Muslim divorce - calculation of reasonable and fair provision
ASIT
(Querist) 29 December 2012
This query is : Resolved
How to calculate the reasonable and fair provision and maintenance for a divorced Muslim wife under section 3 of the Muslim Women (Protection of Rights on Divorce) Act. For example the husband is earning Rs. 10000 per month and he do not have any assets.
In your answer I am expecting an an approximate amount like Rs.60000 (1000 x 60 months).
Devajyoti Barman
(Expert) 29 December 2012
Search indiankanoon or similar search engine.
Nadeem Qureshi
(Expert) 30 December 2012
search through google, court sites or contact a lawyer
ASIT
(Querist) 30 December 2012
I did not find any answer in my google search. Please provide a reply if you know about this matter?
M V Gupta
(Expert) 30 December 2012
While determining the maintenance payable to the divorcee by her husband, the same may have to be determined having regard to the needs of the woman, the standard of life enjoyed by her during her married life and also the means of the husband. Although Section 3 of the Act does not explain so much as regards parameters of reasonableness and fairness mentioned in the section, you may have to refer to the provisions contained in section 4 of the Act which prescribes the parameters for the Magistrate to determine the quantum which is reproduced above. Hence u will have to decide on the issue yourself in the light of the parameters indicated above. it would not be possible to answer ur query with any mathematical formula as desired by you.
Khaleel Ahmed
(Expert) 30 December 2012
60 months? what is this?
Fair provision clause is for idot period only not for 60 months etc.,
A divorcee can claim what she likes, but the court will decide how much have to pay as fair provision for idot period.
ajay sethi
(Expert) 30 December 2012
agree with mr gupta
ASIT
(Querist) 31 December 2012
Dear Experts,
Thank you for your reply.
Dear Mr. Khaleel Ahmed,
The divorced wife demanding reasonable and fair provision and maintenance for sixty months other than iddat period. The wife says she did not remarried yet and not going to remarry in the future.
How much the court will ask to pay to her former husband who have monthly income of Rs.10000.
Khaleel Ahmed
(Expert) 01 January 2013
Dear Niyas,
The divorcee claim for 60 months is not correct under Protection of Rights of Muslim Women Act 1986 . A fair provission of maintenance may be awarded by the court for idot period or till the delivery of women. If the born child feeding by her mother then it will be two years.
M V Gupta
(Expert) 01 January 2013
I agree with Mr. Khaleel Ahmed.The liability of the husband of a divorced Muslim woman to pay maintenance is only up to the period of iddat. Thereafter under the Act he is not legally liable to pay nor the woman can proceed against him fo maintenance after the iddat period. She can however file an application for grant of maintenance from her relatives who are entitled to inherit her property.(vide Section 4 of the Act). Hence 60 months claim by the wife against the husband is legally not sustainable.
ASIT
(Querist) 01 January 2013
Dear Mr. Khaleel Ahmed & Mr. M V Gupta,
Please refer to the below judgement and please provide your guidance in this regard. The court ordered for Maintenance for iddat Rs. 3,000/- (3 month X1000)
Reasonable provision Rs.96,000/- Rs.96,000/- (12 month X8 year X1000)
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http://indiankanoon.org/doc/11390/
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Cites 4 docs
Section 3(1)(b) in The Indian Divorce Act, 1869
The Indian Divorce Act, 1869
Section 3 in The Indian Divorce Act, 1869
Section 13 in The Indian Divorce Act, 1869
Citedby 1 docs
Chori Ouso vs Sasoon Helegua And Anr. on 5 April, 1968
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Kerala High Court
K.Andu Rahiman, S/O.Ali, ... vs Noorjahan, D/O.Karunadan ... on 24 May, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 1762 of 2002()
1. K.ANDU RAHIMAN, S/O.ALI, VALANCHERY, ... Petitioner
Vs
1. NOORJAHAN, D/O.KARUNADAN AHAMMED, MONGAM ... Respondent
2. THE STATE OF KERALA, REP.BY THE
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.JOJI MATHEW
The Hon'ble MR. Justice R.BASANT
Dated :24/05/2010
O R D E R
R.BASANT, J
------------------------------------
Crl.R.P No.1762 of 2002 (C)
-------------------------------------
Dated this the 24th day of May, 2010
O R D E R
What is the correct concept of the payment under Section 3(1)(b) of Muslim Women (Protection of Rights on Divorce) Act, 1986 ?
This interesting question arises incidentally in this case.
2. This revision petition is directed against an order passed by the learned Sessions Judge, Manjeri, enhancing the quantum of fair and reasonable provision which the petitioner was ordered to pay under Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986.
3. The relevant facts can be narrated as follows. The petitioner and the respondent were spouses. The petitioner divorced the respondent on 04.07.1997. At the time of divorce, 2 children born in the wedlock were with the respondent and the respondent was looking after the said children. The children were born on 17.04.1995 and 13.04.1997 respectively. Amounts were claimed towards:
Crl.R.P No.1762 of 2002 2
i) Maintenance during the period of Iddat; ii) Amounts for the wife for maintaining the 2 children until the children attain the age of 2 years; and iii) Reasonable provision for the wife after divorce.
