Madambath Pathumma v. Ali Haji

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 20TH FEBRUARY, 2008 / 1ST PHALGUNA, 1929 Crl.Rev.Pet.No. 273 of 2000 (A) -----------------------------------(MC.NO.111/1993 of JUDL. FIRST CLASS MAGISTRATE COURT, TIRUR .................... REVN. PETITIONER/PETITIONER: -----------------------MADAMBATH PATHUMMA, D/O.AYAMUTTY, MELMURI AMSOM, P.O.KADAMPUZHA. BY ADV. SRI.M.A.MANHU SRI.M.A.FAYAZ RESPONDENT: ----------------ALI HAJI, S/O.MADAMBATH KADER, MELMURI AMSOM, KARETHODE DESOM, TIRUR TALUK. BY ADV. SRI.A.A.ABUL HASSAN SMT.S.SALINI BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **--------------------------------------------Crl.R.P.No. 273 of 2000 --------------------------------------------Dated this the 20[th] day of February, 2008** ## **O R D E R** Aggrieved by an order dated 14.2.2000 of the Judicial First Class Magistrate Court, Tirur in M.C.No. 111 of 1993, filed under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, (hereinafter referred to as 'the Act'), the revision petitioner herein (the petitioner in the M.C.) preferred this revision petition before this Court. The petitioner preferred the above M.C. before the court below claiming a total sum of Rs.1,48,000/- under various heads on the allegation that the respondent had pronounced talaq by which the petitioner has been divorced and therefore, she is entitled to get maintenance under various heads. The court below, after considering the facts and circumstances involved in the case, as per the impugned order, dismissed the claim petition. The above order is being challenged in this revision petition. 2. It is the case of the petitioner that the parties are belonging to Islam religion and the respondent ## **Crl.R.P. NO.273 of 2000** ## **:-2-:** married the petitioner about 15 years back in accordance with Muslim Shariat Law and it is averred that in their wedlock, a child was born to her. It is the further case of the petitioner that on 2.10.1993, the respondent divorced the petitioner by pronouncing talaq. It is also averred that at the time of declaring talaq, nothing was paid for her maintenance during the iddat period and for her future maintenance. It is also the case of the petitioner that while they were living as man and wife, the respondent appropriated the gold ornaments belonging to the petitioner and therefore, she is entitled to get a sum of Rs.50,000/-. It is also stated that the respondent had obtained a sum of Rs.75,000/from the brother of the petitioner for getting Visa. The petitioner further claimed a sum of Rs.3000/- as maintenance during the period and another sum of Rs.20,000/- as future maintenance. Thus in the petition, she had claimed for a total sum of Rs.1,48,000/-. ## **Crl.R.P. NO.273 of 2000** ## **:-3-:** 3. Countenancing the contentions and claim raised in the petition, the respondent had filed a counter statement whereby he admitted the marriage between the petitioner and the respondent and also the birth of the child. The respondent has vehemently denied the allegation that he had appropriated the gold ornaments and also denied the allegation that he had received Rs.75,000/- from the brother of the petitioner. Apart from the above denial, in an unequivocal word, the respondent had denied the allegation of the petitioner that he had divorced the petitioner on 2.10.1993. In his counter statement, he had stated that due to some reason, he pronounced the talaq once, but subsequently the same was revoked and such revocation has already been reported to the concerned Mosque. Therefore, according to the respondent, the petitioner is still his wife and therefore, she is not entitled to get any amount from the respondent towards maintenance. Hence, he prayed for dismissal of the petition. **Crl.R.P. NO.273 of 2000** ## **:-4-:** 4. Based upon the claim and counter claim, the trial has taken place and during which on the side of the petitioner, Pws.1 and 2 were examined and marked Ext.P1 as documentary evidence. From the side of the respondent, CPWs. 1 to 4 were examined. On the basis of the claim and counter claim and the materials on record, the court below framed an issue as to whether the petitioner is entitled to get any amounts from the respondent as a divorced wife. 5. After appreciation of evidence and materials on record, the court below came into a conclusion that the petitioner has failed to establish that she is divorced in accordance with the Muslim law and therefore held that the petitioner cannot be treated as a divorced woman and found that the petitioner is not entitled to get any maintenance under Section 3 of the above Act. The above finding is challenged in this Crl. Revision Petition on various grounds. ## **Crl.R.P. NO.273 of 2000** ## **:-5-:** 6. I have heard Sri.Manhu, learned counsel appearing for the petitioner as well as Mr.Abul Hassan, learned counsel appearing for the respondent. It is an admitted fact and there is no controversy that the parties are belonging to Islam religion and the marriage between the petitioner as well as the respondent has taken place in accordance with the Muslim Shariat law. In this wed lock, a child was born to the petitioner. The case of the petitioner is that the respondent divorced the petitioner by pronouncing the talaq on 2.10.1993 and therefore, from the above date onwards, she is a divorced woman and she is entitled to get maintenance under various heads as claimed in the petition which moved under Section 3 of the Act. In support of the above claim, the petitioner has adduced evidence by herself examining as PW1 and another witness PW2. The petitioner during her examination stated that the respondent divorced her by pronouncing talaq thrice and it is irrevocable and therefore, she is a ## **Crl.R.P. NO.273 of 2000** ## **:-6-:** divorced wife and she is entitled to get maintenance and other amounts as claimed. On the side of the petitioner, one more witness was examined as PW2 who also supported the case of the petitioner, in the light of what she had deposed before the court below. 