Kerala High Court
Seenath vs Iqbal on 6 February, 2008
Equivalent citations: AIR 2010 (NOC) 636 (KER.)
Author: A.K.Basheer
Bench: A.K.Basheer
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2586 of 2003(D)
1. SEENATH, D/O.MUHAMMEDUNNI,
... Petitioner
Vs
1. IQBAL, S/O.MUHAMMED, PALLIPARAMBIL HOUSE
... Respondent
2. STATE OF KERALA REP. BY
For Petitioner :SRI.V.M.KRISHNAKUMAR
For Respondent :SRI.C.KHALID
The Hon'ble MR. Justice A.K.BASHEER
Dated :06/02/2008
O R D E R
A.K.BASHEER, J.
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Crl.R.P.No.2586 OF 2003
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Dated this the 6th day of February 2008
ORDER
Petitioner is a divorced Muslim woman. She impugns the order passed by the trial court rejecting her application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short, 'the Act') claiming a total sum of Rs.1,00,000/- from her former husband, towards fair and reasonable provision and maintenance and other statutory dues. The learned Magistrate held that the petitioner was not entitled to get any amount from her former husband, since she had already received whatever was due under Ext.D1 agreement.
2. Is the above view legally valid and sustainable?
3. It is not in dispute that the respondent/husband had divorced the petitioner unilaterally, by pronouncing talaq through his communication dated February 5, 1996, which was produced and marked as Ext.P1 in the case. Petitioner approached the Court below claiming that she was entitled to get fair and reasonable provision and maintenance and other Crl.R.P.No.2586 OF 2003 :: 2 ::
customary dues as provided under Section 3 of the Act, being a divorced woman as defined under the Act. Her contention was that her former husband had not paid any amount towards the above statutory dues though he had been earning a monthly income of Rs.7,000/- from his employment in a Sea Food Company.
4. The above claim was resisted by the respondent contending inter alia that the petitioner had been paid whatever was payable by him under law. He contended that he was not earning Rs.7,000/- per month as alleged by the petitioner nor had been getting any income from any other sources. He further contended that he had already returned ornaments weighing 12 sovereigns and cash of Rs.15,000/- given to her by her parents and relatives at the time of the marriage. He pressed into service Ext.D1 agreement executed between him and his former wife evidencing such payment. The learned Magistrate accepted the above contention primarily relying on a decision of this court in Mytheen V. Saphiya (1993 (2) KLT 322).
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5. As mentioned earlier, the specific case of the respondent/husband before the court below was that he had paid all the customary and statutory dues payable by him as provided under Section 3 of the Act apart from returning the gold ornaments and cash of Rs.15,000/- received by the petitioner from her parents at the time of her marriage. He pressed into service Ext.D1 agreement in support of the above contention.
6. It is pertinent to note that Ext.D1 agreement was admittedly executed by the petitioner and the respondent at Valappad Police Station. It is seen from Ext.D1 that a total sum of Rs.60,792/- was paid by the respondent to the petitioner. The relevant recital in Ext.D1 agreement which is in Malayalam is extracted hereunder:
"
12 ( ) 15,000 ( ) 60792 Crl.R.P.No.2586 OF 2003 :: 4 ::
( )
."
7. The above recital, in my view, will only mean that the sum of Rs.60,792/- being the value of gold ornaments weighing 12 sovereigns and cash of Rs.15,000/- received by the petitioner from her relatives at the time of her marriage were returned to her. But the respondent while he was examined as RW1 had attempted to give a new interpretation to the above recital by saying that he had handed over the ornaments weighing 12 sovereigns to the petitioner apart from paying Rs.15,000/- in cash.
8. However, it was asserted by the petitioner that the value of one sovereign was Rs.4,722/- at that time (which was not controverted) and 12 sovereigns would have cost Rs.45,792/-. According to her, the value of 12 sovereigns plus Rs.15,000/- totalling to Rs.60,792/- only was paid by the respondent at the time of execution of the agreement.
9. It is true that the respondent had disputed the correctness of the above contention in his cross-examination. Crl.R.P.No.2586 OF 2003 :: 5 ::
But I find that the calculation made by the petitioner on the basis of the value of one sovereign at the relevant point of time, is eminently plausible and acceptable.
