Kerala High Court
Kunhi Mohammed vs A.P.Sajitha on 15 March, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 20TH DAY OF NOVEMBER 2013/29TH KARTHIKA, 1935
Crl.MC.No. 1412 of 2011 ( )
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AGAINST THE ORDER IN CRRP 17/2010 of ADDITIONAL SESSIONS COURT
(ADHOC), MANJERI DATED 15-03-2011
AGAINST THE ORDER IN MC 49/2007 of JUDICIAL FIRST CLASS
MAGISTRATE,TIRUR DATED 22-01-2010
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PETITIONER/REVISION PETITIONER/RESPONDENT:
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KUNHI MOHAMMED,AGED 40 YEARS
S/O.MOHAMMED KUTTY HAJI, NALAKATH HOUSE,
VADAKKUMPURAM POST, VALANCHERI, MALAPPURAM DISTRICT
BY ADV. SRI.JACOB SEBASTIAN
RESPONDENTS/RESPONDENTS/PETITIONERS & STATE:
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1. A.P.SAJITHA,AGED 34 YEARS,
D/O.A.P.MOIDEEN(L), ARANGATHUPARAMBIL, CHAKKUMPADI
VADAKKUMPURAM POST, EDAYUR, VALANCHERI
MALAPPURAM, DISTRICT - 676552.
2. STATE OF KERALA,REP.BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADVS. SRI.A.MOHAMED MUSTAQUE
SRI.K.R.AVINASH (KUNNATH)
R2 BY PUBLIC PROSECUTOR SRI.PADMALAYAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 20-11-2013, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
BP
Crl.MC.No. 1412 of 2011 ( )
APPENDIX
PETITIONER'S ANNEXURES :
ANNEXURE A1: COPY OF THE ORDER DT 22/01/2010 IN MC
NO. 49/2007 OF THE COURT OF THE JUDICIAL FIRST
CLASS MAGISTRATE, TIRUR.
ANNEXURE A2: COPY OF THE ORDER DT 15/3/2011 IN CRRP
NO. 17/2010 IN M.C NO. 49/2007 OF COURT OF THE
ADDITONAL SESSIONS JUDGE (ADHOC)1 MANJERI
RESPONDENT'S ANNEXURES : NIL.
//TRUE COPY//
P.A. TO JUDGE
BP
K.RAMAKRISHNAN, J.
------------------------------------------------------------- C.R.
Crl. M.C. No.1412 of 2011
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Dated this the 20th day of November, 2013
O R D E R
This criminal miscellaneous case is filed by the petitioner, who is the respondent in M.C. No.49/2007 on the file of the Judicial First Class Magistrate Court, Tirur, to quash Annexure-A1 and A2 orders of the Judicial First Class Magistrate Court, Tirur and Additional Sessions Court, (Ad Hoc) - I Manjery, under Section, 482 of the Code of Criminal Procedure.
2. The case of the petitioner is that, the first respondent is the divorced wife of the petitioner and she filed a petition under Section 3(1) of the Muslim Women's (Protection of Rights on Divorce) Act, claiming an amount of 12,000/- towards maintenance during the period of iddat and 7,20,000/- towards fair and reasonable provision. The petitioner appeared and contended that he had paid 50,000/- towards Crl. M.C. No.1412 of 2011 2 maintenance during the iddat period and other reasonable provision and as such, he is not liable to pay any amount. After considering the evidence on record, the learned magistrate passed Annexure-A1 order, directing the respondent to pay 3,000/- per month towards maintenance during iddat period and 3,60,000/- as reasonable and fair provision for future maintenance. Aggrieved by the same, the petitioner filed Criminal R.P.17/2010, before the Sessions Court, Manjeri and the same was disposed of by the Additional Sessions Court (Ad Hoc)-I Manjeri, as per Annexue-A2 order, dismissing the revision filed by the petitioner. Dissatisfied with the same, he has come before this court.
3. Heard both the counsels.
4. The counsel for the petitioner submitted that, both courts have not considered the fact that he had paid 50,000/- towards maintenance, during iddat period and also fair and reasonable provision, which is within his Crl. M.C. No.1412 of 2011 3 capacity and that was accepted by the first respondent. As such, she is estopped from claiming any further amount from the petitioner. Further, the income fixed by the court below is also excessive, as he is only working as a worker in a hotel. So the total amount awarded is excessive and the orders passed are perverse and against the evidence.
5. On the other hand, the counsel for the first respondent submitted that, the jurisdiction of this court under Section 482 is very limited and the trial court as well as the revision court has considered the aspects in detail and passed just and reasonable order and no interference is called for.
