1. Is a divorced Muslim woman entitled to have from her former husband, a house for her residence, under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (' the' for short) If so, can the court direct a former husband to provide a house to his divorced wife, under Section 3 of the These are the main questions which arise for consideration in these cases.
2. Petitioner and respondent are muslims. They were husband and wife respectively. After their divorce, petitioner did not make any provision or maintenance to respondent. She continued to live in the same house, where the parties lived after their marriage and which was constructed with her own funds. Respondent was aged 44 years and she is having 4 children and she has no prospects of a re-marriage.
3. According to respondent, petitioner is working in a Government company as a driver from 1975 onwards and he is getting an amount of more than Rs.50,000/- as salary. He got lot of properties and amounts in the bank. He owns buildings which are rented out. She filed a petition before the Magistrate court, claiming a total amount of Rs.6,07,500/- under various counts, under Section 3 of the Act, which includes Rs.3 lakhs towards maintenance. She also sought for a direction to allow her to reside in the house or in the alternative, to direct petitioner to pay Rs.2 lakhs. She also claimed mahr, value of gold ornaments, gifts etc.
4. Petitioner admitted that he is working abroad, but according to him, the amount claimed is excessive. He also raised a contention that respondent cannot be allowed to reside in the relevant house, as she is a stranger to him after divorce. Evidence was adduced by both sides and an order was passed by Magistrate Court, allowing Rs.3 lakhs towards "reasonable and fair provision and maintenance". An amount of Rs.15,000/- was also allowed towards maintenance during iddat period. Other claims were rejected.
5. Both parties challenged the order of the trial court before Sessions Court in revision. Both revision petitions were disposed of by a common order, Annexure-B. The order granting Rs.3 lakhs towards reasonable and fair provision and maintenance was upheld. The maintenance ordered at Rs.15,000/- during iddat period was reduced to Rs.9000/-. The revisional court also held that respondent has no house of her own and hence, petitioner was directed not to evict her from the house. The relevant portion from the said order is as follows:
"maintenance includes shelter too, and as the petitioner has no house of her own and house from which she is attempted to be evicted is constructed with her funds too, a direction to respondent not to evict petitioner from the building where she is staying is essential. Therefore, that too is given".
6. Petitioner filed two separate petitions against Annexure-B common order under Section 482 of the Code of Criminal Procedure ('Cr.P.C.' for short) and those petitions are disposed of by this common order.
7. Learned counsel for petitioner strongly contended that the direction issued by revisional court under section 3 of the Act, not to evict the divorced wife from the house is absolutely illegal. According to him, a muslim divorced wife is a stranger to her former husband and after the divorce, she cannot be allowed to continue in the same house in which parties lived together, during subsistence of marriage. Neither Muslim personal law nor the provisions contained in the permits this, it is argued. According to petitioner, the amount ordered by the court below is highly excessive also.
8. Learned counsel for respondent argued that a Muslim woman is entitled for reasonable and fair provision as well as maintenance and both these entitlements are distinctive, as held by Supreme Court in Daniel Latifi V. Union of India (AIR 2001 SC 3958 [LQ/SC/2001/2225] ). A muslim divorce wife is entitled to shelter also and her former husband has the obligation to provide shelter to her and hence, the order cannot be said be illegal. Petitioner is financially affluent and he can afford to pay the money ordered, it is submitted. It is also submitted that respondent has constructed the house with her own fund and hence, she has right over the house and on that ground also, she cannot be evicted.
9. On hearing both sides, I find it necessary to understand the scope of Section 3 of the. Section 3 (excluding the portion which is not relevant for disposal of these cases) is extracted, as follows:
"3. Mahr or other properties of Muslim woman to be given to her at the time of divorce--(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 iddat period by her former husband;
(b) xxxxxxxxxxxxx
(c) xxxxxxxxxxxxx
(d) xxxxxxxxxxxxx
(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 Cl.(d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, or 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-section(2) by a divorced woman, the Magistrate may, if he is satisfied that, --
(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or
(b) the amount equal to the sum or mahr or dower has not been paid or that the properties referred to Cl.(d) of sub-section (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 Cl.(d) of sub-section (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." (emphasis by me).