4. Before the learned Magistrate, the claim was resisted. Marriage, divorce and the fact that 2 children were there at the time of divorce were not disputed. There is virtually no dispute about the age/date of birth of the children. The trial court directed payment of the following amounts. i) Maintenance during the period
of iddat - Rs. 3,000/- (3 X 1,000)
ii) Maintenance till
the children attain 2 years
(Rs.3,600 X 2 children) - Rs. 7,200) iii. Matah, ie. reasonable provision - Rs.48,400/- (Basis not revealed specifically)
....................
Total : Rs.58,600/-
....................
5. There was a contention that a further amount of Rs.44,5000/- had already been paid. The wife admitted receipt of the said amount of Rs.44,500/- by demand draft, but asserted that, that amount was not paid for the discharge of the liability Crl.R.P No.1762 of 2002 3
towards the amounts claimed in the petition. Nothing was made available to controvert that assertion of the wife. The learned Magistrate accepted that assertion.
6. Both parties approached the Sessions Court in revision. The Sessions Court, by the impugned order, enhanced the amount of reasonable provision awarded by the court below. The same was enhanced from Rs.48,400/- to Rs.96,000/-. The learned Sessions Judge took the view that 8 years can be reckoned as the multiplier and it was accordingly that Rs.96,000/- was awarded as fair and reasonable provision. The order of the learned Magistrate was upheld on all other aspects.
7. The Sessions Court by the impugned order directed payment of the following amount.
i) Maintenance for the period of
Iddat
(3 X 1000) -Rs. 3,000/- ii) Maintenance for the mother
till the children attain the age
of 2 years (basis not clear) - Rs. 7,200/- iii) Fair and reasonable provision - Rs. 96,000/- (12 X 8 X 1000)
.....................
Total - Rs.1,06,200/-
......................
Crl.R.P No.1762 of 2002 4
8. Aggrieved by the enhancement of the matah amount by the learned Sessions Judge in revision, this further revision petition has been filed by the revision petitioner. According to him, the bar of Section 397(3) will not apply as he is not seeking revision of the order passed by the learned Magistrate as upheld by the Sessions Court, but he is challenging the order passed by the Sessions Court in revision. It is accordingly that this revision petition was admitted. I agree that the revision petition is maintainable.
9. Arguments have been advanced before me. The short contention raised by the learned counsel for the revision petitioner is that the Sessions Court erred grossly in reckoning 8 as the multiplier and directing payment of an amount of Rs.96,000/- (8X12X1,000) as reasonable provision for the future. There was no justification in reckoning 8 as the multiplier, argues the learned counsel for the petitioner.
10. The learned counsel for the respondent/divorced wife on the contrary contends that the total amount of Rs.1,06,200/- awarded to the wife by the learned Sessions Judge in the order sought to be revised is too meagre and inadequate. It is much less than the amount which the respondent is actually entitled to. Crl.R.P No.1762 of 2002 5
The learned counsel submits that the learned Sessions Judge committed no error in reckoning 8 as the multiplier. The wife was aged 27 years. She had the responsibility of maintaining 2 children born on 17.04.95 and 13.04.97 when she was divorced on 04.07.97. The husband was well established. He was running a travel agency. He was admittedly the sole proprietor of the said travel agency. The wife had asserted that he has a monthly income of Rs.15,000/-. The husband, though he denied that assertion, did not place any material before Court or make any specific assertion as to what amount he was earning every month. With 2 infant children, there was no prospect of an immediate remarriage for the wife. She was not employed admittedly. In these circumstances, the learned Sessions Judge was absolutely justified in reckoning the multiplier as 8 years and in awarding an amount of Rs.96,000/- as reasonable provision for the future, contends counsel.
11. The learned counsel for the respondent submits that the courts below have not correctly appreciated the nature of the payment that is contemplated under Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. We extract Section 3 (1) (b) below.
Crl.R.P No.1762 of 2002 6 "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) .................................. ..................................
(b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children."
(emphasis supplied)
The amount payable under Section 3(1)(b) is not the maintenance for the children. It is only maintenance for the wife. That is the entitlement of the wife - not her children. 3 months' maintenance has to be paid for maintenance of the wife during the period of iddat. But if children are born in the wedlock and the children are aged below 2 years, the divorced husband has the legal obligation under Section 3(1)(b) to maintain the wife until the last of such children attains the age of 2 years. Payment under Section 3(1)(b) is payment for the mother and not payment for the children. This is clear from the language of Section 3(1)(b) as also the commentary by Abdullah Yusuf Ali. The learned Sessions Judge had extracted Ayat 6 of Crl.R.P No.1762 of 2002 7
Sura 65 of the Holy Quran in para.16 of the order in revision. It reads as follows:
"Let the women live
(In Iddat) in the same
style as ye live,
According to your means:
Annoy them not, so as
To restrict them,
And if they carry (life
in their wormbs), then
Spend (your substance) on them
Until they deliver
Their burden: and if
They suckle your (offspring),
Give them their recompense:
And take mutual counsel
Together, according to
What is just and reasonable,
And if ye find yourselves
In difficulties, let another
Woman suckle (the child)
On the (father's) behalf."
