Gulam Abdul Nizar vs Maharunissa P.M.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941** ## **Crl.MC.No.8187 OF 2019(C)** **AGAINST THE ORDER IN CMP NO.1183/2019 IN MC 4/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KASARAGOD** ## **PETITIONER/PETITIONER/RESPONDENT:** **GULAM ABDUL NIZAR AGED 41 YEARS S/O.GULAM MOIDEEN, 'FATHIMA MANZIL', PADAKODI HOUSE, KULUR VILLAGE, MANGALORE, D.K.DISTRICT, KARNATAKA STATE.** **BY ADVS. SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN** ## **RESPONDENT/RESPONDENT/PETITIONER:** **MAHARUNISSA. P.M.,** **D/O.POONA MUHAMMED HAJI, RESIDING AT CHISTHYA MANZIL, PERINAGADY, MANGALPADY, P.O.UPPALA VILLAGE-671322, KASARAGOD TALUK, KASARAGOD DISTRICT.** **R1 BY ADV. SRI.P.K.MUHAMMED R1 BY ADV. SRI.K.M.GEORGE** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.8187/2019 2 ## **(CR)** ## **ALEXANDER THOMAS, J.** ------------------------------------------- Crl.M.C.No.8187 of 2019 ---------------------------------------------Dated this the 17[th] day of December, 2019 ## **ORDER** The petitioner herein is the respondent in Annexure-A1 M.C.No.4/2018 on the file of the Judicial First Class Magistrate Court-II, (Additional Munsiff) Kasaragod, filed by the respondent herein under the provisions of Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986. The case projected in the said M.C. filed by the respondent herein is that the marriage between the respondent herein and the petitioner herein was dissolved on 20.9.2017 by the decree of Family Court, Kasaragod. The petitioner herein has contended that the respondent herein is working as a Book Selling Girl in the AJI School, Uppala and she is getting very good salary from that source of employment and that ascertaining the said factual aspect relating to her employment is highly relevant for taking a just decision in Annexure-A1 proceedings. The pleadings in that regard have been taken in paragraph No.4 of Annexure-AII counter statement filed by the petitioner herein in M.C.No.4/2018. The petitioner would aver that the respondent herein is working in the AJI School,Uppala as Book Selling Girl earning fabulous salary and the respondent herein has suppressed the said factual aspects etc. On the basis of said pleadings in Annexure-AII counter statement, Crl.M.C.No.8187/2019 3 the petitioner has filed Annexure-III application along with supporting affidavit as per C.M.P.No.1183/2019 in M.C.No.4/2018, wherein it is prayed that the learned Magistrate may call for the records from the AJI Senior Secondary School, Uppala to ascertain the salary details paid to the respondent herein as per the acquittance roll of that school. The respondent herein has resisted the said plea made in Annexure-AIII application by filing Anneuxre-AIV objection/counter thereto. After hearing both sides, the learned Magistrate has now passed the impugned Annxure-AV order dated 17.8.2019 rejecting the said plea in C.M.P.No.1183/2019 in M.C.No.4/2018. The Family Court has taken the view that by the rulings of this Court as in _**Hussain Punathil**_ v. _**Fathima and another**_ [ILR 2013 Ker.975] it is now well settled that it is not the requirement of Section 3 of the above said Act that the divorced wife must be unable to maintain herself before she can claim amounts under Section 3 of the Act and that therefore, the documents sought to be call for as per Annexure-AIII application is not necessary for the just and fair disposal of the above said M.C. It is this order at Annexure-AV is under challenge in this Criminal Miscellaneous Case filed under Section 482 of Cr.P.C. 2. Heard Sri. M. Sasindran, learned counsel appearing for the petitioner herein/respondent in M.C. and Sri. P.K. Muhammed, learned counsel for the respondent herein/the petitioner in M.C. Both sides have reiterated their respective submissions. The learned counsel for the petitioner herein would urge that the above said documents called for are Crl.M.C.No.8187/2019 4 highly necessary and relevant for the just and fair decision of the above said M.C. filed by the respondent herein. Per contra, the learned counsel for the respondent herein would urge that in view of the various settled rulings of this Court, the impugned order of the learned Magistrate does not warrant any interdiction. It has been held by this Court as in **T.K. Abdulla** v. _**Subaida and others**_ [2006(3) KLT 699], paragraph No.11 thereof that it has clearly held by this Court in earlier decisions as the one reported in _**Avanacherry H.W. Co-operative Society**_ v. _**Chellamma**_ [1990 (1) KLT 192] that it is not the requirement under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 that the divorced wife has been unable to maintain herself before she can claim the amounts under Section 3 thereof. It is further observed therein that this Court is in total agreement with the law so laid down therein and the incidental observations made by the Division Bench in _**Kunhammed Haji**_ v. _**Amina**_ [1995 (1) KLT 765], cannot alter the said conclusion which directly flows from the languages of Section 3. The Division Bench in _**Kunhammed's**_ case (supra) has not overruled the dictum laid down in the decision reported in _**Avanacherry H.W. Cooperative Society**_ v. _**Chellamma**_ [1990(1) KLT 192]. It has been observed by this Court in paragraph No.11 of _**Abdulla's case**_ (supra) that the Legislature was conscious of the rights of the wives professing other religions under Section 125 of Cr.P.C., and when it enacted Section 3 of the 1986 Act, the Legislature