Kerala High Court
M.M.Muhammad vs Nabeesa on 17 October, 2008
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2979 of 2007()
1. M.M.MUHAMMAD, S/O.MYTHEEN,
... Petitioner
Vs
1. NABEESA, 43 YEARS, PARAKKAL,
... Respondent
2. STATE OF KERALA BY PUBLIC PROSECUTOR,
For Petitioner :SRI.N.ANILKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :17/10/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 2979 OF 2007
............................................
DATED THIS THE 17th DAY OF OCTOBER, 2008
ORDER
Petitioner is challenging the order passed by Judicial First Class Magistrate, Kothamangalam in M.C.1 of 2006, whereunder petitioner was directed to pay Rs.86,001/- to second respondent, his dissolved wife under Section 3(2) of Muslim Women (Protection of Rights on Divorce)Act. Admittedly, the marriage of petitioner with second respondent was solemnised on 2.2.1992. That marriage was subsequently dissolved on 13.10.1998. M.C.1 of 2006 was filed claiming maintenance for the Iddath period and fair and reasonable provision.
2. Learned Magistrate, on the evidence, found that petitioner is having sufficient income and first respondent is entitled to maintenance at the rate of Rs.2000/- per month for Iddath period. Learned Magistrate also found that first respondent is entitled to the fair provision estimated at Rs.2000/- per month for five years and also entitled to get Rs.101/- which was paid as Mahr at the time of marriage. As it is proved that as maintenance for the said period, petitioner paid Rs.37,000/-, that amount was allowed to be deducted and petitioner was directed CRRP 2979/2007 2 to pay the balance amount of Rs.86,001/- within one month from the date of the order on 24.6.2007. Petitioner is challenging the order in this revision petition.
3. Learned counsel appearing for petitioner and first respondent were heard. Learned counsel appearing for petitioner vehemently argued that evidence of petitioner as CPW1 establish that Rs.30,000/- was paid at the time of Talak as reasonable provision for future maintenance of the dissolved wife and learned Magistrate was not justified in not deducting that amount. Learned counsel appearing for first respondent submitted that there is absolutely no evidence to prove the disputed payment of Rs.30,000/- and in such circumstances, there is no reason to interfere with the order passed by learned Magistrate.
4. It is admitted case that even during 1993, first respondent has filed a petition before Magistrate Court, claiming maintenance under Section 125 of Code of Criminal Procedure and petitioner was directed to pay maintenance. That liability and payment continued even after 13.10.1998, the date of Talak. In fact, O.P.300 of 1999, evidenced by Ext.D3 order passed by the Family Court was subsequent to the Talak. Ext.D3 shows CRRP 2979/2007 3 that M.C.380 of 1993 was originally filed before Magistrate Court, claiming maintenance under Section 125 of Code of Criminal Procedure. It is during the subsistence of that order directing petitioner to pay maintenance under Section 125 of Code of Criminal Procedure, the Talak was effected. Case of the petitioner is that Rs.30,000/- was paid as reasonable and fair provision at the time of Talak. But there is no evidence to prove such payment. First respondent has denied the receipt of any such amount. As rightly argued by learned counsel appearing for first respondent, when the relationship between the parties were strained and an order of maintenance was passed by the learned Magistrate, compelling petitioner to pay maintenance and meanwhile the marriage was dissolved on 13.10.1998, it cannot be believed that petitioner would pay Rs.30,000/- as reasonable and fair provision for his divorced wife at the time of Talak without getting acknowledgment in writing. In the absence of any other evidence, learned Magistrate rightly found that petitioner did not pay Rs.30,000/- as fair and reasonable provision. On the evidence, there is no reason to interfere with that finding.
5. Learned Magistrate awarded a reasonable and fair CRRP 2979/2007 4 provision estimating maintenance for the period of five years. In such circumstances, there is no reason to interfere with the quantum also. Hence, revision is only to be dismissed. Learned counsel appearing for petitioner then submitted that when the revision was admitted, petitioner was directed to deposit Rs.30,000/- before learned Magistrate and it was deposited and by subsequent order this court permitted first respondent to withdraw that amount and only the balance remains and petitioner may be permitted to pay the balance amount in instalments. Petitioner is permitted to pay the balance amount in five equal monthly instalments, starting from 1.11.2008.
M.SASIDHARAN NAMBIAR, JUDGE lgk/-