Muhammed Rasheed v. Sarafunisa and State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944 CRL.MC NO. 2796 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENTCRRP 15/2011 OF ADDITIONAL DISTRICT COURT, MANJERI / I ADDITIONAL MACT, MANJERI MC 35/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS - ``` ## **`II,PERINTHALMANNA`** ## **`PETITIONER/S:`** ``` MUHAMMED RASHEED S/O. MUHAMMED, MANCHERITHODIKA HOUSE, VEGTIKKATTIRI, VALLUVANGAD.P.O., ERNAKULAM TALUK, MALAPPURAM DISTRICT. ``` ``` BY ADV SRI.K.M.SATHYANATHA MENON ``` ## **`RESPONDENT/S:`** ``` 1SARAFUNISA D/PO. MUHAMMED, MATTUMMATHODI HOUSE, CHOLAKKULAM, MELATTUR.P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-679326. ``` ``` 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,KOCHI-682031. BY ADV SRI.U.K.DEVIDAS ``` ``` PP SRI.K.A.NOUSHAD ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. No.2796/13 -: 2 :- ## **BECHU KURIAN THOMAS, J. =================== Crl.MC No.2796 of 2013** ## **---------------------------------------** _Dated this the 10[th] day of August, 2022_ ## **ORDER** By order dated 02.04.2011 in M.C. No.35 of 2009, the Judicial Magistrate of First Class, Perinthalmanna, directed the petitioner to pay an amount of Rs.7,80,000/- as the fair and reasonable provision to the first respondent under Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as ‘the Act’ for short). The challenge against the said order was dismissed by the Sessions Court by order dated 12.02.2013 in Crl.R.P. No.15 of 2011. Since a second revision petition is not maintainable, petitioner has invoked the jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 to challenge the aforesaid order. 2. The marriage between the petitioner and the first respondent was solemnised on 27.05.2011, and a son was born in the said marriage. Thereafter the marriage fell into troubled waters, and the petitioner divorced his wife on 20.04.2009 by Crl.M.C. No.2796/13 -: 3 :- pronouncing Talaq. Alleging that the gold ornaments and money handed over by the first respondent to the petitioner were misappropriated and that she was subjected to cruelty demanding more dowry, a criminal case as C.C. No.798 of 2018 was filed by the first respondent for offences under Section 498A of the Indian Penal Code, 1860. Another proceeding was initiated as M.C. No.660 of 2018 before the Family Court Malappuram, claiming maintenance under section 125 of the Cr.P.C. Along with the above two cases, the first respondent also filed an application under Section 3 of the Act claiming the value of gold ornaments of Rs.3,30,000/- and Rs.10,00000/- towards fair and reasonable provision for maintenance. 3. In order to prove her claim, the first respondent, examined PW1 to PW4 and marked Exts.P1 to P3, while the petitioner herein examined RW1 to RW3 and marked Ext.D1 4. Learned Magistrate, after considering the evidence adduced, came to the conclusion that the first respondent is not entitled to the gold ornaments or their value. However, it was held that the first respondent was entitled to Rs.7,80,000/towards maintenance. The quantum of maintenance was calculated at Rs. 5000/- per month for a period of 13 years. The Crl.M.C. No.2796/13 -: 4 :- multiplier was reckoned based on the age of the child after finding that within 13 years the child will be able to take care of her mother. 5. In the revision petition preferred by the petitioner, the Sessions Court, after re-appreciation of the evidence adduced and an analysis of the provisions of the Act, came to the conclusion that there was no error in the findings of the Magistrate. It was also found that considering the age of the first respondent and the present cost of living, the amount fixed by the Magistrate was just and reasonable. 6. Sri.K.M.Sathyanatha Menon, learned Counsel for the petitioner, attacked the two impugned orders contending that, while arriving at the conclusion on fair and reasonable provision for maintenance, the learned Magistrate had adopted a multiplier of 13 years, which was too excessive and based on no intelligible criteria. It was further submitted that the petitioner is not financially in a secure position to pay the amount directed, and hence the multiplier adopted was excessive. Reference was made to the decision in _**Abdul Saleem v. Fousiya**_ [2013 (1) KLT 20] to contend that the multiplier beyond five years ought not to have been adopted, and even if the Court wanted to fix the multiplier Crl.M.C. No.2796/13 ## -: 5 :- higher than 5, a maximum of 10 years alone ought to have been adopted. In any event, the first respondent is alleged to have remarried on 18.05.2017, as evident from Annexure-C additional document, and hence it was argued that she could not have been awarded amounts, based on a multiplier of 13. 7. Sri.K.A.Noushad, learned Public Prosecutor submitted that the impugned orders do not require any interference, especially under Section 482. It was further pointed out that the circumstances reveal that the multiplier adopted by the learned Magistrate as well as Sessions Court was just and reasonable. 8. I have considered the rival contentions and also perused the impugned orders. 9. Admittedly, a second revision is not contemplated by the Code. Though a petition under Section 482 Cr.P.C is entertained even against a revisional order, the scope of interference under the inherent powers against an order passed in exercise of the revisional jurisdiction is permissible only when the impugned order amounts to an abuse of the process of the court. The scope of interference under Section 482 Cr.P.C must therefore be only in exceptional circumstances. Merely because a different view is possible, that is not a ground by itself to interfere in the Crl.M.C. No.2796/13 -: 6 :- proceedings invoking the inherent power. 