IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 Crl.Rev.Pet.No. 218 of 2002() ----------------------------- CRRP.37/2001 of ADDL.DISTRICT COURT, NORTH PARAVUR MC.18/1994 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVISION PETITIONER(S): RESPONDENT/RESPONDENT: ------------------------------------------------------------------------------------- IBRAHIM, S/O.ABDUL RAHIMAN, THADETHIKUNNEL HOUSE, VENDUVAZHI KARA, CHERUVATTOOR, KOTHAMANGALAM. BY ADV. SRI.N.A.ALI RESPONDENT(S): REVISION PETITIONER/PETITIONER: ---------------------------------------------------------------------------------- 1. SAFIYA, D/O. SULAIMAN HAJI, NANETHAN HOUSE, KANDANTHARA KARA,VENGOLA VILLAGE, KUNNATHUNADU TALUK. 2. KERALA STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.218 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 27th February, 2009 ORDER The husband in a proceeding under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act') has filed this revision challenging the order passed by the revisional court, the Sessions Judge, North Paravur reversing the order of dismissal passed by the learned Magistrate in a petition moved under Section 3 (2) of the Act, and remitting the case for fresh consideration in accordance with law. 2. The parties are herein referred to as the wife and the husband. The wife claiming the status of a divorced woman moved a petition under Section 3 of the Act for reasonable and fair provision and maintenance from the husband. The claim was resisted by the husband contending that he had not divorced the wife and further that, she suffered from mental illness causing the rupture of the marital tie between them. The case was once decided ex parte against the husband which was subsequently set aside and remitted for fresh consideration by orders in revision taken at the instance of the husband. After such remission, the learned Magistrate accepting the case of the husband that there was no proper talak under the Crl.R.P.218/02 - 2 - Muslim law and thereby effecting the divorce of the wife enabling her to sustain the claim under the above Act, dismissed the petition. The wife moved a revision challenging the dismissal and the revisional court after reappreciating of the materials produced found that the conclusion reached by the learned Magistrate was thoroughly unsustainable as it was against the personal law governing the parties. The divorce in the present case was effected under a written document and so much so, the contention of the husband that talak was pronounced only two times and thus it was ineffective, has no significance was the conclusion of the revisional court. Drawing the distinction between an oral and written talak, the revisional court concluded that by virtue of Ext.D2, the written talak pronounced by the husband, the divorce had become effective and the wife had attained the status of a divorce women. The revisional court entering on such finding set aside the dismissal order of the learned Magistrate and remitted the case for fresh disposal, affording both sides opportunity to adduce further evidence, if any, so as to consider the other points involved. Against the remission of the case so ordered, the husband has filed this revision. 3. I heard the learned counsel for the husband. Perusing the Crl.R.P.218/02 - 3 - records of the case with reference to the order impugned, I find that the conclusion formed by the Sessions Judge that there is distinction between oral and written pronouncement of talak is unimpeachable. In the light of Ext.D2 evidencing that the divorce of the wife had been effected by a written document, the irresistible conclusion follows that pronouncement of talak three times as required in the case of an oral pronouncement cannot at all be insisted. The talak became effective by Ext.D2 as it disclosed a clear intention to dissolve the marriage irrevocably. When such talak is made, there is no necessity for three pronouncements as contended by the husband. So, the finding that there was a divorce by virtue of Ext.D2 cannot at all be questioned. I do not find any merit in the challenges mooted questioning the finding so entered and also the order passed remitting the case for fresh disposal. It is seen that the claim moved by the wife is pending for the last 15 years and still she is unable to get any benefits conferred under the Act. Her status as a divorce women, it seems, has been assailed for the solitary reason to protract the proceedings and thereby deny whatever reasonable and fair provision she is entitled to under law. The records show that both sides have been given sufficient opportunity to lead evidence and Crl.R.P.218/02 - 4 - therefore the Magistrate can be directed to dispose the case on the materials already tendered. So, modifying the direction of the Sessions Judge on that aspect, I direct the learned Magistrate to dispose the case on the materials already tendered, after affording reasonable opportunity of hearing to both sides, as expeditiously as possible, at any rate, within three months from the date of receipt of the records of the case from this court. The respondent has not entered appearance in the revision and so much so, on remission of the case, the court below shall issue notice to the respondent for her appearance and dispose of the case as directed, in accordance with law. The revision petitioner shall appear before the court below on 23.3.2009. Send the records forthwith. srd S.S. SATHEESACHANDRAN, JUDGE