Sangeet Lodha, J. - (1.) This criminal miscellaneous petition is directed against order dt. 16.07.2009 passed by the Sessions Judge, Sirohi whereby the revision petition preferred by the respondents against the order dt. 02.02.2009 has been allowed and the order dt. 02.02.2009 passed by the Chief Judicial Magistrate, Sirohi awarding maintenance in favour of the respondent No.1 during the period of Iddat, has been modified and the respondent No.1 has been held entitled for maintenance Rs. 1,000/- per month from the date of application till the remarriage.
(2.) It is contended by the learned counsel for the petitioner that in view of provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce), Act 1986 (In short "the Act"), the maintenance can be allowed that the provisions of Section 3 of the Act restricting the payment of maintenance to the wife only during the period of Iddat has been held constitutionally valid by the Hon'ble Supreme Court in the matter of Dainal Latifi v. Union of India, AIR 2001 SC 3958 and therefore, the revisional Court has serious erred in awarding the maintenance to the respondent No.1 beyond the period of Iddat.
(3.) It is to be noticed that in the Danial Latifi's case, a Constitution Bench of the Hon'ble Supreme Court while dealing with the question regarding entitlement of divorced Muslim woman for maintenance in terms of the provisions of Section 3 of the Act, observed as followed:- "28. A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman get a sufficient means of livelihood, after the divorce and therefore, the word 'provision' indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. The expression "within" should be read as "during" or "for" and this cannot be done because words cannot be construed contrary to their meaning as the word "within" would mean "on or before" , "not beyond" and, therefore, it was held that the Act would mean that on or before the expiration of the Iddat period, the husband is bound to make and pay a maintenance to the wife and if he falls to do so than the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only for the Iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time. 29. The important Section in the Act is Section 3 which provides that divorced woman is entitled to obtain from her former husband 'maintenance', 'provision' and 'mahr' and to recover and authorises the magistrate to presents and dowry and authorises the magistrate to order payment or restoration of these sums or properties. The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. The wordings of Section 3 of the Act appear to indicate that the husband has two separate and distinct obligations : (1) to make a reasonable and fair provision' for his divorced wife; and (2) to provide 'maintenance' for her. The emphasis of this Section is not on the nature or duration of any such 'provision' or maintenance', but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, 'within the iddat period'. If the provisions are so read, the Act would exclude from liability for post-iddat period maintenance to a man who has already discharged his obligation of both 'reasonable and fair provision' and 'maintenance' by paying these amounts in a lump sum to his wife, in addition to having paid his wife's mahr and restored her dowry as per Section 3(1) (c) and 3(1) (d) of the Act. Precisely, the point that arose for consideration in Shah Bano's case was that the for his divorced wife even if he had paid the amount agreed as mahr half a century earlier and provided iddat maintenance and he was, therefore, ordered to pay a specified sum monthly to her under Sec. 125 Cr.P.C. This position was available to Parliament on the date it enacted the law but even so, the provisions enacted under the Act are 'a reasonable and fair provision and maintenance to be made and paid' as provided under Sec. 3(l)(a) of the Act and these expressions cover different things, firstly, by the use of two different verbs- "to be made and paid to her within the iddat period", it is clear that a fair and reasonable provision is to be made while maintenance is to be paid; secondly, Section 4 of the Act, which empowers the magistrate to issue an order for payment of maintenance to the divorced woman against various of her relatives, contains no reference to 'provision', Obviously, the right to have 'a fair and reasonable provision' in her favour is a right enforceable only against the woman's former husband and in addition to what he is obliged to pay as maintenance; thirdly, the words of the Holy Quran, as translated by Yusuf Ali of 'mata' as 'maintenance' though may be incorrect and that other translations employed the word 'provision', this Court in Shah Bano's case dismissed this aspect by holding that it is a distinction without a difference. Indeed, whether 'mata' was rendered 'maintenance' or 'provision', there could be no pretence that the husband is Shah Bano's case had provided anything at all by way of mata to his divorced wife. The contention put forth on behalf of the other side is that a divorced Muslim woman who is entitled to 'mata' as only single or one time transaction which does not mean payment of maintenance continuously at all. This contention, apart from supporting the view that the word 'provision' in Section 3(l)(a) of the Act incorporates 'mata' as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period, also enables 'a reasonable and fair provision' and a reasonable and fair provision as provided under Sec. 3(3) of the Act would be with reference to the needs of the divorced woman the means of the husband, and the standard of life the woman enjoyed during the marriage and there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman, though it may look ironical that the enactment intended to reverse the decision in Shah Bano's case, actually codifies the very rationale contained therein. ";