Hussain Punathil v. Fathima and State (Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934** **Crl.MC.No. 210 of 2008 ( ) --------------------------** **AGAINST THE ORDER IN CRRP.44/2006 & 64/2006 of 1ST ADDL.DISTRICT COURT, KOZHIKODE DATED 20-09-2007 AGAINST THE ORDER IN MC.8/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KOYILANDY DATED 09-05-2006** **-----------------------** ## **PETITIONER/RESPONDENT/RESPONDENT::** **----------------------------------** **HUSSAIN PUNATHIL, S/O. C.K. MAMOO, PUNATHIL HOUSE, KAKKULANGARA PARAMBIL, EDAKKAD P.O KOZHIKODE.** **BY ADVS.SRI.P.K.RAMKUMAR SMT.ANITHA MENON** **RESPONDENTS/REVISION PETITIONER 2ND RESPONDENT/PETITIONER & STATE: ------------------------------------------------------------------** **1. FATHIMA, AGED 40 YEARS, D/O. ABDU RAHIMAN, RESIDING AT THALATHOOD VEEDU P.O. POONOOR, UNNIKULAM, KOZHIKODE DISTRICT.** ## **2. STATE OF KERALA,** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY ADV. SRI.THOMAS ANTONY** **R2 BY PUBLIC PROSECUTOR SRI.LIJU V. STEPHEN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VK** **“C.R.”** ## **K.RAMAKRISHNAN, J.** ---------------------------------------------------Criminal MC No.210 of 2008 ---------------------------------------------------Dated this the 8[th] day of February 2013 ## Order This is a petition filed under Section 482 of the Code of Criminal Procedure by the defeated respondent in Criminal RP Nos.44/06 on the file of the First Additional Sessions Judge, Kozhikode. 2. The petition was filed by the divorced wife of the petitioner herein before the Magistrate's Court under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act), claiming an amount of Rs.30,000/- as maintenance during _Iddat_ period, Rs.10 lakhs as fair and reasonable provision for future maintenance and also claiming the value of mahar. It is alleged in the petition that the marriage between the petitioner herein and the respondent was solemnized as per the customary rites on 15.05.1983 and they were living together as husband and wife and three Crl.MC No.210/08 2 children were born to them in the relationship. Thereafter, the petitioner herein divorced her by pronouncing _talaq_ by giving Ext.P1 letter dated 9.3.2005. Thereafter, no maintenance during _Iddat_ period or fair and reasonable provision or value of mahar, had been paid as provided under the Act. So, she filed a petition under the provisions of the Act, claiming the reliefs mentioned above. 3. The respondent appeared and filed a counter affidavit, denying the allegations in the petition and also narrated the circumstances, which led the petitioner herein to divorce the petitioner before the lower court. He also contended that she is having a love affair with some other person and that had led to the divorce. It was also contended that as such, she is not entitled to get any maintenance during _Iddat_ , as she did not observe _Iddat_ or fair provision and the amount claimed is also excessive and he prayed for dismissal of the application. 4. The petitioner in the lower court was examined as PW1 and Ext.P1 was marked from her side. Crl.MC No.210/08 3 The counter petitioner in the lower court, who is the petitioner herein, was examined as CPW1 and Exts.D1 to D14 were marked from his side. 5. After considering the evidence, the learned Magistrate allowed the application in part. The claim for mahar and maintenance during the period of _Iddat_ were rejected and the learned Magistrate ordered the respondent therein, who is the petitioner herein, to pay a sum of Rs.1,50,000/- to the petitioner as reasonable and fair provision for future maintenance of the petitioner in the lower court and also directed to pay the amount within one month from the date of the order. 6. Aggrieved by the rejection of certain claims and also the quantum of amount awarded, the petitioner in the lower court filed Criminal RP No.44/06 and aggrieved by the order directing to pay fair and reasonable provision, the respondent in the lower court, who is the petitioner herein, filed Criminal RP No.64/06 before the Sessions Court, Kozhikode. Both the petitions were heard together Crl.MC No.210/08 4 and disposed of by a common order, by the Additional Sessions Judge, Kozhikode, by which the revision filed by the petitioner herein was dismissed and Criminal RP No.44/06 filed by the divorced wife was allowed in part. The order of the lower court, denying maintenance during _Iddat_ period was set aside and the amount of fair and reasonable provision was enhanced to Rs.2,10,000/-. He was also ordered to pay Rs.10,500/- as maintenance during the _Iddat_ period. That is assailed before this court by filing this petition. 7. Though the petition was filed challenging the order in both the revisions, at the time of hearing, the learned counsel for the petitioner submitted that this petition is confined to the order in Criminal RP No.44/06 alone. The learned counsel for the petitioner also submitted that the revisional court was not justified in enhancing the amount fixed by the lower court and no reasons were given by the revisional court for the same and as such, the order is vitiated. He relied on the decision reported in **Iqbal Bano** Crl.MC No.210/08 5 **v. State of UP** (2007(6) SCC 785) for the said proposition. 8. On the other hand, the learned counsel for the respondent argued that the scope of this court under Section 482 of the Code of Criminal Procedure, is limited and it cannot be treated as an appeal against the order. Further, the Additional Sessions Judge has given reasons for enhancing the amount as well. 