Kerala High Court
Mujeeb vs Jeeya on 6 November, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 29TH DAY OF MAY 2013/8TH JYAISHTA 1935
Crl.MC.No. 584 of 2008 ( )
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AGAINST THE ORDER IN CRL.R.P NO. 42/2006 OF THE COURT OF SESSION,
KOZHIKODE DATED 06-11-2007
PETITIONER:
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MUJEEB, S/O. ABDULLA,
AGED 29 YEARS, KANIYANKANDY HOUSE, KEEZHUR
MELADI, KOYILANDY TALUK, KOZHIKODE DISTRICT.
BY ADV. SRI.JACOB SEBASTIAN
RESPONDENTS:
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1. JEEYA, D/O. MOIDEEN KOYA,
AGED ABOUT 20 YEARS, ATHAYATTIL HOUSE,
KEEZHARIYOOR P.O., KOYILANDY TALUK, KOZHIKODE DIST.
2. STATE OF KERALA,
REPRESENTED REP. BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.R.K.MURALEEDHARAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
29-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 584 of 2008 ( )
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APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE 1 : COPY OF THE ORDER DATED 14.3.2006 OF THE JUDL.
MAGISTRATE OF THE FIRST CLASS, KOYILANDY IN
M.C.NO.1/2005
ANNEXURE 2: COPY OF THE ORDER IN CRL.R.P.NO.42/2006 OF THE COURT
OF SESSION, KOZHIKODE
RESPONDENT'S ANNEXURES: NIL
//True Copy//
P. A to Judge
ab
K.RAMAKRISHNAN, J
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Crl.M.C.No.584 of 2008
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Dated this the 29th day of May, 2013
O R D E R
The revision petitioner in Crl.R.P.No.42/2006 on the file of the 1st Additional Sessions Judge, Kozhikode, who was the counter petitioner in M.C.No.1/2005 on the file of the Judicial First Class Magistrate Court, Koyilandy is the petitioner herein.
2. The parties are Muslims and the 1st respondent herein married the petitioner herein as per the custom and thereafter she was divorced by the petitioner by pronouncing Talaq. The 1st respondent filed an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter called 'Act') claiming maintenance for the period of 'iddath' and fair provision and future maintenance and also other claims.
3. The respondent appeared and filed counter contending that the marriage was solemnized on 31.3.2002 and it lasted only for two years and it was dissolved on 7.7.2004. The petitioner is remarried and there is no liability for him to pay Crl.M.C.No.584 of 2008 : 2: maintenance. The amount claimed is excessive and he is incapable of paying the amount and he prayed for dismissal of application.
4. After considering the evidence on records, the learned Magistrate fixed the maintenance payable during the period of 'iddath' at Rs.3,000/- per month and awarded Rs.9,000/- for that period and had taken Rs.1,500/- per month and capatalized the same for a period of five years and awarded Rs.90,000/- as fair and reasonable provision and disposed of the petition. Aggrieved by the same the petitioner herein preferred Crl.R.P. NO.42/2006 before the Sessions Court and First Additional Sessions Judge, Kozhikode by the impugned order dated 6.11.2007 dismissed the revision confirming the order of the lower court. Aggrieved by the same, the present petition has been filed by the petitioner to quash the proceedings under Section 482 of the Code of Criminal Procedure.
5. Heard both sides.
6. The learned counsel for the petitioner submitted that at the time of marriage, the 1st respondent was aged only 18 years and the marital relationship lasted only for 1 = years and the future prospectus of the remarriage of the 1st respondent has Crl.M.C.No.584 of 2008 : 3: not been taken note of by both the court below while fixing the fair and reasonable provision payable to the divorced wife. The capacity of the petitioner to pay the amount has also not been considered. On the other hand the learned counsel for the 1st respondent argued that there is no illegality committed by the courts below in passing the order. All relevant aspects have been considered and the quantum of fair and reasonable provision awarded is just and proper.
7. It may be mentioned here that the power of this Court under Section 482 of the Code of Criminal Procedure is very limited and it is not a court of appeal to re-appreciate the evidence again. This Court can interfere with the order passed by the court below only if the order passed is palpably perverse and against law.
8. It is an admitted fact that the petitioner herein married the 1st respondent in the year 2002 and in the year 2004 he pronounced Talaq and the marriage was dissolved. Under such circumstances she had to file an application under Section 3 of the Act. It is true that the 1st respondent is aged only 18 years at the time of marriage and there was no issue in the marriage. It is true that there may be prospectus of remarriage Crl.M.C.No.584 of 2008 : 4: for the 1st respondent. But the question is whether that can be reckoned as a reason for avoiding payment of fair and reasonable provision to the divorced wife. This aspect has been considered by this Court in the decision reported in Abdul Hameed V. Fousiya (2004(3) KLT 1049), wherein it has been observed that remarriage has only a limited impact on the claim and that too only in the matter of fixation of a fair provision. It will not confer a course of action for former husband for a direction for re-gurgling the benefits ordered/paid. In the decision it has been observed as follows:
Therefore, although limits have not been prescribed, legislative interest appears to be clear that when the matter comes to the adjudicating authority, he has to act in obedience to the provisions of the statute, in conformity with the prescriptions under S.3(3). As pointed out by the learned Judges, in both Nizar (1999(1) KLT 709) and Rasiya, (2002 (2) KLT 825) 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 criterior while the enquiry is made under S.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 too only in he matter of fixation of a fair provision. Like wise, we hold that a remarriage of divorced woman will not confer a course of action for the former husband for a direction for re-gurgling 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.
9. Further in paragraph 11 it has been observed thus: Crl.M.C.No.584 of 2008 : 5:
"10. The only fact to be considered by the Magistrate when the liability of the former husband to make reasonable and fair provision to the divorced wife is established, is the fixation of quantum as contemplated under S.3(3) of the Act. Of course, if the wife get remarried during the pendency of the petition, that fact also is a factor to be considered by the Magistrate keeping in view the object and reasons in enacting the provisions of the Muslim Women (Protection of Rights on Divorce) Act."
10. This principle was followed in the subsequent decision reported in Aboobacker Vs.Rahiyanath (2008(3) KLT 482). It was also mentioned in the decision that re-marriage of a claimant can have very little effect on her pending claim. The actual date of remarriage is not a relevant fact to be reckoned for computing the amount payable under Section 3(i)(a) of the Act. So there is no merit in the submission made by the learned counsel for the petitioner that since the 1st respondent had remarried, she is no entitled to get any amount, has no substance and it has no impact as well.
11. Considering the facts and status of parties and also the income of the petitioner at the time when the application was filed and it was also an admitted fact that he was getting an income not less that Rs.20,000/- per month, the courts below were perfectly justified in fixing the quantum of maintenance at the rate of Rs.3,000/- per month during the period of 'iddath' and Crl.M.C.No.584 of 2008 : 6: considering the fact of remarriage, the quantum of maintenance per month for the purpose of fixing the fair and reasonable provision has been reduced Rs.1,500/- per month and rightly taken 5 years as the multiplier for the purpose of capitalizing the amount and rightly awarded Rs.90,000/- under that head.
I don't find any reason to interfere with the quantum of maintenance awarded during the period of 'iddath' and also as fair and reasonable provision under the Act to the 1st respondent as it is just and proper. The petition lacks bonafides and the same is liable to be dismissed.
In the result, the petition is dismissed.
K.RAMAKRISHNAN Judge ab