10. Section 3(1)(a) of thedeals with various 'entitlement' of a divorced Muslim woman from her former husband. A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance from her former husband and those have to be made and paid to her within the iddat period. It is well settled that "provision" includes shelter, food, cloth etc. Hence, a divorced woman is entitled to have from her former husband, provision for abode for her living which is to be made by him within iddat period, as per Section 3(1)(a) of the. It is a statutory entitlement of a divorced Muslim woman and it cannot be demolished on the ground that she is a stranger to her former husband after divorce etc., as per Muslim personal law.
11. Admittedly, petitioner did not make any provision to respondent for shelter within iddat period but she continued to live in the house in which the couple lived during subsistence of marriage. The court below found that respondent has no house of her own and that the house where she resided is constructed with her funds also. Hence, a direction was issued to petitioner not to evict respondent from the house, since petitioner did not make arrangement for shelter of the divorced wife.
12. Can the court direct former husband to provide a house to his divorced wife for her shelter, under Section 3 of the On a close reading of Section 3 of the Act, my answer is in the negative. Even though Section 3(1)(a) of thelays down that a divorced woman is entitled to have from her former husband, "a reasonable and fair provision" and those include shelter also, if a former husband fails to make any such provision by way of shelter to her, the court cannot, unfortunately, issue any direction to him, to make arrangements for her shelter, under Section 3 of the. This is because of the specific expressions and language used in different sub-sections of Section 3 of the.
13. As per Section 3(1)(a), a reasonable and provision and maintenance have to be "made and paid" to a divorced woman within iddat period. If such provision and maintenance have not been "made or paid" to her by her former husband, she can make an application to court under Section 3(2) of the. But, the relief which a divorced woman can seek under Section 3(2) of theis only for an order for "payment" and not for any direction to provide a house for her shelter. Section 3(2) of theprovides that she may apply to the court for an order for "payment" of provision and maintenance, and not to "make" provision for shelter.
14. It is thus, clear that a divorced Muslim woman cannot even apply for a direction to her former husband, to provide a house for her residence, under Section 3(2) of the. Section 3(3) also makes it evident that if a former husband fails or neglects to "make or pay" a reasonable and fair provision, court cannot direct him to make any provision for her shelter. The court can only direct former husband to "pay" a reasonable and fair provision and maintenance to his divorced wife and not "make" provision for her shelter under Section 3(3) of the.
15. It is pertinent to note that while referring to entitlement of a divorced woman for a reasonable and fair provision and maintenance, the expressions used in Section 3 (1)(a) are "made and paid" whereas, in Section 3(2) and 3(3) of the Act, while referring to the relief which a divorced woman can seek and the order which the court can pass under the said sections, the words "make" or "made" are omitted. Instead, expressions used are "payment" and "pay". Legislature has carefully and cautiously used the relevant expressions in the different context in different sub-sections of Section 3 of the.
16. Thereby, Legislature seems to have intended that if a former husband does not make or pay any provision for shelter, clothes etc., court shall issue direction only to "pay" for such provision and maintenance and not issue any direction to "make" any provision for her shelter. Notwithstanding a divorced Muslim woman's statutory entitlement for shelter, cloth, food etc., to be "made and paid" by her former husband, as per Section 3(1)(a) of the Act, legislature has made it not possible for her even to apply for an order to make provision for her shelter, under Section 3(2). She can only seek an order for "payment" of a reasonable and fair provision and maintenance and the court can only direct a former husband to "pay" such provision and maintenance under Section 3(3).
17. The inclusion and omission of expressions such as, "make", "made", "pay" and "payment" are made in such a way that court can only pass an order to "pay" and not to "make" any provision to a divorced wife, even though she is entitled to have provision including shelter from her former husband, as per Section 3(1)(a). It cannot be said that the relevant omission or inclusion of the relevant words in the provision made by legislature are inadvertent. It is after much deliberations and discussion on the pros and cons that the law is brought to force.