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 as 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 Crl.MC No.210/08 6 wife. In the decision reported in _**Abdulla v. Subaida**_ (2006 (3) KLT 699), 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 amounts under Section 3 of the Act. 10. Further, in the decision reported in _**Kunhammed Haji v. Amina**_ (1995(1) KLT 765), it has been held that the former husband of a divorced woman is liable to make reasonable and fair provision for her livelihood, even for post _Iddat_ period, apart from his liability to pay maintenance during the Iddat period. 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 Crl.MC No.210/08 8 - 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 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.” Crl.MC No.210/08 9 12. In the decision reported in _**Khyrunneesa v. Alavi**_ (2001(1) KLT 46), it has been held that the social status, financial capacity and the potential of the couple, at or during the time of divorce is the main aspect to be reckoned in fixing the quantum of fair and reasonable provision under Section 3 of the Act. The very same view has been reiterated in the decision reported in _**Chand Muhammed v. Zeenath**_ (ILR 2011(4) Kerala 798). 13. It is, with the above principles in mind, that the quantum of fair and reasonable provision payable to the divorced wife, has to be fixed. 14. It is an admitted fact that the petitioner was working as a College Lecturer in M.E.S.College, Mannarkkad at that time and Ext.D10 salary certificate produced by him shows that he is getting a gross salary of Rs.20,983/- and a take-home salary of Rs.12,201/- per month. He had no case that he had paid any amount to the respondent after divorce. The factor to be considered 10 Crl.MC No.210/08 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 herein, even after divorce. She is expected to live a decent life and it has to be taken note of for the purpose of fixing the amount. Further, this provision itself has been made to avoid vagrancy of the divorced wife and to lead a reasonable and decent life, even after divorce. So, considering the fact that he was a College Lecturer at the time of divorce, the quantum fixed by the court below as Rs.3,500/- per month and taking 5 as multiplier, in the light of the decisions of this court in **Ahammed v. Aysha** (1990 KHC 41) and **Abdul Saleem v. Fousiya** (ILR 2013(1) Kerala 260) and fixing the quantum as Rs.2,10,000/- as fair and reasonable provision, cannot be said to be unreasonable. Further, in paragraph 13 of the judgment of the revision court, the learned Sessions Judge has considered all these aspects in detail and has given reasons for the enhancement as well. Crl.MC No.210/08 11 15. Further, the Sessions court was also justified in ordering maintenance during the _Iddat_ period as has been observed by this court in the decision reported in **Musthafa v. Fathimakutty** (2006(3) KLT 690) that observation as _Iddat_ period, is not a pre-condition for getting maintenance during _Iddat_ period. It is a liability cast on the husband to pay the sum to the divorced wife. So, it was considering all these aspects that the quantum of fair and reasonable provision was fixed by the court below. The liability to pay the maintenance amount during _Iddat_ period to the respondent is also equally justified and there is no illegality committed by the revisional court in passing the impugned order. 16. In the decision reported in _**Aboobacker v. Rahiyanath**_ (supra), this court has considered the scope of Section 482 of the Code of Criminal Procedure while considering the petitions by the ex-husband of a divorced Crl.MC No.210/08 12 wife against an order passed by the Subordinate Court under Section 3 of the Act, which reads as follows : “It will be apposite in this context to remind this court about the nature, quality and contours of its extraordinary inherent jurisdiction under S.482 Crl.PC. This court must be alert to note that a second revision against the impugned direction at the instance of the petitioner is prescribed under S.397(3) Crl.P.C. That is the only reason why this petition bears the label of S.482 Cr.PC. Inherent jurisdiction under S.482 Cr.PC is reserved for the High Court to act in aid of justice. Satisfactory, convincing and exceptional reason must be shown to exist before such jurisdiction is invoked and exercised. It must be shown that miscarriage of justice would otherwise result. Invocation of such jurisdiction cannot be a matter of course. Such jurisdiction shall not be lightly invoked to interfere with the discretions exercised by the Subordinate Courts or with the findings of fact rendered by such courts. Unless such exercise of discretion and findings of fact are grossly erroneous and perverse and unless such vice leads to miscarriage of Crl.MC No.210/08 13 justice, this court will not be persuaded to invoke such extraordinary inherent jurisdiction.” The question to be considered is, whether any such vice exists in the case on hand. The Additional Sessions Court has exercised the power vested in the Court under Section 397 of the Code of Criminal Procedure and correctly considered the facts and evidence and passed the impugned order, which is just and proper as well. Under such circumstances, it is not necessary for this court to invoke the power under Section 482 of the Code of Criminal Procedure to interfere with that order. With the above observations, the order of the Additional Sessions Judge, is hereby confirmed and the petition is dismissed. ## **K.Ramakrishnan, Judge** sta Crl.MC No.210/08 14 Crl.MC No.210/08 15