6. It is an admitted fact that the petitioner married the first respondent in the year 1989 and thereafter, he divorced her on 20.11.2006. Since, the statutory amounts payable under the provisions of Muslim Women's (Protection of Rights on Divorce) Act, Crl. M.C. No.1412 of 2011 4 (hereinafter called the `Act') has not been paid, she filed petition before the magistrate court under Section 3(1) of the `Act'. Though, the petitioner had a case that he had paid 50,000/- towards maintenance during iddat and matha, no evidence has been adduced on his side to prove this fact. So the courts below were perfectly justified in rejecting the contention raised by the petitioner.
7. The fact that, he worked in gulf country was proved by the evidence of first respondent. So, it cannot be said that the amount of 3,000/- per month, fixed by the learned magistrate as the monthly maintenance payable to the first respondent during iddat period is excessive. Reasonable amount is required for a person to live a decent life. The former husband is liable to provide all facilities, which she had enjoyed during the substance of marriage, even after divorce in order to make her living a comfortable one, till her death or re- marriage. So considering these aspects, the amount of Crl. M.C. No.1412 of 2011 5 3,000/- per month as maintenance payable during the period of iddat fixed by the learned magistrate, cannot be said to be excessive. So, the Additional Sessions Court, was perfectly justified in coming to the conclusion that, the amount of 3,000/- per month awarded as maintenance during the period of iddat is perfectly justifiable and that does not call for any interference.
8. The counsel for the petitioner has a case that, the courts below were not justified in taking 10 years purchase for capitalising the monthly income for assessing the fair and reasonable provision payable to the divorced wife and only five year purchase value has to be taken for this purpose. In the decision reported in 2007 (1) KLT 724 (Haseena v. Abdul Jaleel), this court has held that the fact that, the wife was studying at the time of marriage and she wanted to continue her studies after divorce is not an irrelevant factor in fixing the quantum of reasonable and fair provision of maintenance under Crl. M.C. No.1412 of 2011 6 Section 3(1) of the Act. In that case, monthly maintenance was fixed 1,500/- per month and 3,04,500/- was awarded under the head fair and reasonable provision, that was confirmed by this court, in that decision. In that decision, this court has relied on the decision reported in (Aliyar v. Pathu) 1988 (2) KLT 446 and observed that, "since, the main purpose of statute is to protect the interest of divorced muslim woman, even if there is any ambiguity in the language of statute or even if two interpretations are equally possible, that interpretation which is reasonable and would protect the interest of divorced muslim woman has to be adopted by the court. Besides, paying maintenance to the divorced wife for the iddat period, former husband has to provide reasonably and fairly for the future needs of the divorced wife, that is, the use of the divorced wife after the period of iddat and till her marriage or death".
9. In the decision reported in 2008 (3) KLT Crl. M.C. No.1412 of 2011 7 482 (Aboobacker v. Rahiyanath), this court has given guide lines to be followed, for fixing fair and reasonable provision for a divorced muslim woman under Section 3 of the Act, which reads as follows:
"i) A remarriage of the claimant can have very little effect on her pending claim. The actual date of post iddat remarriage is not a relevant factor to be reckoned for computing the amount payable u/S.3(1) (a) of the Act;
ii) A divorced Muslim wife's right U/s. 125 Crl.P.C. extinguishes as soon as the husband satisfies his obligation u/S.3(1)(a) of the Act in view of S.127(3)(b) of the Crl.P.C. Failure of a husband to meet the obligations u/S.3(1)(a) of the Act give rise to the right of the divorced wife to resort to the provisions of the Act;
iii) The right available to a Muslim wife u/S. 3(1)(a) of the Act is larger than what is available u/S.125 of the Code;
iv) The reasonableness of "Mata" has to be ascertained conscious of the time, space, and factual realities of the society in which the claimant, husband and the society around exists and not on the basis of the norms and morals that were available in medieval Arabia;
v) Inputs to be considered while computing the claim U/s.3(1)(a):-
- Length of the period of matrimony,
- Age at which the relationship began and ruptured,
- The cause of rupture-whether contumacious or not-
Greater the contumaciousness on the part of the Crl. M.C. No.1412 of 2011 8 husband, greater the amount to be paid,
- The emotional trauma suffered by the victim of rupture,
- Unilateral and arbitrary divorce, at the instance of the husband against an unwilling wife, to be given due weight,
- The support, concern, etc. which the victim partner had offered to the other partner,
- The investment made by the wife in a marriage,
- The degree of financial affluence,
- The material conveniences of life which the partners are used to and the possibility of them being able to pursue an identical life style in future,
- Possibility of remarriage and all the trauma attendant on a second marriage,
- Quality of life which a remarried woman can aspire to lead vis-avis her first marriage,
vi) Actual date of remarriage may not be a relevant input.
