Ibrahim Kutty v. Jameela

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** # **MONDAY, THE 6TH DAY OF AUGUST 2012/15TH SRAVANA 1934** **Crl.Rev.Pet.No. 974 of 2007 ( )** **------------------------------CRRP.42/2004 of ADDITIONAL DISTRICT COURT (ADHOC), MANJERI MC.102/2002 of J.M.C. - I, PONNANI** ## **REVISION PETITIONER/RESPONDENT/COUNTER PETITIONER.:** **-----------------------------------------------------** **IBRAHIM KUTTY, AGED 43 YEARS, S/O.MAYEM MUSLIYARAKATH VEETTIL UMMER, VELIYAMCODE PONNANI,PONNANI TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.RAJESH SIVARAMANKUTTY** ## **RESPONDENTS/RESPONDENTS/PETITIONER AND STATE.:** **-------------------------------------** **1. JAMEELA, AGED 41 YEARS, D/O.THALAKKAD KUNHUMOOSA, MARECHERI, PONNANI TALUK MALAPPURAM DISTRICT.** **2. THE STATE OF KERALA, REPRESENTED BY THE** - **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SRI.T.K.MARTHANDAN UNNITHAN GOVT.PLEADER, SMT.S.HYMA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-08-2012, ALONG WITH CRL.M.C.Nos.566 & 3222/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.S.GOPINATHAN, J. -----------------------------Crl.R.P. No.974 OF 2007 & Crl.M.C.Nos.566 OF 2007 & 3222 OF 2006 -------------------------------Dated this the 6[th] day of August, 2012** ## **C O M M O N O R D E R ~~~~~~~** All these petitions are filed against a common order dated 18.7.2006 in Crl.R.P.No.42/2004 and 56/2004 on the file of the Additional Sessions Judge (Adhoc) Manjeri. The petitioner, Ibrahimkutty, in Crl.R.P.No.974/2007 and Crl.M.C.No.566/2007 is the former husband of the 1[st] respondent, Jameela, who is the petitioner in Crl.M.C.No.3222/2006. The 1[st] respondent therein is the petitioner in the other two petitions. Bone of contention is the amount payable under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act to Jameela on her divorce. 2. The brief facts leading to the petitions are that Jameela was married by Ibrahimkutty on 2.12.1984 and was divorced on 21.5.2001. Ibrahimkutty was employed abroad and he married Jameela after divorcing his first wife. Jameela would contend that at the time of marriage the mehar fixed was 6½ sovereigns of gold. Ibrahimkutty had taken away 75 sovereigns Crl.R.P.No.974/2007 etc. 2 of gold ornaments and a sum of rupees one lakh given to Jameela at the time of marriage. At the time when Jameela was divorced, Ibrahimkutty didn't pay the deferred mehar. Gold ornaments and rupees one lakh given by her father were also not given back. No amount was paid for her maintenance during iddath period or any amount towards the reasonable and fair provision. With that plea, Jameela filed M.C.No.102/2002 before the Munsiff-Magistrate, Ponnani. In total, she had claimed a sum of rupees eight lakhs. 3. The trial court, after due enquiry, rejected the claim for value of the mehar and gold ornaments. But awarded a sum of rupees nine thousand towards maintenance during iddath period and a sum of Rs.1,80,000/- as reasonable and fair provision. The quantum was determined on calculation that Rs.3,000/- would be a reasonable amount for the maintenance of Jameela. 4. Aggrieved by the order awarding maintenance and reasonable and fair provision, Ibrahimkutty preferred Crl.R.P.No.974/2007 etc. 3 Crl.R.P.No.56/2004. Aggrieved by the order rejecting claim for gold and cash as well as the inadequacy of the amount awarded, Jameela preferred Crl.R.P.No.42/2004. Both the petitions were disposed by the common order. The revisional court declined to interfere with the order of maintenance as well as the order for reasonable and fair provision. But it was further found that the mehar fixed at the time of marriage was 6½ sovereigns, out of which only one sovereign was given at the time of marriage. Therefore, towards the value of the mehar amounting to 5 ½ sovereigns, Jameela is found entitled to a further sum of Rs.5,500/-. It was further found that a property owned by Jameela was sold as per Ext.P5 for a consideration of Rs.40,000/-. Atleast 50% of the same would have been taken by Ibrahimkutty. Therefore, the revisional court also ordered to pay another sum of Rs.20,000/-. To put it shortly, the revisional court found that the amount payable to Jameela is to be enhanced by Rs.25,500/-. Consequently, R.P.No.42/2004 was allowed in part. R.P.No.56/2004 was dismissed. 4 Crl.R.P.No.974/2007 etc. 5. Assailing the order allowing Crl.R.P.No.42/2004, Ibrahimkutty filed Crl.R.P.No.974/2007. Crl.M.C.No.566/2007 was also filed by Ibrahimkutty, assailing the order dismissing Crl.R.P.No.56/2004. Assailing the common order to the extent to which R.P.No.42/2004 was disallowed, Jameela had preferred Crl.M.C.No.3222/2006. 6. I have heard Adv. Smt.K.Anila, the learned counsel appearing for Ibrahimkutty and Sri.T.K.M.Unnithan, the learned counsel appearing for Jameela and perused the order of the courts below. 