Kerala High Court
Puthiyapurayil Moideenkunchi vs U.K.P.Rasheeda on 7 September, 2009
Author: K.Hema
Bench: K.Hema
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS.JUSTICE K.HEMA
MONDAY, THE 7TH DAY OF SEPTEMBER 2009/16TH BHADRA 1931
Crl.MC.No. 2643 of 2006 ( )
---------------------------
CRRP.63/1999 of D.C. & SESSIONS COURT,THALASSERY
MC.112/1997 of J.M.F.C.-II, KANNUR
PETITIONER/REVISION PETITIONER/RESPONDENT:
------------------------------------------------------
PUTHIYAPURAYIL MOIDEENKUNCHI,
S/O.KUNHAMMED, AGED 34 YEARS
RESIDING AT PALLIPARAMBA, KOLANCHERRY AMSOM
PERUMACHERY DESOM.
BY ADVS.SRI.A.MOHAMED MUSTAQUE
SRI.M.K.SUMOD
RESPONDENT/RESPONDENT/PETITIONER:
----------------------------------------------
1. U.K.P.RASHEEDA,
D/O.ABDUL RAHIMAN HAJI, RESIDING AT PALLIPARAMBA
P.O.KOLANCHERRY.
2. STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY ADV. SRI.I.V.PRAMOD
BY ADV. SRI.SOJAN MICHEAL
BY ADV. PUBLIC PROSECUTOR SRI.B.VINOD
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
07-09-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
K.HEMA, J.
-------------------------
Crl.M.C No. 2643 of 2006
--------------------------
Dated this the 7th day of September, 2009
O R D E R
This petition is filed under Section 482 of Code of Criminal Procedure.
2. The petitioner is the respondent in M.C No.112/97 on the file of the Magistrate Court. The respondent herein filed petition under Section 3 (i) of the Muslim Women's (Protection of Rights and Divorce) Act claiming a total amount of Rs.1,29,500/- from the petitioner. According to the respondent, petitioner married the respondent in the year 1989 and a child was born in that wedlock in 1995 and the petitioner left for Gulf in April, 1995.
3. While the respondent was residing in the house of the petitioner, she was induced by his brother to have sexual intercourse and in that sexual relationship a child was also born on 4.10.1996. The petitioner came to the native place on the very same day and on 17.10.1996, she was divorced by the petitioner by pronouncing Talaq. No maintenance was given to her .
4. According to respondent, she is from a rich Crl.M.C No. 2643 of 2006 2 reputed Muslim family and after the marriage, 25 sovereigns of gold ornaments were taken from the respondent by the petitioner. Rs.80,000/- was also taken from her and she is entitled to get Rs.3 lakhs as reasonable and fair provision for her future maintenance. She also claimed Rs.15,000/- as maintenance for the period of Iddat. According to respondent, petitioner is doing business in Sharjah and earning not less than Rs.50,000/-. He has got a business in Bangalore and getting Rs.10,000/- per month. She claimed an amount of Rs.4,83,500/- in total.
5. The petitioner admitted the marriage and the divorce. According to him, respondent was leading an adulterous life and a child was also born in such relationship. It is not correct to say that his brother induced her for sexual relationship with him. The allegation of appropriation of 25 sovereigns of gold ornaments and Rs.80,000/- is denied. His case is that he lost his job abroad, he has no business in Bangalore and he is only working as a labourer in a hotel for a salary of Rs.400/-.
6. The Magistrate court analysed the evidence consisting of oral testimony of PW1 and RW1. On an Crl.M.C No. 2643 of 2006 3 analysis of such evidence, it was found by the Magistrate court that respondent is entitled to get Rs.3,000/- as maintenance per month for the period of Iddat, though the amount is far less taking into consideration the financial status of the respondent and her family members. As per evidence, her father was employed in Gulf for quite a long time and RW1 admitted in cross-examination that he used to pay Rs.2,000/- per month to the respondent while they were in good terms of each other.
7. Therefore, at any rate, the maintenance was fixed at Rs.6,000/- per month towards the period of Iddat. In the light of the judgment of this court reported in M.Ahammed Vs. Puthiya Veettil Aysha [1990 (1) KLJ 101] reasonable and fair provision was fixed for a period of five years at the rate of Rs.2000/- per month.. Rs.1,20,000/- was ordered on this count. Towards value of mahar, Rs.3,500/- was ordered and Rs.500/- towards cost.
8. In the revision filed against the said order, learned Sessions Judge found that the amount awarded is only reasonable though according to the said court, Rs.1,500/- would be sufficient towards maintenance per month and Crl.M.C No. 2643 of 2006 4 taking into account the age of the respondent at the time of divorce being 21 years. It was found that she would be entitled to get Rs.1,26,000/-. However, the amount ordered towards Iddat at Rs.6,000/- was not interfered with. The Sessions Court found that towards one sovereign the amount ordered towards the value of mahar as Rs.3,000/- can be accepted. The said order is under challenge.
9. Learned counsel for the petitioner submitted that the status of the petitioner was not taken into account while fixing the amount of maintenance. On going through both the orders, I find that courts have considered the status of the parties, the requirements of the respondent and the cost of living etc and the amount ordered cannot be said to be high, in the light of the evidence given, particularly, the admission made by RW1 that he used to pay Rs.2,000/- per month towards expenses of the respondent. The amount calculated towards fair and reasonable provision is based on the dictum laid down in the decision cited above and such calculation cannot be said to be improper or illegal.
10. Learned counsel for the petitioner argued that the respondent is not entitled to get maintenance since she was Crl.M.C No. 2643 of 2006 5 living in adultery. But it was found by the trial court that it is not a relevant fact to deny the claim, since the amount payable under Section 3 of the Act is towards maintenance, fair and reasonable provision, for a divorced woman. Nothing is stated in the said section that a woman who lived in adultery and who was divorced on that ground will be dis- entitled from getting maintenance or the other amounts towards fair and reasonable provision. There is no illegality or impropriety in the order passed.
11. Learned counsel for the petitioner submitted that petitioner may be allowed to pay the amount in instalments within two months. The petitioner is at liberty to make the payment either in instalments or in bulk. As far as recovery of the amount is concerned, sub-section (4) of Section 3 of the Act shows that if any person against whom an order is passed under Section 3 (3) fails without sufficient cause to comply with the order, a warrant can be issued for levying the amount of maintenance or mahar or dower in the manner provided for levying fine under Cr.P.C and he can be sentenced only if the whole or part of any amount remaining unpaid after execution of the warrant. There can Crl.M.C No. 2643 of 2006 6 be no doubt, this will take sufficient time. However, I am not inclined to pass any order allowing him to pay the amount within any particular period.
This petition is dismissed.
Sd/- K.HEMA, JUDGE aks /True copy/ P.A to Judge