Safiya v. K.C. Muhammad

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 23RD DAY OF JUNE 2017/2ND ASHADHA, 1939 RPFC.No. 74 of 2012 ----------------------MC 451/2010 of FAMILY COURT,KOZHIKODE REVISION PETITIONER/PETITIONER: ----------------------------------------------- SAFIYA D/O.UNNIMOYI, OMASSERY VEEDU, THIRUVAMBADI AMSOM DESOM, KOZHIKODE , THIRUVAMBADI P.S.L BY ADV. SRI.NIRMAL. S RESPONDENT/RESPONDENT: --------------------------------------- K.C.MUHAMMAD, AGED 52 YEARS S/O.SEEMANKUTTY, KARIMBILIKKAD VEEDU, KODIYATHOOR AMSOM, CHERUVADI P.O.,KOZHIKODE, MUKKAM P.S.L,PIN-673661 R BY ADV. SRI.K.M.FIROZ R BY ADV. SMT.M.SHAJNA THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 23-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.P.(F.C) No. 74/2012 ## **APPENDIX** PETITIONER'S EXHIBITS: ANNEX.A1 : TRUE COPY OF MC 451/2010 BEFORE THE FAMILY COURT, KOZHIKODE DT.1.12.2010 ANNEX.A2 : TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT IN MC 451/2010 DT 21.2.2011. ANNEX.A3 : TRUE COPY OF THE ORDER IN MC 451/2010 DT.4.5.11. RESPONDENTS' EXHIBITS : NIL // True Copy // PA to Judge ## **C.R.** ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - R.P.(F.C.) No.74 of 2012 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd ] day of June 2017 ## O R D E R The revision petitioner is the petitioner in M.C.No.451 of 2010 on the files of the Family Court, Kozhikode. The revision petitioner filed the above M.C. under Section125 Cr.P.C. against the respondent herein. The court below dismissed the said M.C. as per order dated 4.5.2011. ## 2. Heard both sides. 3. It is not disputed that the revision petitioner is the divorced wife of the respondent. It is also not disputed that the revision petitioner filed an application under Section 3 R.P.(F.C.).74/2012 -: 2 :- of the Muslim Women (Protection of Rights on Divorce) Act (for short 'the Act.') against the respondent and the said application was allowed by the court. It is also not disputed that part of the amount ordered by the court under Section 3 of the Act alone was paid by the respondent and the balance amount is not yet paid. Since the respondent did not pay the full amount, he was sentenced to undergo imprisonment by the court below. 4. In this connection, it is relevant to extract clause (b) to sub section 3 of Section 127 Cr.P.C., which is extracted hereunder: “(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall,if he is satisfied that- R.P.(F.C.).74/2012 -: 3 :- (a) xxx xxxx xxxxx (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order- (i) in the case where such sum was paid before such order, from the date on which such order was made, (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman; (c) xxx xxxx xxxxx” It is clear from clause(b) to sub-section (3) of Section 127 Cr.P.C. that if the divorced woman has received whole of the sum which under any customary or personal law R.P.(F.C.).74/2012 -: 4 :- applicable to the parties, was payable on divorce, she is not entitled to get the maintenance. It is clear from clause (b) to sub-section (3) of Section 127 Cr.P.C. that if the whole amount under the customary or personal law applicable to the parties is received, the petitioner will be loosing her right to claim maintenance under Section 125 Cr.P.C. 5. In this case, admittedly, the whole amount was not paid. It is true that the respondent was sentenced to imprisonment for his failure to pay the amount. It is clear from sub-section (4) of Section 3 of the Act that the husband against whom an order has been made under subsection 3 of the Act fails without sufficient cause to comply with the order, the Magistrate will be justified in issuing a R.P.(F.C.).74/2012 -: 5 :- warrant for levying the amount of maintenance or mahr or dowr due in the manner provided for levying of the fines under the Code and the Magistrate may also sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a period which may extend to one year or until payment if sooner made. It is clear from sub-section (4) of Section 3 of the Act that the husband against whom an order under Section 3 of the Act has been passed can be sent to jail if and only if he fails without sufficient cause to comply with the order. The respondent was sentenced to imprisonment only because the court was satisfied that the respondent failed to pay the amount without sufficient cause. R.P.(F.C.).74/2012 -: 6 :- 6. The Division Bench of this court in Kunhimohammed v. Ayishakutty [2010(2) KHC 63 : 2010 (2) KLT 71] held that the liability of the husband under Section 125 of the Code can be extinguished by making payment of the amount payable under the customary and personal law applicable to a particular community. It is thus clear from the above decision that the liability under Section 125 of the Code must stand extinguished if he establishes that he had made payment of the amount payable under the customary or personal law applicable to him after effecting the divorce. Therefore, it is clear that it is neither the passing of the order under Section 3 of the Act, nor the part payment of the amount made under the customary or personal law applicable to him, but the actual R.P.(F.C.).74/2012 -: 7 :- payment of the whole amount payable under Section 3 of the Act shall extinguish the liability under Section 125 of the Code in accordance with Section 127(3)(b) of the Code. Even if the divorced husband has undergone the sentence of imprisonment awarded under Section 3(4) of the Act, that cannot extinguish the liability of the divorced husband under Section 125 of the Code. Therefore, the mere fact that the respondent had undergone the sentence of imprisonment awarded under Section 3(4) of the Act, it cannot be said that the petitioner is not entitled to the relief under Section 125(3) Cr.P.C. The right to get maintenance as per Section 125 Cr.P.C. extinguishes at the moment when she receives the whole amount. Since the petitioner herein did not receive the whole amount, it R.P.(F.C.).74/2012 -: 8 :- cannot be said that the petition filed by the petitioner under Section 125 Cr.P.C. is not maintainable. For the said reason, the order impugned cannot be sustained and consequently, I set aside the same. In the result, this R.P.(F.C.) stands allowed, setting aside the order impugned and the matter is remitted to the court below for proceeding with M.C. No.451 of 2010, in accordance with law. Sd/- ## **B.SUDHEENDRA KUMAR,** **JUDGE** _dl/24.6..2017_