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Judgment
C. A. Rahim, J.—This revision has been directed against the judgment and order dated 2961993 passed by the 11 Additional Chief Metropolitan Magistrate, Kanpur Nagar, in Case No. 500/91 allowing the wife''s application under Section 3 of the Muslim Woman (Protection of Rights on Divorce) Act, 1986.
The learned counsel for the applicant has submitted that while awarding allowance to the daughter of the applicant, income of the applicant was not considered by the learned Magistrate. He has also submitted that the order allowing Rs. 22,000 in lieu of the properties given to the husband in connection with the marriage was arbitrary and illegal, as the wife failed to prove delivery of the property during the marriage. He has also challenged the maintenance allowance of the wife during the Iddat period.
After going through the judgment and after hearing submissions of all the parties 1 find that the learned Magistrate has erred on the point that there was no finding in the judgment as regards income of the applicant. It also appears that he did not consider the need of the wife, the standard of life enjoyed by the wife during her marriage along with the means of her former husband i.e. the applicant.
Section 3 of the Act envisages that the husband should have proper means to support the wife or the child, a precondition required to be proved while awarding the order of maintenance. The learned A. G. A. has submitted that since the learned Magistrate did not consider the basic element, the order should be struck down.
As regards the maintenance during the period of Iddat same principle would apply. It can only be granted after determination of the husband''s income and other factors, mentioned above, with regard to the amount granted in favour of the wife in lieu of the properties given at the time of marriage, it appears that the learned Magistrate relied upon a piece of paper written by a witness without signature of the parties with certain observations which 1 do not consider to be unreasonable. What the Iearned Magistrate is to see whether part of the properties was taken away by the wife at the time of withdrawal of the company and value of the property so taken away by the wife at the time of departure should be deducted while awarding subsistence in her favour.
The revision is, therefore, allowed. The order dated 2961993 passed by the II Additional Chief Metropolitan Magistrate is struck down with a direction that the matter will be reheard by him in the light of the observations made above and proceed according to law.
Revision allowed.