed an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short ‘the Act’) claiming Rs. 4. lakhs under various heads and the learned Magistrate in M.C 1/99 on the file of the judicial First Class Magistrate, N. Paravur, on an appreciation of the evidence adduced by the parties in support of their rival cases, awarded Rs. 1,92,000/- (Rs. 1,25,000/- towards reasonable and fair provision for future livelihood, Rs. 6,000/- “as maintenance for the period of Iddat”, Rs. 24,000/- “as value of mehr” and Rs. 12,000/- “as maintenance for her child for two years”). Aggrieved by that order, the former husband preferred revision before the Additional Sessions Court, N. Paravur as Crl. R.P No. (68/2000 and the learned Additional Sessions Judge, taking into consideration the fact that subsequent to the disposal of the M.C the wife got remarried, reduced the amount payable by the former husband towards fair and reasonable provision for future livelihood of divorced wife to Rs. 75,000/-. “In other respects the order under challenge” (order passed by the Magistrate) has been confirmed by the revisional Court. This revision is sought to be filed assailing that part of the order passed by the revisional Court awarding only Rs. 75,000/- towards reasonable and fair provision for future livelihood of the divorced wife.
2. Learned counsel for the revision petitioner vehemently submitted before me placing reliance on observation made by this Court in Nizar v. Hyruneessa (1999 (1) KLT 709) that the divorced wife is entitled to fair and reasonable provision under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 till her death and learned Session Judge erred grossly in taking into consideration the subsequent event of divorced wife getting married during the pendency of the revisions before the Sessions Court. Counsel argued that the order passed by the trial Magistrate suffers no infirmity on the ground that at the time of passing that order by the Magistrate the divorced wife was not married for second time and the fact of remarriage of the divorced wife which is only a subsequent event should not, have been taken into consideration by the learned Sessions Judge while exercising his revisional powers for the reason that no illegality or irregularity has been committed by the trial Magistrate in awarding Rs. 1,25,000/- towards reasonable and fair provision for future livelihood. Counsel argued that under Section 3 of the Act the former husband is liable to make reasonable and fair provision within the period of iddat and as the divorced wife remained not married for second time during the pendency of the proceedings before the Magistrate, the Magistrate was, under law, bound to award reasonable and fair provision extending upto the period of the death of her as she was entitled, to get reasonable and fair provision extending to the whole life of her. Counsel also relied on the following observation made by His Lordship Justice Mohammed Shafi in Nizar v. Hyruneessa (1999 (1) KLT 709) in support of his contention:
“9. 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 upto which the needs of the woman should be considered is not mentioned anywhere in S. 3. of the Act. The re-marriage 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 remarried 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 S. 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 without the period of iddat, his liability to pay reasonable and fair provision to his divorced wife becomes absolute.
10. 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 S. 3(3) of the Act. Of course, if the wife gets remarried 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.”
3. Counsel submitted that the divorced wife should not be deprived or denied of the right already accrued to her (entitlement of reasonable and fair provision for whole of her life) taking into considertation the subsequent event of getting married for second time on the ground that former husband was to provide reasonable and fair provision to the divorced wife arises from the very moment of snapping the marital tie and ceasing to subsist the matrimonial relationship. Counsel submitted that divorced wife's right to get reasonable and fair provision from her former husband gets crystallised and become absolute on the very same day of effecting divorce.
