Mohammed Shaji v. State of Kerala and Ramseena

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** **Crl.MC.No. 7784 of 2018** **AGAINST THE ORDER/JUDGMENT IN CRL.RP. NO.10/2013 OF THE DISTRICT COURT & SESSIONS COURT, MANJERI DATED 05-07-2016** **AGAINST THE ORDER/JUDGMENT IN MC 361/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS, TIRUR DATED 21-02-2013** ## **PETITIONER/REVISION PETITIONER/ACCUSED:** **MOHAMMED SHAJI, AGED 47 YEARS, S/O MOIDEENKUTTY, CHUNGATH HOUSE, KUMARANALLUR, ANGADI POST, PALAKKAD DISTRICT.** **BY PARTY IN PERSON** ## **RESPONDENTS/STATE & RESPONDENT:** **1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI- 682 031. 2 RAMSEENA, D/O. ABDULLAKUTTY, MANGULANGARA HOUSE, MARAVANCHERI, THRIKKANAPURAM, AYINDALAM POST, PONNANI, MALAPPURAM DISTRICT.** **BY ADVS. SRI.C.V.MANUVILSAN SMT.K.VIDYA SRI.VINODE V. LUKA** ## **By SR. PUBLIC PROSECUTOR SRI.RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC:7784/2018 2 ## **ORDER** This petition under Section 482 of the Cr.P.C. is filed by the petitioner assailing the concurrent findings of the courts below ordering him to pay a sum of Rs.9,000/- towards maintenance during the _Iddat_ period and a sum of Rs.3,60,000/- towards reasonable and fair provision for future maintenance under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. 2. The basic facts are undisputed. The marriage between the petitioner and the 2[nd] respondent took place on 7.1.2007 and they have a minor child, who was aged 2½ years in the year 2010 when the petition was filed. According to the 2[nd] respondent, the petitioner herein was working abroad at the time of marriage. Both of them hailed from financially well off families. When the petitioner started harassing her for dowry, the relationship became strained. He approached the Family Court, Malappuram, which court granted a decree of divorce under the Dissolution of Muslim Marriage Act, 1939. The 2[nd] respondent remained a house wife and she was taking care of the minor child. She initiated proceedings before the Family Court seeking realisation of money and return of gold ornaments, which were allowed in her favour. She also initiated proceedings before the CRL.MC:7784/2018 3 criminal court and a petition seeking maintenance, which were also allowed. The learned Magistrate took the view that the wife was entitled to a sum of Rs.9,000/- towards maintenance during the Iddat period and a sum of Rs.3,60,000/- towards future maintenance. The Court of Session confirmed the order passed by the learned Magistrate by a well considered order. 3. The liability to pay maintenance during the period of Iddat and to make fair and reasonable provisions to the divorced wife cannot be disputed. It is also settled that a wife who has been divorced by her husband under the provisions of the Dissolution of Muslim Marriage Act, 1939 is entitled to reasonable and fair provision under Section 3 of Act 25 of 1986. The only question now arises for consideration is that the quantum of maintenance awarded by the courts below is excessive. 4. It is undisputed that the order passed by the courts below was on the basis of the evidence let in by the parties. The 2[nd] respondent had entered the box and had given evidence as PW1. On her side, Exhibits-P1 to P9 were marked. As the petitioner herein was working abroad, he engaged a Power of Attorney to contest his case before the court below. He concealed his income though it had come CRL.MC:7784/2018 4 out in evidence that he had all along been working abroad. He did not enter the witness box and controvert the assertion of his wife that he was earning in excess of Rs.25,000/- per mensem. There were documents in the form of Exhibits-P2 to P9, which revealed that he had extensive landed properties. The courts below on the basis of the above unassailable materials, came to the conclusion that the financial capacity of the revision petitioner to provide reasonable and fair provision to his wife and minor child cannot be disputed. To compute the quantum of maintenance, the learned Magistrate concluded that the 2[nd] respondent would require a sum of Rs.150/- per day for sustenance on an average and the maintenance for a period of one month was quantified at Rs.3,000/- per mensem. To arrive at the reasonable and fair provision towards future maintenance, the learned Magistrate taking note of the duty of the husband to ensure that his former wife and his only child is well provided for, fixed the amount at Rs.3,60,000/-. 