It should be noticed that Section 3 of the Act speaks of “provision and maintenance”, while Section 4 talks only of maintenance. The two expressions in the former section have been used specifically to widen the scope of protection to divorced woman.
The word “provision” indicates that something has to be provided in advance for meeting the needs of the divorced wife. This means that at the time of giving divorce the Muslim husband is required to visualize the extent of the future needs of the wife and make preparatory arrangement in advance for meeting the same.
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ADVERTISEMENTS:
May be, provision is made that every month a particular amount is to be paid to the wife; may be, residential accommodation for her is provided; may be, some property is reserved for her out of the income of which she can purchase articles for livelihood.
Thus, reasonable and fair provision may include provision for her residence, provision for her food, provision for her clothes and other articles. Her husband may pay her some fixed amount or he may agree to pay it periodically. Therefore, the “provision” itself contemplates future needs of the divorced woman.
If husband fails to provide her with the provision and maintenance, on the application of the divorced wife, the Magistrate will pass an order for the same. While passing the order the Magistrate has to be satisfied that: (i) her husband has sufficient means, and (ii) has failed or neglected to make or pay her provision and maintenance?
After taking into consideration the aforesaid facts, he can pass an order directing the husband to make provision and maintenance to the divorced wife as he may determine fit and proper having regard to: (a) the needs of the divorced woman, (b) the standard of life enjoyed by her during her marriage, and (c) the means of her former husband.
ADVERTISEMENTS:
While under Section 125, Cr. P.C. there is the maximum limit of maintenance—it is Rs. 500, under the Act there is no such limit. In the case of an affluent husband the Magistrate is free to fix an amount of maintenance commensurate with the status of the parties and the needs of the wife.
In Usman Khan v. Fathevunnisa Begum, Sardar Ali Khan, J. says that words “provision” and “maintenance” in Section 3(l) (a) of the Act convey the same meaning. Bhaskar Rao, J. in his dissenting judgment holds that both words have different meaning. Repelling the argument that Parliament with a view to avoiding confusion clubbed the two words without meaning to give them separate meaning, the learned judge said that this argument was too far-fetched and was incapable of being reconciled with: (i) preamble of the Act, (ii) with Section. 4 of the Act which uses only “reasonable and fair maintenance” and omits the word “provision”, and (iii) with Section 5 of the Act which confers an option of the parties. Thus, both words have different connotation.
After quoting dictionary meaning and from the Supreme Court decision in Metal Box Company v. Worker Rao J. said, ‘The word ‘provision’, thus, means an amount set apart to meet a known liability, the amount of which cannot be decided with accuracy.
The known liability under Section 3(l) (a) of a husband is to provide for the future needs of the divorced Muslim woman. The amount is not capable of being decided with substantial accuracy.
ADVERTISEMENTS:
The word “provision” is surely different and distinct from the word “maintenance” due to the Muslim divorced woman for the iddat period”. On the other hand, maintenance means the act of providing means of support for someone.
Thus, the Gujarat and Kerala High Courts and Rao, J. of the Andhra Pradesh High Court take the view that:
(a) A reasonable and fair amount of maintenance has to be paid by a husband to his divorced wife during the period of iddat;
(b) A reasonable and fair provision and maintenance is to be made by the husband for his divorced wife after iddat till she remains unmarried,
(c) Both the above have to make during the period of iddat.