vii) After the enactment of Muslim Women (Protection of Rights on Divorce) Act, the question with regard to marriage and maintenance of a Muslim women is governed by the Act and not by the Personal Law (Shariat) and in case of a dispute between the two, the former shall prevail,
viii) Inability to maintain herself is not a condition precedent for a Muslim wife for claiming the benefit u/S.3(1)(a) of the Act."Crl. M.C. No.1412 of 2011 9
10. In the decision reported in 2011 (2) KLT 387 (Abdul Rahman v. Hairunnisa), it has been held that while fixing the reasonable and fair provision and maintenance to the divorced wife, the court shall keep in view, the status of the parties, capacity and ability of the former husband and such other attendant circumstances. The age of the divorced woman as well as the chance of re-marriage has also to be taken into account. In that case and the decisions reported in 2006 (3) KLT 690 (Musthafa v. Fathimakutty), 2007 (1) KLT 724 (Haseena v. Abdul Jaleel) and 2009 (3) KLT 37 (Seenath v. Iqbal), the multiplier was enhanced from 5 years of purchase to a higher period. In Haseena's case, 200 times the monthly maintenance was adopted for the purpose of providing fair and reasonable provision. In Seenath's case, adopting 166 times of the monthly maintenance was approved. In the decision reported in 2009 (3) KLT 37 (Seenath v. Iqbal), it has been held Crl. M.C. No.1412 of 2011 10 that "the court must find out whether the divorced woman had in fact received reasonable and fair provision and maintenance apart from other dues as postulated under Section 3 of the Act. It must be ensured that the dues paid are in consonance and harmony with the statutory obligation cast on the former husband in terms of its real money value. The payment must be such that it takes care of the future needs of the woman in the prevailing socio-economic scenario. The words 'reasonable and fair provision of maintenance' shall not be rendered illusory or meaningless".
11. In that decision learned Single Judge had quoted the words of Lord Denning as follows:
21. Lord Denning in his inimitable style has stated thus:
"Many of the Judges of England have said that they do not make law. They only interpret it. This is an illusion which they have fostered. But it is a notion which is now being discarded everywhere. Every new decision-on every new situation- is a development on the law. Law does not stand still. It moves continually. Once this is recognized, then the task of the Judge is put on a higher plane. He must consciously seek to mould Crl. M.C. No.1412 of 2011 11 the law so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason, laying brick on brick, without thought to the overall design. He must be an architect - thinking of the structure as a whole - building for for society a system of law which is strong, durable and just. It is on his work that civilised society itself depends".
So it is clear from the above dictums, that the courts should not shut their eyes regarding the realities in life while fixing the quantum of amount payable under the fair and reasonable provision under Section 3 of the Act to a divorced muslim woman. Court also must be practical while fixing the amount as to consider whether that will cater the need of the divorced woman during the period of her life time till her re-marriage or death. The principle of 5 years purchase value has to be used for capitalising the amount for fixing the quantum payable under the head fair and reasonable provision was laid down in the decision reported in (Ahammed v. Aysha) 1990 (1) KLT 172. One will have to think about the money value at that time and also the present time. Fall Crl. M.C. No.1412 of 2011 12 of money value has to be taken into consideration, while fixing the quantum of fair and reasonable provision to be payable to a divorced muslim woman under the provisions of this Act. If the above things are taken into consideration, it is high time to increase the multiplier, namely the years purchase value for the purpose of quantifying or capitalising the amount payable under the above head. So under such circumstances, ten years purchase value adopted by the courts below for capitalising the amount payable under the head reasonable and fair provision cannot be said to be excessive. So the total amount of 3,60,000/- awarded by the tribunal, taking 3,000/- per month as income and 10 as multiplier, cannot be said to be excessive. Considering the age of the petitioner and remote possibility of re- marriage etc., the amount of 3,60,000/- awarded under this head is just and reasonable and I do not find any reason to interfere with the amount awarded by the court Crl. M.C. No.1412 of 2011 13 below under this head as well. So there is no merit in the petition and the same is liable to be dismissed and I do so.
12. However, the counsel for the petitioner submitted that a reasonable time may be granted for paying the amount. The request appears to be reasonable. Three months time is granted to the petitioner to discharge this amount as well.
With the above direction, this criminal miscellaneous case is dismissed.
Sd/-
K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss