T.M. Hassan Pillai, J.
1. Calling in question the legality, propriety and regularity of the order passed by the learned Judicial 1st Class Magistrate, Muvattupuzha in M.C. 19/1999 filed by the divorced wife of the revision petitioner (erstwhile husband) under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, (for short 'the Act') claiming Rs. 4 lakhs towards reasonable and fair provision, to be made Rs. 9,000/- towards maintenance to be paid to her during the period of Iddat and Rs. 40,000/- given to the former husband by her father at the time of marriage (under various heads the total amount claimed by the divorced wife from her former husband is Rs. 4,49,000/-) this revision has been filed.
2. Learned Magistrate, on an evaluation of the evidence led by the parties in support of their rival cases (erstwhile husband refuted all the allegations made against him by the divorced wife in the petition and contended that he is not liable to pay any amount as claimed by the divorced wife in her application on the ground that she has obtained divorce under the Dissolution of Muslim Marriage Act, 1939), awarded Rs. 60,000/- to the divorced wife as reasonable and fair provision for future livelihood (learned Magistrate arrived at that amount basing his conclusion that the monthly income of the husband is Rs. 3,000/- per month and towards reasonable and fair provision the divorced wife is to be given 173rd of his income for a period of five years). Rs. 3,000/- has been awarded by the learned Magistrate towards maintenance for the period of iddat.
3. Learned counsel for the revision petitioner canvassing the correctness of the order passed by the learned Magistrate painstakingly highlighted the fact that the divorced wife had obtained divorce under the provisions of the Dissolution of Muslim Marriage Act, 1939 and the main thrust of the argument is that as the dissolution of marriage was brought about by the wife under the dissolution of Muslim Marriage Act, 1939, the decree under the said Act did not amount to divorce by the husband, because marriage was dissolved by operation of law. Learned counsel submitted that a divorced wife is entitled to claim from her former husband reasonable and fair provision for future livelihood under Section 3 of the Act only if the divorce proceeded from her erstwhile husband and the divorced wife is not entitled to claim fair and reasonableprovision unless the divorce is given by the former husband unilaterally or is obtained by her from him. Learned counsel also questioned the sustainability of the order passed by the learned Magistrate on the ground that the learned Magistrate had not taken into consideration while awarding Rs. 60,000/- towards reasonable and fair provision the needs of the divorced woman, the standard of life enjoyed by her during the subsistence of the marriage and the means of her former husband.
4. Though notice was served on the divorced wife, she has chosen not to appear before this Court. I have the advantage of only hearing the arguments of the learned counsel for the erstwhile husband.
5. It is common ground that the respondent ex-wife filed an application for dissolution of the marriage under the provisions of the Dissolution of Muslim Marriage Act, 1939 and decree for divorce has been granted to her dissolving her marriage with the revision petitioner. I may repeat that the contention urged on behalf of the revision petitioner by his counsel with all the vehemence at his command is that as the husband had not divorced the wife by pronouncing 'talak' (talak, when it becomes irrevocable, puts an end to conjugal relationship which subsisted between the parties) and as the wife obtained a decree for dissolution of marriage under the provisions of the Dissolution of Muslim Marriage Act, 1939, i.e., as the divorce is not the act of the husband and as the dissolution of marriage was brought about at the instance of the wife under the Dissolution of Muslim Marriage Act, 1939, the decree for dissolution of marriage does not amount to a divorce by the husband under the Mohammedan law, and therefore, the second limb of the expression 'divorced woman' in Section 2 of the Act does not apply. It is contended that Section 3 of the Act is not attracted, and ex-wife, who has obtained divorce from the husband is not, entitled to reasonable and fair provision under Section 3 of the Act.
