IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 Crl.MC.No. 26 of 2011() ----------------------- MC.168/2002 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR CRL.RP.27/2004 of SESSIONS COURT, THALASSERY .................... PETITIONER(S)/REVISION PETITIONER/RESPONDENT: --------------- P.ABDURAHIMAN, S/O.MUHAMMED HAJI, AGED 38 YEARS, KODMMADAN HOUSE, P.O.PARAPPA, KASARAGOD DISTRICT. BY ADV. SRI.C.KHALID SRI.T.P.SAJID RESPONDENT(S)/RESPONDENT/PETITIONER: --------------- 1. U.K.P.KHADEEJA, D/O.ULLI KIZHAKKEPURAYIL KUNHAMINA, KAVVAYI, P.O.KAVVAYI, (VIA) PAYYANNUR, KANNUR DISTRICT-670307. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.26 of 2011 -------------------------------------- Dated this the 28th day of January, 2011. ORDER Petitioner is the former husband of the respondent who filed M.C.No.168 of 2002 in the court of learned Judicial First Class Magistrate, Payyannur under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short, “the Act”). Respondent made various claims of which, only two claims are allowed, maintenance during the period of iddat and reasonable and fair provision for future maintenance. Hence it is not necessary to advert to other claims of the respondent. Respondent claimed `.30,000/- during the period of iddat and Rupees five lakhs as reasonable and fair provision for future maintenance. Learned Magistrate found, rejecting the contentions of petitioner that he is liable to pay `.4,500/- as maintenance during the period of iddat and `.1,50,000/- as reasonable and fair provision. Learned Sessions Judge in Crl.R.P.No.27 of 2004 filed by the petitioner has confirmed the said order. The said orders are under challenge at the instance of petitioner. It is contended by learned counsel that the amount awarded is exorbitant. According to the learned counsel, respondent did not make any claim against her first husband and hence she is estopped from making any claim against petitioner. 2. This being a proceeding under Section 482 of the Code of Criminal Procedure (for short, “the Code”), limited question is whether the order under challenge suffers from any illegality or the proceeding was an abuse of process Crl.M.C.No.26/2011 2 of law. Even as per the version of petitioner, he is a painter by occupation and was aged 38 years at the time proceedings were initiated. Respondent was then aged 29 years. It is not disputed that it was second marriage of petitioner and respondent and that after pronouncement of thalak on respondent on 31.01.2002 with effect from 04.02.2002, petitioner has contracted a third marriage and is maintaining that lady. Necessarily I must think that he is capable of maintaining a family. He was aged 38 years and is able bodied. It is not shown that petitioner is incapable of earning due to physical infirmity. Hence it must be presumed that petitioner is capable of earning. Having regard to the need of a 29 year old lady such as food, clothing, shelters and other basic necessities, sum of `.1,500/- per month (ie. at the rate of `.50/- a day) awarded as maintenance during the period of iddat cannot be said to be exorbitant or, beyond the paying capacity of petitioner. 3. It is seen that learned Magistrate has awarded a lump sum of `.1,50,000/- as reasonable and fair provision for future maintenance. True, there was no assessment of the amount payable and learned Sessions Judge has confirmed the said order. Having regard to the age of parties, even if '8' is taken as the multiplier to be adopted, amount payable as reasonable and fair provision for future maintenance at the rate of `.1,500/- per month comes to `.1,44,000/- while what is awarded is `.1,50,000/-. Having regard to the age of respondent and her need I do not think that the amount awarded is exorbitant so as to call for interference under Section 482 of the Code. Crl.M.C.No.26/2011 3 4. The next contention is that respondent having not made any claim against her former husband is estopped from making a claim against petitioner, her second husband. I do not find any statutory provision or precedent to back that contention. May be, respondent could have made a claim against her former husband also in which case her re-marriage with petitioner would have been a relevant consideration in fixing the amount payable as future maintenance. But in the present proceeding claim is for expenses during the period of iddat following petitioner divorcing the respondent and for her future maintenance. No claim prior to her marriage with the petitioner is involved. Contention that respondent having failed to make a claim against her former husband is estopped from establishing her claims against the petitioner has no legal backing. It has to fail. 5. On hearing learned counsel and on going through the orders under challenge I do not find reason to interfere. Resultantly this petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks