Kerala High Court
Nizar vs State Of Kerala on 28 August, 2008
Author: R.Basant
Bench: R.Basant
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 698 of 2008()
1. NIZAR, AGED 43 YEARS
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
2. ARIFFA, AGED 43 YEARS,
For Petitioner :SRI.E.RAFEEK
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :28/08/2008
O R D E R
R.BASANT, J
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Crl.M.C. Nos.698 and 3245 of 2008
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Dated this the 28th day of August, 2008
ORDER
Against the common petitioner herein, the 2nd respondent had initiated proceedings under Section 3 of the Muslim Women's (Protection of Rights on Divorce) Act. They were married in 1986. Divorce took place in 1999. At the time of divorce 2 minor children were living. One child died after the divorce was effected in 1999. Another child, who was a minor at the time of divorce, has now attained the age of majority. It was contended that the divorce was effected on the ground of adultery. The allegation of adultery was stoutly resisted. No evidence is available now to show the reasons that prompted the divorce. It was a case of unilateral and arbitrary exercise of the prerogative of the husband under personal law to terminate marriage.
2. The claimant/wife came to the court with an application under Section 3 of the Muslim Women's (Protection of Rights on Divorce) Act. The claim was resisted. Before the learned Magistrate there was only the interested version of the Crl.M.C. Nos.698 and 3245 of 2008 2 claimant as PW1 and the version of the petitioner herein/divorced husband as CPW1. The learned Magistrate took the view that the petitioner is liable to pay an amount of Rs.90,000/- (Rs.750/- X 12 X 10) as fair and reasonable provisions and maintenance and an amount of Rs.2,250/- (Rs.750/- X 3) as maintenance during the period of Iddat. Accordingly a direction was issued to pay an amount of Rs.92,250/- under Section 3 of the Muslim Women's (Protection of Rights on Divorce) Act. Proceedings were initiated in 1999 before the learned Magistrate and the said order was passed on 03.04.2001.
3. Long later, the petitioner filed a revision petition before the Sessions Court in 2008 challenging the order passed in 2001. The learned Sessions Judge, by the impugned order dt.25.07.08, turned down the prayer and upheld the order passed by the learned Magistrate.
4. In the meantime the claimant/divorced wife had initiated steps for recovery of the amount. As per order dated 06.02.08 in M.C.No.79 of 1999, the learned Magistrate had sentenced the petitioner under Section 3(4) of the Muslim Women's (Protection of Rights on Divorce) Act to undergo imprisonment for a period of 6 months.
Crl.M.C. Nos.698 and 3245 of 2008 3
5. The petitioner had come to this Court with Crl.M.C No.698 of 2008 challenging the sentence imposed on him under Section 3(4) of the Act. Subsequently the revision petition was disposed of and the petitioner has now come to this Court with Crl.M.C.No.3245 of 2008 to assail the order passed by the learned Sessions Judge in revision.
6. The respondent has entered appearance. Arguments of the counsel for the rival contestants have been heard. The learned counsel for the petitioner assails the impugned orders on the following grounds.