did not choose to weave into Section 3 of the 1986 Act the requirement that the divorced wife must be unable Crl.M.C.No.8187/2019 5 to maintain herself. Accordingly, this Court has held in _**Abdulla's case (supra)**_ that even a millionaire wife will be entitled to claim amounts under Section 3 of the Act from her millionaire husband and the fact that she can maintain herself is no bar against any claim under Section 3 of the 1986 Act. Hence, it was held therein that the fact that the claimant divorced Muslim wife is able to maintain herself and is not unable to maintain herself can have no bearing on her right under Section 3(1) (a), though it may have relevance while ascertaining the quantum. In paragraph 12 of the said decision, it has been held that a husband is expected to make reasonable and fair provision and maintenance under Section 3(1)(b) of the 1986 Act. The relative affluence of the husband and wife will be relevant while considering the fairness and reasonableness of the provisions to be made. It will be pertinent to refer paragraphs 11 and 12 of the decision of this Court in _**Abdulla's case**_ (supra), which read as follows:- _“11. The precise question was considered by this Court in the decision in 1990 (1) KLT 192. Jagannatha Raju in that decision has clearly held that it is not the requirement of S.3 of the Act that the divorced wife must be unable to maintain herself before she can claim amounts under S.3. I am in total agreement with the law so laid down and the incidental observations made by the Division Bench in Kunhammed Haji's case (supra), cannot alter the said conclusion which flows directly from the language of S.3. The Division Bench has not overruled the dictum in 1990 (1) KLT 192. The Legislature conscious of the rights of the wives professing other religions under S.125 Cr.P.C., when it enacted S.3 did not choose to weave into S.3 the requirement that the divorced wife must be unable to maintain herself. It is not necessary to advert to certain precedents by other High Courts in as much as from the language of S.3 and from the precedent which has remained from 1990 in Ahammed v. Aysha (supra), the position is well laid down and need not be doubted. I may clarify that even a millionaire wife will be entitled to claim amounts under S.3 of the Act from her billionaire husband and_ Crl.M.C.No.8187/2019 6 _the fact that she can maintain herself is no bar against any claim under S.3. In these circumstances the fact that the claimant divorced Muslim wife is able to maintain herself and is not unable to maintain herself can have no bearing on her right under S.3(1) (a) though it may have relevance hwile ascertaining the quantum._ _12. A husband is expected to make reasonable and fair provision and maintenance under S.3 (1)(b). The relative affluence of the husband and wife will be relevant while considering the fairness and reasonableness of the provision to be made. The husband was getting amounts exceeding Rs.50,000/- p.m. The wife was getting only an amount of Rs.10,000/-. It is reasonable to assume that when they lived in harmony they must have been used to a standard of life in between. Therefore, while considering the quantum of reasonable and fair provision and maintenance to be made by the husband the relative, qualitatively higher degree of affluence enjoyed by the husband vis-a-vis his divorced wife must certainly be taken into account.”_ 3. This Court has held in the decision in _**Hussain Punathil**_ v. _**Fathima and another**_ [2013 (1) KLT 852]=[ILR 2013 Ker.975], in paragraph No.9 thereof that it is the status of the parties as on the date of the divorce that has to be considered for ordering fair and reasonable provision to the divorced wife as per Section 3 of the above said 1986 Act. This Court has also reiterated therein about the earlier view rendered by this Court in _**Abdulla's case (supra),**_ wherein it has been held that in order to claim the reliefs under Section 3 of the Act, it is not necessary that the divorced wife must be unable to maintain herself before she claims amounts under Section 3 of the Act. In paragraph No.14 of the _**Hussain Punathil's case (supra)**_ this Court has also held that the factor to be considered for fixing the quantum of maintenance is the standard of living of the divorced wife, which she is expected to live as the wife of the petitioner therein, even after divorce and she is expected to live a decent life and it has to be taken note for the purpose of fixing the amount. It Crl.M.C.No.8187/2019 7 ## will be relevant to refer paragraphs 9 and 11 of the above said decision of ## this Court in _**Hussain Punathil's case**_ (supra), which read as follows: _“9. It is an admitted fact that the petitioner herein married the respondent herein and thereafter, they lived together as husband and wife. After some time, the relationship strained and he pronounced talaq and divorced her. So, the fact that the status of the respondent a a divorced wife, entitles her to file an application under Section 3 of the Act, is not in dispute. The learned counsel for the petitioner submitted that he has now retired and is unable to raise the amount. That is not a criterion to be considered at this stage, because, it is the status of the parties as on the date of divorce that has to be considered for ordering fair and reasonable provision to the divorced wife. In the decision reported in Abdulla v. Subaida (2006 (3) KLT 699): 2006 ICO 5119, it has been held that in order to claim the relief under