- (1.) The parties, a Muslim couple, were divorced on the 4th April, 1985, when the petitioner, the former husband, paid to the opposite party a sum of Rs. 6,000/- on account of Den-mohur of Rs. 1,000/- and the balance for maintenance of their three minor children. The opposite party made an application before the learned Magistrate u/S. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, contending that the amount given was exhausted within two years and made a prayer for a direction upon the petitioner to make fair and reasonable provision for future. The learned Magistrate relying upon a single Bench decision of Gujarat High Court AIR. 1988 Guj 141, took the view that the opposite party was entitled to get future maintenance from the petitioner and in the circumstances of the case held that he should pay a sum of Rs. 15,000/- in three instalments and an appropriate order was accordingly made. It is this order which is sought to be revised.
(2.) With great respect to the learned single Judge of Gujarat High Court, I am unable to persuade myself to hold that under the said Act a former Muslim husband can be directed to pay to his divorced wife any maintenance for any period beyond the Iddat. If really the intention of the legislature was that a divorced husband should provide maintenance to his former wife for life, provided she remained unmarried, then there was hardly any necessity to enact this law as S. 125, Code of Criminal Procedure was enough to take care of such situation. Moreover reference may be made to the provision of S. 4 of the said Act which lays down that if a divorced woman who has not married is unable to maintain herself after the Iddat period, the Magistrate may make an order directing her relatives who would be entitled to inherit her property according to Muslim Law to pay such reasonable and fair maintenance to her as may be fit and proper. If it was the liability of the former husband to provide maintenance to the divorced wife for her life then no question could possibly arise of her being unable to maintain herself after the Iddat period or to give a direction upon her relatives, who would be entitled to inherit her property, to pay reasonable and fair provision. It is true that S. 4 of the Act starts with the clause "notwithstanding against contained....." etc., but such clause cannot be fairly interpreted to mean that it was open to the divorced wife to claim maintenance u/ S. 4 of the Act in addition to what she might have received u/ S. 3 of the Act. If such an interpretation is made, then it would go against the very scheme of the Act. Considering the provisions of the Act in all its bearing, it cannot but be held that the liability of the former husband to provide maintenance is limited for the period of Iddat and if thereafter she is unable to maintain herself she, has to make an application u/S. 4 of the Act. In this view of the matter the order passed by the learned Magistrate directing the petitioner to pay Rs. 15,000/- by way of reasonable provision for the opposite party cannot be sustained.
(3.) The application is, therefore, allowed. The order passed by the learned Magistrate on 22-2-90 is set aside and the application filed by the opposite party u /S. 3 of the said Act stands rejected. Application allowed.;