7. The respondent, as stated in the foregone paragraph, took a stand that he had not divorced his wife- the petitioner and he had admitted that he pronounced the talaq only once and he did not pronounce any subsequent talaq. Therefore, according to the respondent, the pronouncement of talaq once is not sufficient to constitute a legal or religious divorce. Since the respondent took such a stand, the court below has rightly formed an issue as to whether the respondent divorced the petitioner and whether the marriage between the petitioner and the respondent is still existing. 8. The stand taken by the respondent is that he had not divorced his wife, but he had admitted that he **Crl.R.P. NO.273 of 2000** ## **:-7-:** pronounced the talaq once and simply because talaq was pronounced once, the divorce proceedings would not be completed unless two more talaqs are pronounced with sufficient gaps and that too in the presence of witnesses. It is the further case of the respondent that though he had pronounced the talaq once, he had intimated his Mahal revoking the talaq which he had already pronounced once. In order to substantiate the above averments and contentions, from the side of the respondent, CPWs.2 to 4 were examined. Among them, CPW3 is a Muslim Scholar. When CPW3 was examined, he had deposed that he deals with this type of matters and this matter was also referred to him so as to ascertain whether the respondent made an irrevocable talaq. He had deposed before the court that after conducting the enquiry, he was of the opinion that the respondent had pronounced the talaq only once and it was a revocable one. So, according to CPW-3, there was no divorce at all. The above evidence of CPW3 is ## **Crl.R.P. NO.273 of 2000** ## **:-8-:** further corroborated by the evidence of CPW4 who is the President of the Mahal to which the parties are belonging. CPW4 deposed before the court that the divorce between the petitioner and the respondent was informed to the Mahal and the information was passed by the father of the petitioner. It is also stated by CPW4 that the respondent informed the Mahal that the talaq was revoked and the information was communicated in writing. It is also stated that the said letter was read over to the father of the petitioner. CPW4 also stated that the dispute was with regard to the question as to whether the pronouncement of talaq is once or thrice and to resolve the dispute, CPW3 was approached and he took evidence. CPW4 further stated that CPW3 had held that the talaq was not pronounced thrice and it was pronounced only once which was a revocable one. It is also stated by CPW4 that a letter was given to that effect by CPW3. The court below has rightly pointed out while appreciating the evidence of CPW3 and CPW4 that they ## **Crl.R.P. NO.273 of 2000** ## **:-9-:** are independent witnesses and they have no animosity towards the petitioner and no reason to depose against her. Thus, correctly appreciating the evidence of CPWs.3 and 4, the trial court came into a conclusion that there was no divorce in accordance with the Muslim law. 9. The learned counsel Sri.Manhu appearing for the petitioner though challenged the above finding of the court below, nothing was brought out to my notice to take a different stand. The evidence of CPWs.3 and 4 are sufficient to hold that there is no divorce as claimed by the petitioner. Supporting the finding of the court below, the learned counsel appearing for the respondent invited my attention to a decision of this Court reported in **Ummer Farooque** v. **Naseema** (2005(4) KLT 565). In the above decision, this Court had held that to be a valid talaq , it should be for a reasonable cause and be preceded by attempts at reconciliation between the husband and wife by two arbiters- one from the wife's family and the other from the husband's side and if the ## **Crl.R.P. NO.273 of 2000** ## **:-10-:** attempts fail, talaq may be effected. This Court came into such a conclusion after referring to several decisions of the Apex Court as well as various High Courts. The facts and circumstances in the case when examined in the light of the above decision show that the respondent herein had not pronounced talaq thrice to complete the divorce in terms of the Shariat law. Therefore, the petitioner is not a divorcee so as to enable her to demand maintenance under Section 3 of the Act. Thus, the order under challenge passed by the court below is not liable to be interfered on the ground of impropriety, illegality or incorrectness. In the result, the Criminal Revision Petition is devoid of merits and the same is dismissed accordingly. **V.K.Mohanan, Judge** Mbs/ ## **Crl.R.P. NO.273 of 2000** ## **:-11-:** **V.K.MOHANAN, J.** -------------------------------------------- Crl.R.P.NO. 273 OF 2000 -------------------------------------------- **O R D E R** DATED:20.2.2008 ## **Crl.R.P. NO.273 of 2000** **:-12-:**