10. There is yet another aspect of the matter. The Police Constable who was working at Valappad Police Station at the relevant point of time was examined as PW3 in the case. He had categorically deposed before the court that the respondent had not handed over any ornaments to the petitioner at the time of execution of Ext.D1 agreement. In fact PW3 stated that the respondent had initially brought some ornaments to be delivered to the petitioner. The Circle Inspector of Police had asked PW3 to take the ornaments to a goldsmith to ascertain the genuineness or quality of the gold. The goldsmith had opined that the gold was not of good quality. Therefore, the petitioner had refused to accept the ornaments offered by the respondent and insisted that she be paid the value of 12 sovereigns of gold. It was thereafter that the respondent had agreed to pay the value of the ornaments at the then prevailing rate. Consequently Ext.D1 agreement Crl.R.P.No.2586 OF 2003 :: 6 ::
was executed and the amount mentioned therein was paid to the petitioner at the Police Station.
11. The testimony of PW3 fully corroborates the case of the petitioner that she had received only the value of the gold ornaments in addition to Rs.15,000/- which was paid to her by her parents and relatives at the time of the marriage. In other words, Ext.D1 agreement did not in any way contain any clause indicating that the respondent had paid fair and reasonable provision and maintenance or other customary dues like maintenance for iddat period etc. as provided under the Section 3 of the Act. On that short ground, I have no hesitation to hold that the learned Magistrate was not at all justified in rejecting the claim made by the petitioner.
12. The learned Magistrate had relied on a decision of this court in Mytheen's case (supra). In that case, the parties had entered into an agreement under which the divorced Muslim woman had, while accepting 11,000/- from her former husband, relinquished her right to get future maintenance. It can be seen from the above judgment that the divorced Crl.R.P.No.2586 OF 2003 :: 7 ::
woman had received the said sum of Rs.11,000/- "in full and final settlement" of all claims against her former husband. She had further agreed that she would not make any further claim against her former husband, either towards maintenance or any other dues. This court had only held that the divorced woman in that case was bound by the specific clause contained in the agreement executed between her and her former husband. While apparently dealing with the contention raised by the divorced woman that her former husband could not have contracted out of the statutory obligation, the learned Single Judge had held that "the dictum laid down by this court in Damodaran v. Lakshmikutty Amma (1979 KLT 543) was distinguishable on facts. I do not deem it necessary to deal with the ratio decidendi of the above two decisions at this stage, since in my view the issue that has been raised before me can be considered and decided without entering into the areas of conflict in those two cases in juxtaposition to the facts available in the case on hand. Crl.R.P.No.2586 OF 2003 :: 8 ::
13. The Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted by the Parliament postulating and delineating the obligation of the Muslim husband to pay maintenance to the divorced wife. The above enactment is stated to be an aftermath legislation of the decision rendered by the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum and others [AIR 1985 SC 945].
14. 'Divorced woman' has been defined under Section 2
(a) of the Act as a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim law. Section 3 of the Act postulates that a divorced woman, notwithstanding any other law for the time being in force, shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. She shall be further entitled to get reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of the children born to her Crl.R.P.No.2586 OF 2003 :: 9 ::
before or after her divorce. Further, she will also be entitled to get an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or any time after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
15. It is trite that the court, while fixing reasonable and fair provision and maintenance to be paid to the divorced woman shall keep in view the status of the parties, capacity and ability of the former husband to pay maintenance and all such other attendant circumstances. There is no provision in Act 1986 which is pari materia to Section 127(3)(b) of the Code. But the purpose behind giving absolution of the obligation to pay maintenance is only to avoid giving double benefit to the divorced woman. But at the same time, courts have to keep in view the legislative and social intent and purpose while dealing with an application by an "ill-used"
wife or a "castaway ex-wife" as observed by the apex court.
16. The provisions contained in Act 1986 in no uncertain terms mandate that a divorced Muslim woman should be Crl.R.P.No.2586 OF 2003 :: 10 ::
provided with fair and reasonable provision and maintenance by her former husband. He shall also pay maintenance during "iddat" period, Mahr, etc. and shall return the other properties given to her at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. There is no escape route for the former husband to extricate himself out of the statutory liability by taking recourse to a sprecious plea that he had paid the 'customary dues' to his former wife. 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 and maintenance" shall not be rendered illusory or meaningless.