5. The contention of the petitioner, who argued the matter in person, is that he lost his avocation in the Gulf and he is a person without means. I am unable to accept his assertions. The petitioner did not appear before the learned Magistrate and it was his Power of CRL.MC:7784/2018 5 Attorney, who gave evidence on his behalf. What exactly was the salary drawn by the petitioner was a fact specially within his knowledge and burden was solely on him. 6. This Court in **Ali v. Sufaira** (1988 (2) KLT 94) had occasion to elucidate the principles to determine what reasonable and fair provision as defined in Section 3 of the Act and it was held thus: "From this it is clear that the Muslim who believes in God must give a reasonable amount by way of gift or maintenance to the divorced lady. That gift or maintenance is not limited to the period of iddat. It is for her future livelihood because God wishes to see all well. The gift is to depend on the capacity of the husband. The gift, to be paid by the husband at the time of divorce, as commanded by the Quran, is recognised in sub-clause (a) of Clause (1) of S.3 of the Act. This liability is cast upon the husband on account of the past advantage received by him by reason of the relationship with the divorced woman or on account of the past dis-advantage suffered by her by reason of matrimonial consortium. It is in the nature of a compensatory gift or a solatium to sustain the woman for her life after the divorce." 7. In **Aliyar v. Pathu** (1988 (2) KLT 446), a Division Bench of this Court had occasion to consider the scope and ambit of the expression "reasonable and fair provision and maintenance" occurring in Section 3 of the Act, and it was held thus: "Under clause (a) of sub-s.3(1) of the Act, divorced wife is entitled to reasonable and fair provision to be made and maintenance to be paid within the Iddat period. The clause emphasizes that provision is to be made and maintenance is to be paid. Of course CRL.MC:7784/2018 6 provision is to be made to secure livelihood of the wife. That need not be in the shape of money; it could be in the shape of provision by grant of immovable property of other valuable assets or other income yielding property. Provision has to be made within the Iddat period; it has to be fair and reasonable. Provision must certainly be capable of being realised or secured by her. Besides the provision to be made, she is also entitled to be paid maintenance during the period of Iddat. The expressions reasonable and fair provision and maintenance to be made and paid cannot be understood to have been used disjunctively. In the context `and' cannot mean `or'. The two expressions convey different ideas and give rise to two different connotations. The argument is that just as maintenance is to be paid to cover the needs of the divorced woman during the Iddat period, reasonable and fair provision is to be made only for the Iddat period. Relevant part of clause (a) cannot be read as "reasonable and fair provision or maintenance. ## xxxxx ## xxxx xxxx Since the main purpose of the statute is to protect the interests of the divorced Muslim woman, even if there is any ambiguity in the language of the statute, or even if two interpretations are equally possible, that interpretation which is reasonable and would protect the interests of divorced Muslim women has to be adopted by the court. ## xxxxxx xxxxx xxxx Besides paying maintenance to the divorced wife for the Iddat period, former husband has to provide reasonably and fairly for the future needs of the divorced wife, i.e., use of the divorced wife after the period of Iddat period and till her marriage or death." 8. In other words, the mandate of Section 3 is that a divorced Muslim woman should not be left in the lurch. Notwithstanding termination of marriage, it is the duty of the husband to ensure that CRL.MC:7784/2018 7 his former wife is properly provided for. Precedents galore which mandate that this duty of a husband to make provisions for his former wife to lead a life consistent with the standard of life which she is used to must be discharged by the direction for payment of fair and reasonable provision under Section 3. It cannot be an illusory amount. The totality of circumstances will have to be considered by the court in its attempt to answer the question as to what amounts must be fixed in a just and reasonable manner. The courts below have considered the age of the wife, her prospects of re-marriage, the income of the husband, the details of his immovable assets, the age of the minor child, the strata of society to which the parties belong and all other relevant aspects while fixing the amount of maintenance. 9. Now the question is whether the findings of the court below warrant any interference. Inherent jurisdiction under Section 482 of the Cr.P.C. is reserved for the High Court to act in aid of justice. Satisfactory, convincing and exceptional reasons 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 discretion exercised by the CRL.MC:7784/2018 8 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 justice, this Court will not be persuaded to invoke such extraordinary inherent jurisdiction. 10. Having considered all the relevant aspects, I am of the view that the amount arrived at by the learned Magistrate as confirmed by the Court of Session does not warrant any interference in exercise of powers under Section 482 of the Cr.P.C. This Crl.M.C is accordingly dismissed. **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** krj //TRUE COPY// P.A. TO JUDGE