18. Therefore, the court shall not, in its anxiety to do justice, insert, include or add any word or expression to its choice into Section 3 of theto enable it to grant any relief which legislature has not intended to grant to a divorce woman, under the said Section. Justice can be done by courts, only within the four corners of law and not beyond the same. The scope of a provision shall not be expanded or limited by courts, by conveniently adding or deleting any expression from the provision however much, the sense of justice in them may persuade them to do so. The court shall not go beyond legislative intend.
19. To put it short, going by the language of Section 3 of the Act, court has no jurisdiction to direct former husband to provide a house to his divorced wife for her shelter, under the head "reasonable and fair provision and maintenance". A divorced wife cannot even apply to the court for a direction to be issued to her former husband to "make" provision for her shelter under Section 3(2) of the. She can only seek an order for "payment".
20. Now, coming to the facts, I find that there is some impropriety in the impugned order and hence, it requires interference. Respondent made a claim of Rs.15,000/- towards maintenance during iddat period, in addition to the claim for reasonable and fair provision and maintenance. The court below granted Rs. 9000/- towards expenses for iddat, in addition to Rs. 3 lakhs granted for maintenance.
21. I have already held today in C.A Majeed vs. Afira & Another (vide order dated 7.4.2010 in Crl.M.C No.1852/07) that entitlement of a divorced woman is to get a reasonable and fair provision and maintenance, with effect from date of divorce and it includes her claim for the iddat period also. Over and above the amount calculated for reasonable and fair provision and maintenance, she cannot be granted any amount exclusively for her expenses during iddat period. Hence, order granting maintenance during iddat period is not sustainable.
22. A reading of the petition filed under Section 3 shows that respondent claimed Rs. 3 lakhs exclusively for "maintenance". She contended that she has no house of her own and she cannot also construct a house or take a house on rent. She needs a house for living and hence, a direction may be issued to her former husband to allow her to continue her residence in the same house, where she was living with her former husband or in the alternative, to direct him to pay Rs.2 lakhs towards "provision".
23. Thus, this is a case where a claim is made by respondent distinctly for "provision" as well as for "maintenance". While she claimed Rs.3 lakhs exclusively towards "maintenance", she also raised a claim for shelter from petitioner by allowing her to reside in the house where she was residing with petitioner before marriage. If that is not possible, she made a claim in the alternative, to grant Rs.2 lakhs towards "provision".
24. The claim for "maintenance" and "provision" under Section 3 are distinct and a divorced woman can make a claim both for "provision" and "maintenance". But, both the courts missed to take note of the above fact and trial court rejected her prayer for "provision". Though court below directed petitioner not to evict respondent from the house, such a direction is not legal. In such circumstances, it is necessary that in lieu of the above direction, respondent is granted some amount for "provision' also.
25. Both the courts below found that petitioner is in affluent circumstances and that he working in Gulf country, as a driver in a government company ever since 1975. There is no reason to interference in the above findings. It is also in evidence that respondent was residing in a house with her husband after marriage. After divorce, she must have a shelter and she is entitled to live in a house of the same standard. Taking into consideration various relevant aspects, based on evidence, I find that a total amount of Rs.3,50,000/- can be granted to respondent, towards a "reasonable and fair provision and maintenance" which includes payment in lieu of providing a shelter for her, which is claimed by her separately.
26. Before concluding, I make it clear that as per the impugned order, court below was not resolving any civil dispute between the parties in respect of the right, if any, of the respondent over the house. The impugned order relating to house was passed only under Section 3 of the Act, which is not sustainable under the said Section. So, this order or the impugned order will not stand in the way of respondent seeking any appropriate relief before any appropriate forum, relating to her asserted independent right over the house. It is submitted that a portion of the amount ordered in favour of respondent is already deposited in court. In the result, the following order is passed:
1) The petitioner is directed to pay to respondent, Rs. 3,50,000/- towards a reasonable and fair provision and maintenance.
2) The direction issued against petitioner for payment of maintenance during iddat period is set aside.
3) The order passed against petitioner directing him not to evict petitioner from the house under Section 3 of theis also set aside.
4) It is made clear that petitioner will be liable to pay only the balance amount excluding the amount which, if any, is deposited or paid. Both petitions are disposed of accordingly.