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17. Before parting with the case, I deem it only apposite to refer to two decisions of their Lordships of the Supreme Court, in Bai Tahira v. Ali Hussain Fidaalli Chothia and another [(1979) 2 SCC 316] and Fuzlunbi v. Khader Vali and another [(1980) 4 SCC 125]. His lordship Justice Krishna Iyer who had rendered the judgments on behalf of three judge benches in the above cases, had dwelt upon the legislative intent, philosophy and social impact of the provisions relating to maintenance of wives, children and parents contained in Chapter IX of the Code of Criminal Procedure.
18. In Bai Tahira, the question that arose for consideration was whether a divorced wife (Bai Tahira) would lose her right to claim maintenance for 'herself' under Section 125 of the Code, if she had made a declaration at the time of passing of a consent decree involving her former husband that she had no further claim against the respondent or her property. It had come on record that Bai Tahira, apart from getting her right in some of the immovable properties, Crl.R.P.No.2586 OF 2003 :: 12 ::
had also received Rs.5,000/- as mehar from her former husband. The trial court while repelling the contention raised by the former husband, that he was not liable to pay any maintenance to his former wife and the children, since she had already received the customary dues and other rights in the properties, directed him to pay Rs.300 to the former wife and Rs.400 each to the children. But the above order was reversed by the Session Court. The Division Bench of the High Court concurred with the view taken by the Sessions Court. Reversing the order of the Sessions Court and the Division Bench of the High Court. the Supreme Court allowed the appeal preferred by the former wife and restored the order of the trial court.
19. While specifically dealing with the provisions contained in Section 125 and 127(3)(b) in the above chapter, Justice Krishna Iyer observed thus:
"The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate Crl.R.P.No.2586 OF 2003 :: 13 ::
but cannot annihilate that rate unless it is a reasonable substitute. The legal sanctity of the payment is certified by the fulfilment of the social obligation, not by a ritual exercise rooted in custom. No construction which leads to frustration of the statutory project can secure validation, if the court is to pay true homage to the Constitution. The only just construction of the section is that Parliament intended divorcees should not derive a double benefit. If the first payment by way of mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order under Section 125 -- not mathematically but fairly -- then Section 127(3) subserves the goal and relieves the obliger, not pro tanto but wholly. The purpose of the payment 'under any customary or personal law' must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. The whole scheme of Section 127(3)(b) is manifestly to recognise the substitute maintenance arrangement by lump sum payment organised by the custom of the community or the personal law of the parties. There must be a rational relation between the sum so paid and its potential as provision for Crl.R.P.No.2586 OF 2003 :: 14 ::
maintenance to interpret otherwise is to stultify the project. Law is dynamic and its meaning cannot be pedantic but purposeful."
20. Their Lordships in Fazlumbi (supra) while dealing with the provisions contained in Section 127(3)(b) laid down that:
"whatever the facts of a particular case, the Code, by enacting Sections 125 to 127, charges the court with the humane obligation of enforcing maintenance or its just equialent to ill-used wives and castaway ex-wives, only if the woman has received voluntarily a sum, at the time of divorce, sufficient to keep her going according to the circumstances of the parties."
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 recognised, then Crl.R.P.No.2586 OF 2003 :: 15 ::
the task of the judge is put on a higher plane. He must consciously seek to mould 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 society a system of law which is strong, durable and just. It is on his work that civilised society itself depends."
22. Having regard to the facts and circumstances of the case on hand, I have no hesitation to hold that the impugned order is liable to be set aside. I do so.
The case is remitted to the court below to quantify the amount of fair provision and maintenance and other statutory dues payable by the respondent to the petitioner. This shall be done by the court below as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this order. Needless to mention, the parties shall be Crl.R.P.No.2586 OF 2003 :: 16 ::
afforded sufficient opportunity to be heard before any decision is taken. Revision petition is allowed in the above terms.
(A.K.BASHEER, JUDGE) jes Crl.R.P.No.2586 OF 2003 :: 17 ::
A.K.BASHEER, J.
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Crl.R.P.No.2586 OF 2003
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ORDER Dated 6th day of February 2008