6. The Supreme Court had occasion to consider the question whether a Muslim woman obtaining a divorce under the provisions of the Dissolution of Muslim Marriage Act, 1939, is entitled to maintenance under Section 125 Cr.P.C. and it has been held in Zohara Khatoon v. Mohd. Ibrahim (AIR 1981 SC 1243) that there are three distinct modes in which a dissolution of marriage can be brought about and Clause(b) of explanation to Section 125(1) envisages all the three modes, whether a wife is divorced unilaterally by the husband or where she obtains divorce under the other two modes, she continues to be a wife for the purpose of getting maintenance under Section 125 of the Code of Criminal Procedure, 1973. The Supreme Court held that divorce resulting from dissolution of marriage under the provision of Dissolution of Muslim Marriage Act, 1939 is also a legal divorce under the Mohammedan law by virtue of the Statute (1939 Act). The observations made by the Supreme Court in above cited decision are to be extracted here:
'19. Before the enactment of the Act of 1939 a woman under pure Mohomedan law had no right to get a decree for divorce from the husband if he refused to divorce her. This wasundoubtedly the fundamental concept of divorce as laid down by the Mahomedan law. As,however, some of the Muslim Jurists and Theologists were of the view that where a husbandbecomes impotent or disappears for a large number of years or treats his wife with great cruelty,the wife should have some right to approach the Qazi for dissolving the marriage. Relying onthese authorities the Legislature intervened and passed the Dissolution of Muslim Marriage Act,1939 under which the wife was conferred a legal right to move the civil court for a decree fordissolution of marriage on the ground specified in Section 2 of the Act of 1939. This is spelt out fromthe Statement of Objects and Reasons of the Act of 1939, the relevant portion of which may beextracted thus:
There is no provision in the Hanafi Code of Muslim Law enabling a married Muslim Woman to obtain a decree from the court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or absconds leaving her unprovided for and under certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women in British India. The Hanafi Jurists, however, have clearly laid down that in cases in which the application of Hanafi Law causes hardship, it is permissiblelo apply the provisions of the 'Maliki,Shafi'i or Hambali Law' Acting on this principle the Ulemas have issued fatwas to the effect that in cases enumerated in Clause 3, Part A of this Bill (now see Section 2 of the Act), a married Muslim woman may obtain a decree dissolving her marriage........ As the courts are sure to hesitate to apply the Maliki Law to thecase of a Muslim woman, legislation recognizing and enforcing the abovementioned principle is called for in order to relieve the sufferings of countless Muslim women.
One of the grounds was that a suit could be brought if the husband had neglected or failed to provide maintenance for the wife for a period of two years.
20. After the Act of 1939, a wife thus had a statutory right to obtain divorce from the husband through the court on proof of the grounds mentioned in the Act. The Act provided for the wife an independent remedy which could be resorted to by her without being subjected to a pronouncement of divorce by the husband. It is, therefore, in the background Of this Act that the words 'has obtained a divorce from her husband' in Clause (b) of the Explanation have to be construed. Thus the High Court in considering the effect of these words seems to have overlooked the dominant object of the statutory remedy that was made available to the wife under the Act of 1939 by which the wife could get a decree for dissolution of marriage on the grounds mentioned in the 1939 Act by petitioning the civil court without any overt act on the part of the husband in divorcing her. The High Court also failed to consider the legal consequences flowing from the decree passed by the court dissolving the marriage, viz., a legal divorce under the Mahomedan law.
21. In these circumstances we are, therefore, satisfied that the interpretation put by the High Court on the second limb of Clause (b) is not correct. This seems to be borne out from the provisions of Mahomedan Law itself. It would appear that under the Mahomedan law there are three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and the wife terminated so as to result in an irrevocable divorce:
(1) Where the husband unilaterally gives a divorce according to any of the forms approved by the Mahomedan law, viz., Talak ahsan, which consists of a single pronouncement of divorce during tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat, or talak ahsan which consists of three pronouncements made during the successive tuhrs, no intercourse taking place between, three tuhrs; and lastly talak-ul-bidaat or talak-i-badai which consists of three pronouncements made during a single tuhr either in one sentence or in three sentences signifying a clear intention to divorce the wife, for instance, the husband saying 'I divorce thee irrevocably or 'I divorce thee, I divorce thee, I divorce thee'. The third form referred to above is however not recognised by the Shiah law. In the instant case, we are concerned with the appellant who appears to be a Sunni and governed by the Hanafi law (vide: Mulla's Principles of Mahomedan Law, Section 311, p. 297).
A divorce or talaq may be given orally or in writing and it becomes irrevocable if the period of iddat is observed though it is not necessary that the woman divorced should come to know of the fact that she has been divorced by her husband.
(2) By an agreement between the husband and the wife whereby a wife obtains divorce by relinquishing either her entire or part of the dower. This mode of divorce is called 'khula' or mubarat. This form of divorce is initiated by the wife and comes into existence if the husband gives consent to the agreement and releases her from the marriage tie. Where, however, both parties agree and desire a separation resulting in a divorce, it is called mubarat. The gist of these modes is that it comes into existence with the consent of both the parties particularly the husband because without his consent this mode of divorce would be incapable of being enforced. A divorce may also come into existence by virtue of an agreement either before or after the marriage by which it is provided that the wife should be at liberty to divorce herself in specified contingencies which are of a reasonable nature and which again are agreed to by the husband. In such a case the wife can repudiate herself in the exercise of the power and the divorce would ' be deemed to have been pronounced by the husband. This mode of divorce is called 'tawfeez' (vide: Mulla's Principles of Mahomedan Law, Section 314, p. 300).