i) The courts below ought to have noted that there is no valid divorce and the claimant is not hence entitled to claim amounts as a divorced wife;
ii) At any rate, the multiplicand of Rs.750/- reckoned by the learned Magistrate while fixing the quantum of amount payable under Section 3 of the Act is not justified;
iii) The courts below erred grossly in reckoning the multiplier as 10. The same is perversely high and unjustified;
iv) The learned Magistrate erred grossly in not ensuring that steps for recovery by issue of warrants under Section 421 Cr.P.C are taken before proceeding to impose the sentence on the petitioner under Section 3(4) of the Act. Crl.M.C. Nos.698 and 3245 of 2008 4
7. I have considered all these contentions. The first contention raised is on the strength of the decision of the Supreme Court in Shamim Ara v. State of U.P [2002(3) KLT 537(S.C)]. In that decision, the Supreme Court has held that for a unilateral divorce by the husband to be valid, there must be a reasonable cause and the pronouncement of talaq must be preceded by an attempt by arbitrators to settle the dispute. The contention is interesting and strange too. The husband who invoked his weapon to unilaterally liquidate the relationship of matrimony, which liquidation was accepted by the wife, now comes before the Court and contends that the divorce effected by him and accepted by the wife is not divorce in the eye of law for the reason that he has no reasonable cause and there has been no previous attempt for mediation by the arbitrators. Less said about this contention, the better. The interests of justice do not at all permit the petitioner to raise such a contention to assail his own conduct of effecting the divorce, which divorce has been accepted by the wife without challenge. The petitioner had raised an allegation that the wife is guilty of adulterous behaviour. It is such husband who now takes up the stand that the divorce effected by him in fact is not valid in the eye of law and therefore the wife cannot claim the status of a divorced wife. Crl.M.C. Nos.698 and 3245 of 2008 5 That contention, to say the least, is mischievous and cannot be accepted at all.
8. I cannot afford to ignore the nature of jurisdiction which I am called upon to invoke and exercise. Under Section 397(3) Cr.P.C, a second revision by a party, who has already invoked the jurisdiction of the Sessions Court to revise an order passed, is not maintainable at all. Thus a further challenge in revision by the petitioner is proscribed under Section 397(3) Cr.P.C. That evidently explains why the petitioner has affixed the label of Section 482 Cr.P.C on his petition in the attempt to challenge the concurrent orders. Of course, the bar under Section 397(3) Cr.P.C may not take away the jurisdiction of this Court under Section 482 Cr.P.C. But compelling reasons must be shown to exist to persuade this Court to hold that such extraordinary inherent jurisdiction, which has to be invoked only to serve the paramount interests of justice can, need or ought to be invoked in the facts of a given case. I am unable to accept the contention that such jurisdiction in favour of justice need be invoked to accept the contention of the petitioner that the arbitrary unilateral divorce effected by him is bad for the reason that the procedural requirements of Shamim Ara v. State of Crl.M.C. Nos.698 and 3245 of 2008 6 U.P (supra) has not been satisfied. I have no hesitation to reject that contention outright.
9. Contentions 2 and 3 relate to quantification of the amount payable as fair and reasonable provisions and maintenance under Section 3 of the Act. Here again, I must alertly take note of the nature, quality and contours of the jurisdiction of this Court under Section 482 Cr.P.C. A lump sum amount of Rs.90,000/- has been directed to be paid. The marriage survived for a long period of 13 years. Two children, who were minors on the date of the divorce, were living at the time of divorce. One child expired. The other child is living now. The learned counsel for the respondent asserts that the claimant/divorced wife continues to be unmarried now and there is not a semblance of data to show that, that assertion is incorrect. Multiplier adopted by the court below was 10 and a period of about 10 years has already elapsed from the date of the divorce and there is nothing to show that the divorced wife/claimant has remarried. It is also of interest to note that though the claim was made as early as in 1999 and the order was passed by the learned Magistrate in 2001, the amount has not been paid so far and only a pittance has been paid in trickle as per the orders passed by the court. There is no direction for Crl.M.C. Nos.698 and 3245 of 2008 7 payment of interest. But all the same, no court can afford to lose sight of the fact that what is to be paid now is the amount that ought to have been paid in 1999 during the period of Iddat. While sitting in judgment over the correctness of the quantum fixed any person with commitment to the cause of justice cannot afford to ignore the fact that even after the lapse of 10 years from the date of the divorce, the payment that ought to have been made remains yet to be paid. It is pointed out that in spite of the interim order dt.04.06.08 passed by this Court obliging the petitioner to pay a further amount of Rs.20,000/- within a period of 45 days, the amount remains unpaid even now.