Section 3 of the Act, it is not necessary that the divorced wife must be unable to maintain herself before she claims the amount under Section 3 of he Act. 10. xxx xxx xxx 11. In the decision reported in Aboobacker v. Rahiyanath (2008(3) KLT 482), this court has enumerated the conditions to be considered for fixing the quantum of reasonable and fair provision to be paid to a divorced wife 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 Crl.MC No.210/08 7 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 obligation u/S.3(1)(a) of the Act gives rise to the right of the divorced wife to resort to the provisions of the Act;_ _(iii)(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)(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 exist and not on the basis of the norms and morals that were available in medieval Arabia ;_ _(v)(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 husband, greater the amount to be paid._ _* The emotional trauma suffered by the victim of rupture_ _* 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 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_ Crl.M.C.No.8187/2019 8 _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-a-vis 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 woman 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.”_ Therefore, in view of the above said decision, it is by now well settled that it is not the requirement of Section 3 of 1986 that the divorced wife must be unable to maintain herself for considering her right under Section 3(1) (a) of the said Act, though it may have relevance for ascertaining the quantum. Further, it has been held by this Court in _**Hussain Punathil's case (supra)**_ that it is the status of the parties as on the date of divorce that has to be considered for ordering fair and reasonable provision to the divorced wife in accordance with Section 3 of the above said Act. Therefore, the Court below is right in holding that the fact as to whether the divorce wife in this case was unable to look after herself or whether she is financially now capable to look after herself is not relevant for the determination of the issues in Section 3 of the above said Act. But, it has also been held that the said aspects will have relevance while ascertaining the quantum and equally it has been held that it is the status of the parties as on the date of the divorce that has to be considered for ordering fair and reasonable provision to the divorced wife. Therefore, Crl.M.C.No.8187/2019 9 the contention of the petitioner herein about the alleged financial capability of the respondent herein may not be very relevant for determining an entitlement, but the status of the parties as on the date of the divorce will be relevant for ordering the fair and reasonable provision to the divorced wife. In that regard the financial status of the wife as on the date of divorce, by itself cannot disentitle her for the claims under Section 3 of the Act, but certainly it may be relevant to determine the quantum of the amount concerned. But the crucial fact of the matter is as to the status of the parties as on the date of the divorce that has to be considered for determining the fair and reasonable provision under Section 3 of the Act. To a specific query raised by this Court as to whether the petitioner has got a case that the respondent herein was employed in the school concerned as on the date of divorce of the parties concerned (20.9.2017), the petitioner has not been able to answer in the affirmative, even though he was given sufficient time to get instructions on that crucial factual aspect. Therefore, the present attempt of the petitioner herein to call for the documents from the School, may not a have any relevance for the just and fair decision of the case, as the petitioner does not have any specific case that the respondent herein was employed in the school concerned as a sales person as on the date of the divorce of the parties concerned (20.9.2017). So, the ultimate conclusion made by the learned Magistrate cannot be faulted with and any interdiction of the said order by ordering a remit is not necessary for the simple reason that the petitioner does not have a case that the Crl.M.C.No.8187/2019 10 respondent herein was employed in the school as on the date of the divorce of the parties. The learned counsel for the respondent would assert that the respondent herein has never been employed in the said school as a Book Selling Girl etc. In the light of these aspects, the impugned order does not deserve any interdiction and accordingly, the criminal miscellaneous case will stand dismissed. sd/- ## **ALEXANDER THOMAS, JUDGE.** acd Crl.M.C.No.8187/2019 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE AI** **A TRUE COPY OF THE M.C.NO.4/2018 FILED BY THE RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-II, KASARAGOD.** **ANNEXURE AII** **A TRUE COPY OF THE COUNTER FILED BY THE PETITIONER IN M.C.NO.4/2018 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE-II, KASARAGOD.** ## **ANNEXURE AIII** **A TRUE COPY OF THE CMP.NO.1183/2019 IN M.C.NO.4/2018 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE-II, KASARAGOD FILED BY THE PETITIONER.** ## **ANNEXURE AIV** **TRUE COPY OF THE COUNTER FILED IN CMP.NO.1183/2019 IN M.C.NO.4/2018 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE-II, KASARGOD.** ## **ANNEXURE AV** **A TRUE COPY OF THE ORDER DATED 17.8.2019 IN CMP.NO.1183/2019 IN M.C.NO.4/2018 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE-II, KASARAGOD.**