Maintenance wife alleging that husband is having handsome salary. No Contra assertion is made by husband. Husband did not choose to produce any salary certificate to indicate his probable salary he is in possession of relevant document to prove his precise income. Adverse inference u/s 114 of evidence act is to be drawn against him.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Thoombath Haris And Others vs Khadeeja Sherbin on 20 August, 2009
Mat.Appeal.No. 284 of 2009()
Basant,J.
Does the expression "maintenance to be made and paid to the wife within the iddat period by her former husband" appearing in Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 hereinafter referred to as 'the Act' include past maintenance payable to her prior to her divorce? This is the crucial question arising for consideration in this appeal.
2. Fundamental facts are not in dispute. The marriage between the spouses took place on 7-1-2007. There was instant acrimony in the marriage and talak was pronounced on 17-2-2008 by the husband unilaterally. The wife claimed MAT APPEAL No.284/09 -2-
maintenance for the period from 7-1-2007 to 17-2-2008. She claimed such past maintenance at the rate of Rs.9,000/- per mensem. The petition was filed after the divorce on 28-2-2008.
3. The husband is highly qualified. He works as a petroleum Engineer in Nigeria. The wife asserted that the monthly income of the husband at the time of marriage was above Rupees one lakh. At the time when she tendered evidence his income was about Rs.two lakhs per mensem, it was contended.
4. There was the oral evidence of the claimant-wife as PW1 and the evidence of the father (Power of Attorney Holder) of the husband as RW1. Exts.A1 and B1 to B5 and Ext.X1 were marked.
5. The court below directed payment of maintenance at the rate of Rs.9,000/- per mensem.
6. The counsel first of all contends that the claim for past maintenance prior to the date of divorce also falls within the sweep of the expression maintenance under Section 3(1)(a) of the Act. The leaned counsel vehemently argues that under Section 3(2) of the Act, inasmuch as past maintenance due prior to the divorce also falls under Section 3(1) (a)of the Act, the MAT APPEAL No.284/09 -3-
claim for such maintenance must be made before the Magistrate. The Family Court under Section 7 of the Family Courts Act has no jurisdiction to consider a claim under Section 3(1) of the Act and consequently the order passed by the Family Court is without jurisdiction, contends the learned counsel.
7. We are afraid, this contention cannot be accepted. The contention does not take into account the circumstances under which the Act was born. In the light of the decision in Mohd.Ahmed Khan v. Shah Bano Begum(A.I.R.1985 S.C. 945), the Parliament was obliged to explain and clarify as to what is the amount payable by a husband to his divorced wife on divorce under the customary and personal law applicable to the parties. The Parliament seized the opportunity and enacted the Act to specify what amounts are payable under the customary and personal law on divorce so as to extinguish the liability to pay maintenance under Section 125 of the Code of Criminal Procedure in terms of Section 127 (3)(b).
8. Past maintenance undoubtedly is not an amount payable on divorce. That obligation has nothing to do with the subsequent divorce. A wife in matrimony is entitled to MAT APPEAL No.284/09 -4-
maintenance from her husband. She can stake a claim under the civil law or under Section 125 of the Code of Criminal Procedure. Under Section 125 of the Code of Criminal Procedure, a woman can never stake the claim for past maintenance. The court has jurisdiction under Section 125 Cr.P.C only to direct payment of future maintenance, i.e. maintenance from the date of petition. It is idle in these circumstances to contend that the stipulations in Section 3(1) (a) of the Act to pay maintenance refers maintenance payable prior to the date of divorce.
9. We extract Sections 3(1) and 3(2)below for easy reference.
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)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 MAT APPEAL No.284/09 -5-
respective dates of birth of such children; (c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
(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, on 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.
(emphasis supplied)
10. The expression maintenance in Section 3(2) of the Act cannot be read sitting in an Island and cannot be understood to mean all maintenance-past and future. Maintenance referred to in Section 3(2) of the Act definitely relates to maintenance which is to be paid to the wife under Section 3(1) of the Act within the period of iddat on divorce. It does not at all refer to past MAT APPEAL No.284/09 -6-
maintenance due prior to the date of divorce. That is not a liability related to or connected with divorce at all. Consequently, it cannot be contended that past maintenance due prior to divorce is an amount payable under Section 3(1)(a) of the Act or one that is claimable under Section 3(2) of the Act. There is hence no merit in the contention that the Family Court has no jurisdiction to decide the claim for maintenance due prior to the date of divorce. The claim in the instant case does not fall within the sweep of Sections 3(1) (a) and 3(2) of the Act. The claim falls squarely under explanation (f) of Section 7(1) of the Family Courts Act - i.e. a suit or proceeding for maintenance.
11. We do not, in these circumstances, find any merit in the contention that the claim falls under Sections 3(1) (a) and 3(2) of the Act and consequently has to be staked only before a Magistrate. We cannot hence accept the contention that the Family Court has no jurisdictional competence to consider such claim.
12. We find that reliance has been placed on the decision of the Bombay High Court in Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh, 2000 Crl.L.J.3560(F.B.) That relates MAT APPEAL No.284/09 -7-
to a claim under Section 125 of Cr.P.C. and in any view of the matter, a claim for past maintenance is certainly not maintainable under Section 125 Cr.P.C. Sections 5 and 7 of the Act can hence have no application or relevance to the claim in the instant case. The objection raised on the first ground must hence fail.
13. The counsel contended that the quantum of maintenance awarded is excessive. An amount of Rs.9,000/- per mensem has been awarded to the wife. The husband admittedly is a highly qualified person allegedly drawing a handsome salary above Rs.one lakh per mensem. The wife as PW1 made this assertion. No contra assertion is made by RW1 examined by the appellant. What is his income? Where is he employed? There is absolutely no satisfactory assertions forthcoming from RW1. Most significantly, the appellant did not choose to produce any salary certificate, at least, to indicate to the court his probable salary. He must obviously be assumed to be in possession of the relevant document to prove his precise income. He has not chosen to produce the same. Adverse inference under Section 114 of the Evidence Act has to be drawn. MAT APPEAL No.284/09 -8-
14. Confronted with the factual situation, the court below found nothing wrong in placing reliance on the assertion of the wife as PW1. We find absolutely nothing wrong in the course adopted by the court below in fixing the quantum of monthly maintenance payable at Rs.9,000/-. In the facts and circumstances of this case, that discretion exercised does not, at any rate, warrant appellate interference. The challenge on the latter ground must also fail.
15. In the result, this appeal is dismissed. No costs. R. BASANT, JUDGE
M.C. HARI RANI,JUDGE
ks.
MAT APPEAL No.284/09 -9-
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