10. I have adverted in detail to the principles which should apply while quantifying the amount payable under Section 3 of the Act in the decision reported in Aboobacker v. Rahiyanath [2008(3) KLT 482]. Taking all the relevant circumstances into account, I am not persuaded to agree that the amount of Rs.92,250/- which is directed to be paid as fair and reasonable provision and maintenance to the divorced wife is excessive or perverse at any rate to justify the invocation of the extraordinary inherent jurisdiction under Section 482 Cr.P.C.
11. I must also alertly note that admittedly the petitioner was employed abroad even prior to divorce. Admittedly he is Crl.M.C. Nos.698 and 3245 of 2008 8 employed abroad even now. It is true that during the interregnum, for some period, he was not employed abroad and he was available in India to tender evidence as a witness in this case. But the fact remains that prior to divorce and subsequent to divorce, he was and continues to be employed abroad. The learned counsel for the petitioner relying on observations in various decisions contends that courts in many cases had accepted the multiplier of 5 years to be just and reasonable. I have adverted to this specific aspect in Aboobacker v. Rahiyanath [2008(3) KLT 482]. There is no invariable rule that the multiplier multiplicand method should be accepted in all cases and the multiplier adopted by courts in different cases must be held to be rigidly binding on the subordinate court later when the attempt is made to quantify the amount payable under Section 3 of the Muslim Women's (Protection of Rights on Divorce) Act.
12. I am not satisfied that the amount of Rs.92,250/- fixed by the court below is in any way incorrect, excessive, perverse or unjustified as to justify the invocation of the jurisdiction under Section 482 Cr.P.C. In the circumstances of the case, the quantum fixed does appear to be absolutely reasonable. Crl.M.C. Nos.698 and 3245 of 2008 9
13. Finally it is contended that steps under Section 421 Cr.P.C have not been exhausted. The petitioner has no specific contention before me that recovery can be effected by proceedings against any item of property of his. There is only a blanket and vague contention raised that the steps under Section 421 Cr.P.C have not been exhausted. The report of the learned Magistrate was called for. The report of the learned Magistrate clearly shows that the distress warrant was issued and the same was returned with the endorsement that the petitioner has got no movable or immovable properties. In the report dt.28.02.08, this is what the learned Magistrate has reported.
"In a report submitted in the matter to a warrant issued by the Chief Judicial Magistrate's Court in 2001, it is stated that the counter petitioner has got no movable or immovable property. There are also reports to the effect that the counter petitioner is employed in "Gulf". "
There is thus no substance in the contention that the steps under Section 421 Cr.P.C have not been exhausted.
14. No other contentions are raised. In conclusion, the learned counsel for the petitioner prays that a short further time may be given to the petitioner to discharge the entire liability before he is sent to prison. The amount was ordered at the time of divorce in 1999. The claimant has been waiting from 1999 Crl.M.C. Nos.698 and 3245 of 2008 10 patiently. I am not persuaded to agree that any further time can or need be granted to the petitioner. The petitioner must immediately make payment of the entire amount due from him.
15. The learned counsel for the petitioner further contends that the petitioner has made certain payment towards the amount of Rs.92,250/- payable under the impugned order. The learned counsel for the respondent submits that only an amount of Rs.26,000/- has been paid towards the amount due. The learned counsel for the respondent submits that the petitioner is attempting to confuse the issue. Certain payments have been made towards the maintenance of the children and the petitioner is trying to include those payments also in this claim for discharge under the impugned order. I need not express any opinion on that aspect. The parties can advance arguments about the alleged partial discharge of the amount payable. Such contentions can be raised before the learned Magistrate. I need only mention that the learned Magistrate must forthwith take steps for execution of the order. The petitioner shall appear before the learned Magistrate on 15.09.08 for execution of the order passed if the entire balance is not paid by then. If the petitioner does not so appear or does not make payment, the learned Magistrate must forthwith take Crl.M.C. Nos.698 and 3245 of 2008 11 all necessary steps including the impounding of the passport of the petitioner to compel him to undergo the sentence imposed.
16. These Crl.M.Cs are, in these circumstances, dismissed with the above observations.
(R.BASANT, JUDGE) rtr/-