7. In determining the quantum of maintenance and reasonable and fair provision, the revisional court followed the decision of this Court reported in Ahamad v. Ayisha [1990(1) KLT 172]. Going by the above precedent, I notice that in that case the maintenance amount was determined at the rate of Rs.150/per month after taking into account of the income of the former husband at Rs.450/- per month. It was capitalized for 60 months. According to the learned counsel for Jameela, if the Crl.R.P.No.974/2007 etc. 5 method of calculation adopted in Ahamad's case is applied to the case on hand, Jameela should have been awarded double the amount towards the maintenance for the iddath period and reasonable and fair provision; because, the income of Ibrahimkutty as on the date was determined at Rs.20,000/including the property income of Rs.10,000/- per month and therefore maintenance shou ld have been granted at the rate of Rs.6,000/- per month. Going by the order of the revisional court, it is seen that Ibrahimkutty was employed abroad for a pretty long time. His father was also employed abroad. He has got a palacious house having six bed rooms. In addition to that he has got a coconut garden measuring 2 acres and a shopping complex for which he had been paying an annual tax of more than Rs.20,000/-. Ibrahimkutty was well placed. However, regarding the income from building and property there is no reliable evidence. Only guess work is possible. It is not disputed that while determining the quantum for maintenance and reasonable and fair provision, the status of the parties as well as the income of the husband is to be looked into. The future prospects for remarriage of the divorced wife is also to be Crl.R.P.No.974/2007 etc. 6 looked into. Uncertainties in life also cannot be ignored. According to the learned counsel for Jameela, she was divorced at the age of 37 and for the last 11 years she was not remarried. Therefore, according to the learned counsel, a larger multiplier should also have been taken by the revisional court. On the other hand, the learned counsel for Ibrahimkutty would submit that he now lost employment abroad and is now working as a coolie and that the shopping complexes were already disposed. That statement is denied by the learned counsel for Jameela. However, there is no material on record to come to a conclusion that Ibrahimkutty lost his employment abroad or that he had disposed of any of the items of property. Adding to that the status of the parties as on the date of cause of action is relevant. In the above circumstance, I am not inclined to accept the argument advanced by Adv.Smt.K.Anila. However, I find no reason to have a multiplier other than the one taen in Ahamad's case (supra). 8. After carefully going through the common order of the revisional court, though it is seen that in favour of Ibrahimkutty, a wide margin is given, I find no reason to interfere with the finding of the revisional court regarding the value of the Crl.R.P.No.974/2007 etc. 7 property and the value of the mehar. At the same time, I find that the revisional court went wrong in determining the maintenance amount at Rs.3,000/- per month and adopting a multiplier of that amount to determine the reasonable and fair provision. It is pertinent to note that after giving a very wide margin in favour of Ibrahimkutty, the revisional court had determined the monthly income of Ibrahimkutty at Rs.20,000/-. Considering the income of Ibrahimkutty, I find that the amount awarded towards maintenance and reasonable and fair provision is not adequate. Therefore to secure the ends of justice interference is warranted. Taking into account of the income of Ibrahimkutty and that till date the amount ordered by the courts below was not paid and Jameela is not remarried, I find that the maintenance to be paid to Jameela during the iddath period can be determined at Rs.4,000/- and that amount can be multiplied for a period of 60 months. By doing so, I find that Jameela would be entitled to a further sum of Rs. 63,000/(3,000+60,000) in addition to the amount awarded by the revisional court. The petitions are to be disposed of accordingly. Crl.R.P.No.974/2007 etc. 8 9. In the result, Crl.R.P.974/2007 and Crl.M.C.566/2007 are found devoid of merits. Accordingly, both petitions are dismissed. Crl.M.C.3222/2006 is allowed in part. The 1[st] respondent therein is ordered to pay a further sum of Rs.3,000/- towards maintenance during iddath period and an additional sum of Rs.60,000/- towards reasonable and fair provision to the petitioner. The 1[st] respondent is directed to pay the amount within two months. There will be no order as to costs. ## **(P.S.GOPINATHAN, JUDGE)** ## **ps/7/8**