Kerala High Court
K.Musthafa vs E.Shereena on 22 October, 2009
Author: K.Hema
Bench: K.Hema
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS.JUSTICE K.HEMA
THURSDAY, THE 22ND DAY OF OCTOBER 2009/
Crl.MC.No. 399 of 2006 (A)
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CRRP.11/2003 of ADDL.SESSIONS COURT, KOZHIKODE
MC.30/2001 of J.M.F.C.-V,KOZHIKODE
PETITIONER/REVISION PETITIONER:
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K.MUSTHAFA, S/O.KUNHIKOYA,
KALAKANDIYIL VEEDU, GURUVAYOORAPPAN COLLEGE
IRINGALLOOR AMSOM, PALAZHI DESOM, KOZHIKODE.
BY ADVS.SRI.R.SUDHISH
SMT.M.MANJU
RESPONDENT/PETITIONER:
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E.SHEREENA, D/O.RAYIN, EDAKKAD VEEDU,
POST PANTHERANKAVU, PERUMANNA AMSOM, VELLAYIKODE
DESOM, KOZHIKODE TALUK, NOW RESIDING AT MANAPPATTU
MEETHAL, POST PANTHEERANKAVU, MANAKKADAVU
KOZHIKODE.
BY ADV. SRI.C.PUSHPODHARAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
22-10-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
K.HEMA, J.
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Crl.M.C.No.399 OF 2006
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Dated this the 22nd day of October, 2009
O R D E R
This revision is filed for quashing Annexure-A1 and A2 orders.
2. The respondent filed M.C.No.30/2001 before the Magistrate Court under Sec.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and it was allowed in part as per Annexure-A1 order and petitioner was directed to pay `1,00,000/- towards future maintenance and `6,000/- for the maintenance during the period of three months. This order was challenged before the Sessions Court in a revision and it was dismissed confirming the order of trial court as per Annexure-A2 order.
3. According to learned counsel for the petitioner, the respondent got remarried during the pendency of revision on 4.2.2005 and this fact was brought to the notice of the court by Crl.M.C.No.399 OF 2006 2 filing an affidavit. But, the revision court did not consider this fact. Had this fact been considered, the amount ordered would have been lesser, it is submitted.
4. According to learned counsel for the petitioner, the remarriage is a factor which can be looked into, for deciding the quantum of maintenance to be ordered in the case of a divorced woman, it is submitted. He submitted that the amount ordered under Sec.3 may be reduced, taking into account the remarriage. On hearing both sides and on going through the impugned orders, I find that the only ground on which a reduction in the quantum is sought for is the remarriage of the respondent.
5. It appears from the impugned judgment that the court found that it is not in a position to apply the dictum laid down in Rasiya v. State of Kerala 2002(2) KLT 825, since the filing of an affidavit alone is not sufficient to record a finding that the respondent has remarried on 4.2.2005. Learned counsel for the petitioner argued that the court ought to have acted upon the affidavit and found that respondent is remarried. Crl.M.C.No.399 OF 2006 3
6. As per the decision in Rasiya's case, the remarriage is also a relevant factor to be considered in fixing the quantum. But the said decision is overruled by decision of a Division Bench of this court in Abdul Hameed v. Fousiya (2004(3) KLT 1049). It is held by a Division Bench in the said decision in paragraph 26 thus:
"As pointed out by the learned Judges, in both Nizar and Raisya, a remarriage becomes a relevant criterion for adjudging the compensation package. Our finding is that such an interpretation viz. that a remarriage would also be a criterion while the enquiry is made under Sec.3(3) is decipherable from the provisions of the statute to which we have presently adverted. Remarriage has only a limited impact on the claim, and that tooLikewise,thewematter only in of fixation of a fair provision. hold that a remarriage of divorced woman will not confer a cause of action for the former husband for a direction for regurgling the benefits ordered/paid, as the statute has not envisaged such a contingency. When the liabilities had been enquired and adjudged under a special enactment, by indirect methods, the benefits payable cannot be withheld or recovered".
7. Therefore, even if a finding is entered on the basis of the affidavit that the respondent is remarried, it will be of no consequence, so far as the quantum is considered. Even if there Crl.M.C.No.399 OF 2006 4 is remarriage, several other factors are to be looked into for reducing quantum. But in the absence of any evidence on the relevant aspects, revisional court or this court, cannot reduce the quantum by invoking power under Sec.482 Cr.P.C. merely on the ground that there is a remarriage (Vide Aboobacker v. Rahiyanand & another (2008(3) ILR 401).
In the above circumstance, I find that there is absolutely no ground to interfere with the quantum. It is only `1,00,000/- and `6,000/- each during the iddat period.
Petition is dismissed.
K.HEMA, JUDGE cms