(3) By obtaining a decree from a civil court for dissolution of marriage under Section 2 of the Act of 1939 which also amounts to a divorce (under the law) obtained by the wife. Forme purpose of maintenance, this mode is governed not by Clause (b) but by Clause (c) of Sub-section (3) of Section 127 of the 1973 Code; whereas the divorce given under modes (1) and (2) would be divorced by Clause (b)of Sub-section (3) of Section 127.
22. These are the three distinct modes in which a dissolution of marriage can be brought about. It is, therefore, manifest that Clause (b) of Explanation to Section 125(1) envisages all the three modes, whether a wife is divorced unilaterally by the husband or where she obtains divorce under mode numbers (2) and (3), she continues to be a wife for the purpose of getting maintenance under Section 125 of the 1973 Code. In these circumstances the High Court was not at all justified in taking the two separate clauses 'who had been divorced' and 'has obtained a divorce from her husband' conjunctively so as to indicate a divorce proceeding from the husband and the husband along and in not treating a dissolution of marriage under the 1939 Act as a legal divorce. We mightlike to mention here that the 1973 Code has by extending the definition of wife, not excluded the various modes of divorce but has merely abrogated that part of the Mahomedan law under which the wife ceased to get maintenance if the conjugal relationship of the husband and wife came to an end. Nevertheless, the personal law is applied fully and kept alive by Clause (b) of Sub-section (3) of Section 127 which may be extracted thus:
'(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,-
(i) in the case where such sum was paid before such order, from the date on which such order was made,
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman'.
This clause refers to mode No. 1, that is to say, where the husband unilaterally divorces his wife. For the application of Clause (b), two conditions are necessary-
(1) that an application for cancellation of the maintenance is made by the husband under Section 127(2), and
(2) that after the wife has been divorced by the husband she has received the whole of the sum which under any customary or personal law applicable to the parties was payable on divorce.
In other words, under the Mahomedan law the husband could still get the maintenance cancelled after divorcing his wife according to personal law if he paid the entire dower specified at the time of marriage.'
7. Applying the law laid down by the Supreme Court in the decision cited supra, there is no difficulty to hold that a decree for dissolution of marriage obtained by the wife under the provisions of the Dissolution of Muslim Marriage Act, 1939 is a legal divorce under the Muslim law by virtue of statute. So, it is clear from the above held discussion that the ex-wife, who had obtained divorce from her erstwhile husband under the provisions of the Dissolution of Muslim Marriage Act, 1939, is entitled to reasonable and fair provision under Section 3 of the Act.
8. The expression 'divorced woman' is defined in Section 2 of the Act to mean a Muslim woman who was married according to Muslim law and has been divorced by, or has obtained divorce from her husband in accordance with Muslim law. It is clear from the materials on record that the respondent is a divorced woman coming within the purview of the expression 'divorced woman' under Section 2(a) of the Act, i.e., she has obtained divorce from her husband in accordance with Muslim Law.
9. When the law laid down by the Supreme Court in the above cited decision is brought to the notice of the learned counsel for the revision petitioner, he made a feeble attempt to distinguish it on the ground that that decision was rendered by theSupreme Court explaining the scope and ambit of explanation (b) to Section 125 Cr.P.C. Counsel submitted that the decision cited supra was rendered by the Apex Court construing the second limb of explanation (b) to Section 135 Cr.P.C. No distinction can be made on the ground that the precise question came up for consideration before the Supreme Court was whether a divorced Muslim women, who obtained a decree for dissolution of the marriage under the Dissolution of Muslim Marriage Act, 1939 is entitled to maintenance under Section 125 Cr.P.C. ie., whether she is a 'wife' coming within the purview of the Clause (b) of Section 125 Cr.RC. Here, the respondent had obtained a decree for dissolution of marriage under the Dissolution of Muslim Marriage Act, 1939 and is a divorced woman who has obtained a decree for dissolution of marriage in accordance with Muslim law. Supreme Court in the decision cited supra has held that a decree for dissolution obtained by a wife under the provisions of the Dissolution of Muslim Marriage Act, 1939 is a valid divorce under Muslim law. So, I find no ground to distinguish the case of the ex-wife on the ground that she claimed reasonable and fair provision under Section 3 of the Act. Being a divorced wife, she is entitled under Section 3 of the Act reasonable and fair provision. So, the learned Magistrate is well justified in awarding maintenance to the wife under the head reasonable and fair provision.
