Abdul Hameed v Fousiya
Written by SAHR member, Natasha Latiff.
- The parties to the suit were married according to Muslim rites in 1995. Due to constant threats from the husband, the wife was forced to leave her matrimonial home in March, 1996. Meanwhile, the husband had remarried and refused to maintain despite having sufficient means.
- In 1997, she filed a maintenance petition invoking S. 125 of the Code of Criminal Procedure, 1908. Despite the order of the court for payment of maintenance at the rate of Rs.500/- per mensem, the husband did not make such payments. By 2000, she had obtained a decree of divorce from the Munsiffs Court. She quantified the claim for Rs. 3,00,000/- towards reasonable and fair provisions; Rs. 4,500/- as maintenance for three months iddat (Hedaya defines Iddat as follows: “the term of probation incumbent upon a woman in consequence of the dissolution of marriage after carnal connection.” It has been further said in the Hedaya that ‘the most approved definition of Iddat is, the term by the completion of which a new marriage is rendered lawful.’)period, at the rate of Rs. 1,500/-per month; Rs.105/-as Mahr; Rs. 2,25,000/-being the value of 75 sovereigns and also for return of Rs. 1,00,000/- as gift given on her behalf by her father to the bride groom.
- The husband contended that the claim raised in the maintenance case was misconceived, as the wife had remarried long ago before the claim was preferred. He also contended that she had failed to perform iddat and therefore became disentitled to get the benefits as claimed. He denied his subsequent marriage and further pleaded that he was earning only a meager income.
- The Magistrate ordered that maintenance during the iddat period, at the rate of Rs.1500/-, for three months was payable. For computing entitlement for a reasonable and fair provisions and maintenance, it was held that a payment calculated at Rs.1500/- per month for sixty months, coming to Rs. 90,000/- would take care of fair provision for life’s necessities. He also ordered that the husband was bound to return the gift amount of Rs. 1, 00,000/- received from his father-in-law plus the value of gold ornaments, kept back valued at Rs. 2, 25,000/- (75 sovereigns).
- The husband contested the claim. According to him, the claim raised in the maintenance case was misconceived, as the wife had remarried long ago before the claim was preferred. She had also failed to perform iddat and therefore became disentitled to get the benefits as claimed. The claims in respect of gold and the gift amount could not have been urged on principles of res judicata, as they were the subject matter of the suit filed for divorce. He denied his subsequent marriage and further pleaded that at present he engaged in odd jobs and was earning a meager income.
- The husband challenged the above orders, both regarding the maintenance awarded and also the fair provisions allowed. Dispute was regarding the mahr amount and also the value of the gift and properties which had been alleged as appropriated after the marriage.
- The matter was referred to a single Judge (Justice Basant) but since there were conflicting judicial precedents, it was later referred to a Division Bench for authoritative pronouncement.
Legal Reasoning
1) Whether subsequent remarriage of a divorced woman has any effect/ impact in prescribing the amount of maintenance and fair provision, referred to in S. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986?
Justice Ramachandran has laid down, “A provision in a statute is not to be construed in isolation, and we have necessarily to look deeper. Under S. 4 of the Act … this, of course, is an indication to presume that the husband will have no obligation to maintain her, after the period of iddat. For obvious reason, such benefit is not claimable or made available to a divorced woman, who is married, which thereby is sufficient to show that, after a remarriage, fresh resources would have opened up to her. A remarriage is therefore considered as a relief to a divorced woman. Therefore, although limits have not been prescribed, legislative interest appears to be clear that when the matter comes to the adjudicating authority, he has to act in obedience to the provisions of the statute, in conformity with the prescriptions under S. 3(3).” (Para 26)
Justice Ramachandran also points out that according to the decisions in both Nizar and Rasiya’s case; a remarriage becomes a relevant criterion for adjudging the compensation package. According to him, such an interpretation viz. that a remarriage would also be a criterion while the enquiry is made under S. 3(3) is decipherable from the provisions of the Act.
He further lays down that, “Remarriage has only a limited impact on the claim, and that too only in the matter of fixation of a fair provision. Likewise, a remarriage of divorced woman will not confer a cause of action for the former husband for a direction for regurgling the benefits ordered/paid, as the statute has not envisaged such a contingency.”
He also points out that when the liabilities are enquired and adjudged under a special enactment, by indirect methods, the benefits payable cannot be withheld or recovered.
2) Whether a divorced woman is entitled to receive anything more than the arithmetical equivalent of the maintenance which she would be entitled from the date of divorce to the date of remarriage under S. 3(a) of the Act?
In the instant case, Justice Ramachandran has laid down, “…in respect of the claim in respect of the gift, and the gold ornaments, the demands have the characteristics of civil claims… the respondent might be correct when she stated that she was given adequate gold ornaments, in the form of gifts. But, it is improbable that when she had walked away from the husband’s residence, she would have gone empty handed. The evidence is scanty, and efforts have not been there to substantiate the averments. Against her earlier claim for 75 sovereigns, she had stated that what were given was only fifty sovereigns. In the interest of fair play, we direct that the former husband will have the liability to pay a sum of Rs. 1, 50,000/- towards the claim,-calculating the price of gold at Rs. 3000/- per sovereigns and for fifty sovereigns remaining as not returned.” (Para 28)
“In the matter of the gift of rupees one lakh, there should have been better evidence and we cannot overrule exaggeration. Even according to the divorced wife, it was given by her father, directly. He has not come and substantiated the claim. Further, we cannot but observe that there was inordinate delay in filing the case. At that time, she was married, but the averments were made as if she was a destitute. It was not factually correct. It could even amount to harassment. No amounts towards the above claim are therefore payable.” (Para 29)
The judge explains the rationale, “The right for reasonable and fair provision also is indefeasible, subject only to the means and ability for shouldering the burden by the former husband. The further stipulation that this has to be determined within one month from the date of the application also is meaningful.”
Conclusion
The revision petition was disposed off with suitable modifications to the order passed by the First Class Magistrate.
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