4. Supreme Court has recently held in Danial v. Union of India (JT 2001 (8) SC 218) that nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond that, it would extend to the whole life of the divorced wife unless she gets married for a second time. Thus it is clear from the law laid down by the Supreme Court in the above cited decision that the divorced wife herein is entitled to get reasonable and fair provision and maintenance only upto the date she got married for second time. In Nizar's case also this Court held that the factum of remarriage of the wife is also a factor to be considered by the Magistrate keeping in view the object and reasons in enacting the provisions of the Act. Subsequent to the disposal of the M.C by the Magistrate the divorced wife got married for second time (it is an undisputed fact), and therefore, learned Sessions judge is justified in reducing the amount awarded towards reasonable and fair provision taking into consideration that subsequent event. Relief can be moulded taking into consideration the subsequent events also. No other intention is canvassed before me by the learned counsel for the revision petitioner challenging the correctness of the order passed by the learned Sessions Judge in the revision preferred by the former husband against the order passed by the Magistrate in the M.C Division Bench of this Court in Aliyar v. Pathu (1988 (2) KLT 446) held that besides paying maintenance to the divorced wife for the iddat period, former husband has to provide reasonably and fairly for the future needs of the divorced wife after the period of iddat till her re-marriage or death. Another Division Bench of this Court in K. Kunhammed Haji v. K. Amina & Anr. (1995 (1) KLT 765) agreed completely with the reasoning and conclusions of the Division Bench in Aliyar v. Pathu. The following observation made by the Division Bench in Kunhammed Haji's case (supra) is also relevant in this connetion:
“9. we could thus hold that under S. 3(1)(a), a divorced Muslim woman is entitled to get a fair and reasonable provision made for her livelihood after the period of iddat apart from her right to get maintenance during the period of iddat. The liability of Muslim husband to maintain his divorced wife during her life time or till her remarriage as declared in Shah Bano's case has only been substituted by a liability to make a fair and reasonable provision within the period of iddat as a condition for freeing the husband from all his liability to the divorced wife after the period of iddat as per S. 3(1)(a) of the Act.”
5. I need not dwell on the question whether any remedy is available to an erstwhile husband who discharges the obligation of providing reasonable and fair provision for whole of life of divorced wife during the period of iddat as mandated by the Act if divorced wife, after receiving the amount from her erstwhile husband during the period of iddat, remarries after the period of iddat dr remarries during the period of iddat. (Marriage during the period of iddat is only irregular). No provision is there in the Act to get back the excess amount paid (reasonable and fair provision received by the divorced wife beyond the period of remarriage) by the erstwhile husband. It appears, remedy of the erstwhile husband if any lies elsewhere. Whether a divorced women, who got remarried after receiving fair and reasonable provision for whole of her life from her erstwhile husband, is entitled to get from her second husband, on divorce by him or on obtaining divorce by her from him under Muslim law, fair and reasonable provision for whole of her life or till remarriage is a moot question. I need not make an attempt to answer this question.
6. In view of the clear pronouncement of the Supreme Court in the decision cited supra and the decisions rendered by the Division Benches of this Court in Aliyar's case and Kunhammed Haji's case (cited supra), no reliance can be placed on the observation made by this Court in Nizar v. Hyrunessa (1999 (1) KLT 709) to accede to the contention of the learned counsel that divorced wife (revision petitioner) is entitled to get reasonable and fair provision for future livelihood from her former husband till her death. Magistrate's order awarding to her Rs. 1,25,000/- towards reasonable and fair provision cannot be sustained interfering with the order passed by the learned Sessions Judge.
7. It is also to be pointed out that Section 4(1) of the Act provides that a divorced woman, who is not remarried, and who is unable to maintain herself after the period of iddat is entitled to get reasonable and fair maintenance from her relatives, who would be entitled to her property on her death in accordance with Muslim law. So, it is clear from Section 4(1) of the Act that a divorced wife, who has remarried is not entitled to claim fair and reasonable maintenance from her relatives, who would have inherited her property on her death according to Muslim law even if she is unable to maintain herself.
8. I have relied on Section 4(1) of the Act only for the purpose of showing that a former husband's obligation or liability to provide reasonable and fair provision for future livelihood of his divorced wife after the period of iddat extends only upto the date of her remarriage, and if not married, till her death. As observed by this Court in Majitha Beevi v. Yakoob (1999 (1) KLT 796), mandate to make reasonable and fair provision is not in any way intended to harass the former husband or to enable the divorced wife to make any unlawful gain or unjust enrichment out of divorce. In view of the pronouncements of the Supreme Court and the Division Benches of this Court, it is unnecessary to dilate on the question whether the legal position is correctly laid down in Nizar v. Hyruneessa and that question need not be left to be decided by a larger bench for an authoritative pronouncement.
9. No ground is made out to admit the revision. Hence, this revision is dismissed.
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