10. The next question that is to be considered is whether the learned Magistrate erred in awarding Rs. 60,000/- towards reasonable and fair provision. It is admitted clearly by the erstwhile husband while giving evidence as CPW. 1 that he has been cultivating his father's property (his father owns of 70 cents of dry land and 30 cents of wet land) and getting income. He has not stated clearly in his evidence as to what is the income derived by cultivating his father's property. It is needless to state that income of the erstwhile husband is a matter within his special knowledge, and therefore, the burden is on him to prove what is the monthly or annual income derived by him. CPW.2, the witness examined by the erstwhile husband to prove that a mediation had taken place deposed clearly the fact that the revision petitioner is a dealer in two wheelers. Learned counsel for the revision petitioner submitted that the revision petitioner is not a dealer in two wheelers, but is only a broker for selling and purchasing two wheelers (divorced wife's evidence is to that effect). When evidence is given by his own witness to the effect that he is a dealer in two wheelers, the revision petitioner cannot be heard to say that he is not getting any income as a dealer in two wheelers. Even if it is assumed that he is only a broker for selling and purchasing two wheelers, it is for him to prove the income derived by him as a dealer or broker in selling or purchasing two wheelers. It is not disputed before me that the revision petitioner is an able bodied man as found by the learned Magistrate. As the revision petitioner has not discharged the burden on him, i.e., proving his income, which is within his knowledge, learned Magistrate is well justified in proceeding on the basis that his monthly income is Rs. 3,000/- per month. It is also to be pointed out that by way of maintenance he has been giving Rs. 300/- per month to the child born in the lawful wedlock as perorder passed by family Court. Till the wife started to live separately from the husband, both of them were residing under the same roof in the nuptial home and he was maintained by the husband. Evidence is totally lacking to come to a conclusion regarding the standard of life enjoyed by the divorced wife during her marriage. Divorced wife, as PW1, deposed that she is not owning any property or house of her own. For her residential purposes a property is to be purchased and house is to be constructed. She has no source of income. Taking into account the income of the erstwhile husband and the needs of the divorced wife, it is reasonable to presume that the wife needs Rs. 1,000/- per month for her maintenance, and therefore, awarding of Rs. 60,000/- as reasonable and fair provision for future livelihood of divorced wife is justified. I find no ground to interfere with that finding of the learned Magistrate.
11. It is clear from the evidence of PW1 herself that she has not observed of Iddat. She has admitted in cross-examination that she does not know what is Iddat and she cannot also say from which date to which date Iddat was observed by her. Hence, a question arises for consideration whether a divorced wife, who had not observed iddat is entitled to claim maintenance for the period of Iddat from her former husband. The Act provides for payment of maintenance for the period of iddat by the erstwhile husband to divorced wife. It is the common case of parties that marriage was consummated and a child was born in the lawful wedlock. Iddat may be described as the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death, to remain in seclusion and to abstain from marrying another husband. The abstinence is imposed to ascertain whether she is pregnant by the husband so as to avoid confusion of parentage. When the marriage is dissolved by divorce, the duration of iddat if the woman is subject to menstruation, is three courses, if she is not so subject, it is three lunar months. It is not the case of parties that at the time of severing the marital tie the divorced wife was pregnant. If the marriage is dissolved by divorce and if the marriage is consummated, the divorced wife is bound to observe the iddat. So, it is clear from the evidence that the divorced wife was bound to observe iddat and she had not observed iddat. Hence, in my view, a divorced wife, who is bound to observe iddat is not entitled to get maintenance for the period of iddat from her erstwhile husband, if she has not observed iddat. So, the divorced wife is not entitled to claim any amount from the erstwhile husband towards maintenance for the period of Iddat and the awarding of Rs. 3,000/- towards maintenance for the period of Iddat to the divorced wife is not sustainable. It has to be held that the divorced wife is entitled only to Rs. 60,000/- towards reasonable and fair provision for future livelihood.
In the result, this revision is allowed in part upsetting that part of the order impugned awarding maintenance to the divorced wife for the period of iddat. That part of the order impugned awarding Rs. 60,000/- towards reasonable and fair provision for future livelihood of the divorced wife is upheld.