ARAB AHMEDBIN ABDULLA Vs. ARAB BAIL MOHMUNA SAIYADBHAI
HIGH COURT OF GUJARAT
ARAB AHMEDBIN ABDULLA
Arab Bail Mohmuna Saiyadbhai And Another
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(1.)In these petitions the questions which arise for determination are:
(1)Whether by the enactment of the Muslim Women (Protection of Rights on Divorce) Act 1986 hereinafter referred to as the Muslim Women Act the orders passed by the Judicial Magistrate First Class under Sec. 125 of the Criminal ProceCode ordering the husband to pay maintenance to the wife are nullified ?
(2) Whether the Muslim Women Act takes away the rights which are conferred upon the divorced women under the Personal Law as interpreted by the Supreme Court in the case of Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945 ?
(3) Whether the Muslim Women Act provides that a divorced woman is entitled to have the maintenance only during the that period i.e. only for the that period ?
As these questions are of importance a number of learned Advocates intervened in the matter and they ably rendered assistance.
(2.)For deciding the aforesaid questions it would be necessary to refer to the preamble of the Act which reads as under: 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. From this problems one thing is apparent that the act is enacted to protect the rights of Muslim women who have been divorced by or have obtained divorce from their husbands. This is as clear as anything could be. In simplest language the Parliament has stated that the Act is for protecting the rights of Muslim Women. It does not provide that it is enacted for taking away some rights which a Muslim woman was having either under the Personal Law or under the general law i.e. Secs. 125 to 128 of the Criminal Procedure Code. The aforesaid preamble further provides that it is also enacted for making other provisions for matters connected therewith or incidental thereto.
(3.)Keeping this in mind we have to consider the provisions of Sec. 3. As this section requires to be interpreted. it would be necessary to refer to it in its entirety. Section 3 is as under:
"3 (1) Notwithstanding 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 that 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 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 or the husband or any relatives of the husband or his friend.
(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-sec. (1) have not been delivered to a divorced woman on her divorce she or any one duly authorised by her may on her behalf make an application to a Magistrate for an order for payment of such provision and maintenance mahr or dower or the delivery of properties as the case may be.
(3) Where an application has been made under sub-sec. (2) by a divorced woman the Magistrate may if be is satisfied that
(a) Her husband having sufficient means has failed or neglected to make or pay her within the that period a reasonable and fair provision and maintenance for her and the children; or
(b) The amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clauses (d) of sub-sec. (1) have not been delivered to her make an order within one month of the date of the 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 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 or as the case may be for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-sec. (1) to the divorced woman:
Provided that if the Magistrate finds it impracticable to dispose of the application within the said period he may for reasons to be recorded by him dispose of the application after the said period.
(4) If any person against whom an order has been made under sub-sec. (3) fails without sufficient cause to comply with the order the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying them under the Code of Criminal procedure 1973 and may sentence such person for the whole or part of any amount remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one year or until payment if sooner made subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code. (Emphasis added)
Section 3(1) begins with non-obstante clause notwithstanding anything contained in any other law for the time being in force and provides that a divorced woman shall be entitled to have from her former husband:
(i) a reasonable and fair provision;
(ii) a reasonable and fair maintenance;
which is to be made and paid to her within the that period. Clause (b) of sub-sec. (1) provides for a reasonable and fair provision and maintenance to be made and paid for a period of two years from the respective dates of the birth of such children. This clause (b) specifies the period for which she is entitled to get maintenance for her children. The period is limited only to two years from the respective dates of birth of such children. So the specific period is provided for which she is entitled to get provision and maintenance for her children. In addition to the above she is entitled to get mahr or dower amount under clause (b) and all the properties given to her 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 under clause (d).
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