IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 Crl.Rev.Pet.No. 1735 of 2002() ------------------------------ AGAINST THE ORDER IN CMP.6613/2002 IN MC 35/1998 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... REVN. PETITIONER(S): PETITIONER/RESPONDENT IN M.C: -------------------------------------------------- MAITHEEN, S/O. OURAI, KUZHIPPILLY, KAITHAKATTUKARA, PATTIMATTOM P.O. BY ADV. SRI.P.K.YUSUFF ISSUDDIN SRI.N.R.CHANDRASEKHARAN RESPONDENT(S): CR.PETITIONER AND STATE/PETITIONER IN MC & STATE: ---------------------------------------------------------------- 1. SAPHIYA, D/O. PAREEDKUNJU, KUMMATTUPUTHEN PURAYIL, KUMMANODUKARA, PATTIMATTOM P.O. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.H.ABDUL AZEEZ FOR R1 PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1735 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of October, 2009 ORDER The revision petitioner is the first respondent in M.C.No.35/1988 of Judicial First Class Magistrate Court, Kolencherry. The respondent is his wife. The respondent has filed the above M.C. claiming reasonable and fair provision envisaged under Section 3 of Muslim Women ( Protection of Rights on Divorce) Act . The learned Magistrate by order dated 29-12-1990 directed the revision petitioner to pay a sum of Rs. 21,000/- as reasonable and fair provision. The revision petitioner challenged the above order in Crl.R.P.No.95/1991 before this court. The revision first respondent also challenged the order as she is aggrieved by the quantum fixed by filing another Crl.R.P. before this court. This court has directed the revision petitioner to deposit Rs. 10,000/- before the court below towards the maintenance of the revision first respondent. In pursuance to that order the revision petitioner deposited Rs. 10,000/- before the Magistrate and Crl.R.P.No.1735 Page numbers first respondent has withdrawn the same on March 8, 1999. The above said two revisions were heard by this court and this court by a common order dated July 12, 1993 allowed the revision petition filed by the revision petitioner and dismissed the revision petition filed by the first respondent holding that revision first respondent is not entitled to any maintenance as provided in Muslim Women ( Protection of Rights on Divorce) Act and set aside the order of the learned Magistrate. The revision first respondent challenged the said order before the Supreme Court in Crl.Appeal No.1298/1995 and the honourable Supreme Court by order dated December 4, 2001 ordered thus : “ Having considered the matter, we think it appropriate to set aside the order made by the high court and allow the appeal filed by the appellant granting her maintenance in a lump sum of Rs. 50,000/- in lieu of what had been granted by the Judicial First Class Magistrate, Kolencherry by his order dated December 27, 1990 in Miscellaneous Case NO. 35/1988, let such payment be made within a period of three months from today.” 2. In pursuance of the above order, revision petitioner paid Crl.R.P.No.1735 Page numbers Rs. 40,000/- to the revision first respondent for the period from 12-4-2002 to 19-11-2002. Thereafter revision petitioner filed C.M.P.No.6613/2002 before the Magistrate to close the proceedings contending that entire amount as mentioned in the order of the Supreme Court has been paid. The first respondent filed objections stating that it was in addition to Rs. 10,000/- paid by the revision petitioner earlier, the Supreme Court has ordered Rs. 50,000/- more as maintenance. After hearing both sides, the trial court dismissed the petition holding that it was in addition to Rs. 10,000/- paid after the disposal of the M.C. filed by the revision petitioner , the Apex Court has ordered maintenance of Rs. 50,000/- and that therefore the revision petitioner has to pay Rs.10,000/- more to the first respondent. The revision petitioner challenges the said order dated December 7, 2002. 3. Heard the counsel for the revision petitioner and the revision first respondent. 4. Counsel for the revision petitioner argued that it was in the place of maintenance granted by the learned Magistrate, the Supreme Court has ordered Rs. 50,000/- as maintenance and that therefore, Crl.R.P.No.1735 Page numbers Rs.10,000/- paid by him has to be given credit to in computing the total amount of maintenance ordered by the Apex court. This is opposed by the counsel for the first respondent. 5. A reading of the operative portion of the order of the Apex Court shows that it was in lieu of what had been granted by the Judicial First Class Magistrate Rs. 50,000/- was ordered as maintenance. If the argument of the counsel for the first respondent that it was in addition to Rs. 10,000/- paid by the revision petitioner after the disposal of M.C. before the Magistrate is accepted, the total amount of maintenance will come to Rs.71, 000/- i.e. Rs. 21,000/- awarded by the Magistrate + Rs. 50,000/- granted by the Apex Court. Even the revision respondents have no such case. Therefore, I am of the view that it was in the place of Rs.21,000/- awarded by the Magistrate as maintenance, the Apex Court has awarded Rs. 50,000/- . That being so, Rs. 10,000/- paid by the revision petitioner after the disposal of the M.C. should be given credit to in computing the total amount of maintenance awarded by the Apex Court. It follows that the revision petitioner has paid the entire maintenance amount granted by the Apex Court by its order dated Crl.R.P.No.1735 Page numbers December 4, 2001. Consequently the order of the learned Magistrate dated December 7, 1992 in C.M.P.No.6613/2002 has to be set aside and the said C.M.P. has to be allowed. In the result, the revision petition is allowed. The order of the learned Judicial First Class Magistrate, Kolencherry in C.M.P.No.6613/2002 dated December 7, 2002 in M.C.No.35/1988 dismissing the C.M.P. is set aside and the said C.M.P. is allowed. In the circumstances, parties shall bear their own costs. P.Q.BARKATH ALI JUDGE sv. 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