12. The learned Magistrate awarded the amount of Rs.7,200/- under Section 3(1)(b) assuming the same to be amount of maintenance for the children. This is incorrect, submits the counsel. The learned Sessions Judge understood the concept of payment correctly and observed as follows: "The above would indicate that what is being awarded under S.3(1) of the Act is not maintenance to the children but, the divorced woman is being compensated for suckling the children. Hence, the Crl.R.P No.1762 of 2002 8
argument of the learned counsel for the respondent in this regard cannot be accepted. The amount awarded to the petitioner on that count cannot be said to be excessive."
But the learned Sessions Judge did not direct payment of the amount that would actually be payable for maintenance of the wife under Section 3(1)(b), complains the learned counsel for the respondent. Rs.3,600/- each for the 2 children and not maintenance for the wife till the children attain the age of 2 years was awarded even by the Court of Revision and this is not in tune with the language and purpose of Section 3(1)(b), argues counsel.
13. It is evident that this payment under Section 3(1)(b) of the Act is to be made for the maintenance of the wife and not for the children. The amount paid under Section 3(1)(b) cannot absolve the husband/father of the responsibility to pay maintenance for the children till they attain the age of 2 years. The language of Section 3(1)(b) and the stipulations in the Quran, extracted above clearly show that this payment is to be made for the wife. Attainment of 2 years by the youngest child after divorce is stipulated as the period till which the husband will have to pay maintenance to the wife. We find this Crl.R.P No.1762 of 2002 9
proposition to be absolutely correct. The counsel hence contends that in the instant case, the husband has to pay maintenance during the period of iddat. In addition he has to pay maintenance for the wife till the children attain the age of 2 years. Further he has to make fair and reasonable provision for the future of the wife. In this view of the matter, the youngest child would have attained the age of 2 years only on 13.04.1999. The divorce was on 04.07.1997. The husband hence has the obligation to pay maintenance to the wife for a period of 21 months, ie. from 04.07.1997(date of divorce) to 13.04.1999 (the date on which the younger child attained the age of 2 years). At the rate accepted by the courts below, an amount of Rs.21,000/- (21 X 1000) was hence liable to be paid as maintenance for the wife till the youngest of the 2 children attained the age of 2 years. In that place, only an amount of Rs.7,200/- has been paid. There is a deficit of Rs.13,800/- under Section 13(1)(b) of the Act. After giving due provision for that, it can be seen that actually only an amount of Rs.82,200/- has been paid as fair provision for the future. That would mean that the multiplier adopted is actually much below 8 years (96 months). It would be Crl.R.P No.1762 of 2002 10 the maintenance payable only for a period of 82.2 months. The following statement reveals the force of this contention. Actually Payable Present direction Maintenance for iddat Rs. 3,000/- Rs. 3,000/- period (3X1000)
Amount u/s 3(1)(b) Rs.21,000/- Rs. 7,2000/- (21X1000)
Reasonable provision Rs.96,000/- Rs.96,000/- (12X8X1000) (12X8X1000)
Total Rs. 1,20,000/- Rs.1,06,200/- Difference = Rs.13,800/-
14. I find force in the contention of the learned counsel for the respondent. Whereas an amount of Rs.1,20,000/- would have been payable if the multiplier were reckoned as 8 years., only an amount of Rs.1,06,200/- has been directed to be paid. In any view of the matter, I am satisfied that the impugned direction to pay an amount of Rs.96,000/- as fair and reasonable provision (which actually works out to a direction to pay 82.2 months' maintenance in all as fair and reasonable provision for the future) does not warrant interference as the total amount directed to be paid appears to be much below the actual amount to which the wife is entitled on a correct computation of the amount.
Crl.R.P No.1762 of 2002 11
15. This revision petition is, in these circumstances, dismissed.
(R.BASANT, JUDGE)
Raj Kumar Makkad
(Expert) 01 January 2013
Niyas is right and he has also submitted a relevant citation which is fully applicable over the fact sof his query.
ASIT
(Querist) 02 January 2013
Dear Mr. Khaleel Ahmed & Mr. M V Gupta,
Please refer to the above judgement and please provide your guidance in this regard. The court ordered for Maintenance for iddat Rs. 3,000/- (3 month X1000)
Reasonable provision Rs.96,000/- Rs.96,000/- (12 month X8 year X1000)
*************
http://indiankanoon.org/doc/11390/
M V Gupta
(Expert) 03 January 2013
The difference between the view expressed by me and the judgement is that the maintenance referred to in Sec 3(1)(a)&(b) is the maintenance payable to the wife only, which gets extended beyond the iddat period if the wife is maintaining the children. As regards determination of the reasonable and fair amount is concerned, it is largely a subjective issue to be decided with reference to the income of the husband and his standard of living etc. As directed by the Holy Quran this issue should be decided by mutual consultation between the husband and the wife. If they cannot reach any agreement then parties can refer the issue for decision by the court.
Raj Kumar Makkad
(Expert) 03 January 2013
You have asked only about fair and reasonable amount for the maintenance under the provision which has clearly been replied by experts and now you are extending your query.