10. With the above proposition of law in mind, it can be discerned from the impugned orders that the learned Magistrate had rightly declined the value of gold ornaments as well as Rs.30,000/- claimed by the first respondent. As regards the claim for a reasonable and fair amount of maintenance, the learned Magistrate considered the entire evidence adduced and arrived at a figure of Rs.5,000/- per month and adopted the multiplier of 13 years. 11. The impugned order of the learned Magistrate was rendered on 02.04.2011, while the order of the learned Sessions Judge in revision was of the year 2013. On both dates, the first respondent was unmarried and accordingly, a provision had to be made to provide for a fair and reasonable amount of maintenance. 12. In **Danial Latifi and Another v. Union of India** [(2001) 7 SCC 740], the Supreme Court considered the constitutional validity of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and upheld it. The Act of 1986 provides remedies beneficial to the Muslim women divorcee by making the former husband liable to provide the Crl.M.C. No.2796/13 -: 7 :- divorced woman with a reasonable and fair provision, in addition to providing maintenance. While the Criminal Procedure Code provides the relief of maintenance only, the Act of 1986 furnishes to a divorced woman, in addition to a reasonable and fair provision, the relief of recovery of dower and return of marital gifts. 13. While upholding the validity of the Act, the Supreme Court in **Danial Latifi** ’s case summed up its conclusion as below: “(a) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of S.3(1) (a) of the Act. (b) Liability of a Muslim husband to his divorced wife arising under S.3(1)(a) of the Act to pay maintenance is not confined to the iddat period. (c) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under S.4 of the Act.......” 14. Thus, the liability of a Muslim husband to pay maintenance to his divorced wife is beyond question. 15. From the tenor of the argument of the learned Counsel, it was evident that petitioner was concerned more about the Crl.M.C. No.2796/13 -: 8 :- quantum of maintenance fixed, especially the multiplier adopted. As mentioned earlier, the learned Magistrate had adopted a multiplier of 13 based on the age of the child. Though the learned Counsel canvassed that a multiplier of 5 alone should have been adopted, it is evident from a perusal of the judgment in **Abdul Saleem v. Fousiya and Another** (2013 (1) KLT 20), that it is not impermissible to adopt a multiplier beyond five years. In the said decision, even after observing that normally a multiplier of 5 years could be adopted, the court fixed the multiplier at 10. 16. Though the aforementioned contention is impressive, I am not inclined to accept the said contention for more reasons than one. Adopting the multiplier for calculating the maintenance depends upon the facts and circumstances of each case. In the absence of any statutory prescription, it cannot be said that a particular multiplier alone ought to be adopted or that the multiplier adopted in another case must be the basis for the multiplier in another. There is an element of guesswork while adopting the multiplier, and a lot depends on the circumstances of each case. 17. Though the learned Counsel for the petitioner contended that, as evident from Annexure-C additional Crl.M.C. No.2796/13 -: 9 :- document, the first respondent had remarried on 18.05.2017, I am of the view that the alleged re-marriage has no relevance in the circumstances of the case. This Court is called upon to consider the regularity, propriety or otherwise of the impugned orders issued in 2011 and 2013. At that point in time, the Courts could not have assumed that the re-marriage of the first respondent would take place in 2017. The provision providing for maintenance is intended to serve the future. Of course, by remarriage, the right to claim maintenance would be lost. It is one thing to say that the right to claim maintenance would be lost on remarriage, while it is another thing to say that the multiplier adopted must be varied based on the remarriage. Therefore, while considering the validity of the award of fair and reasonable maintenance, the alleged subsequent marriage that occurred after four years cannot determine the correctness or irregularity of the impugned orders. At the time the application was filed, and at the time when the Magistrate rendered its order, the divorced wife had not remarried. 18. Apart from the above, the certificate produced as an additional document is not marked in evidence before the Magistrate’s Court. It is not a proved document. The document Crl.M.C. No.2796/13 -: 10 :- produced cannot be relied upon by this Court to set aside the well considered order of the learned Magistrate or that of the Sessions Court. 19. Even otherwise, on an appreciation of the circumstances of the case, I am of the view that the adoption of the multiplier as 13 to fix the quantum of maintenance, in the circumstances, was just and reasonable. Therefore, I find no merit in the Crl.MC and the same is dismissed. Sd/- **BECHU KURIAN THOMAS JUDGE** jm/ Crl.M.C. No.2796/13 -: 11 :- ## **`APPENDIX OF CRL.MC 2796/2013`** ## `PETITIONER EXHIBITS` ``` ANX.A TRUE COPY OF THE ORDER IN M.C. 35/09 DATED 2-4-2011 ON THE FILE OF THE JUDICIAL I CLASS MAGISTRATE-II, PERINTHALMANNA. ANX.B CERTIFIED COPY OF THE ORDER IN CRL.R.P. NO. 15/11 ON THE FILES ON FILES OF THE COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE MANJERI. ```