IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 1170 of 2001(C) ---------------------------------------- MC.9/2001 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER : ------------------------- SAMEERA RAHMAN VATTACARY, D/O.RAHIMEN, VATTACARY, 23 YEARS, NEAR KANHANGAD MASJID, KIZHUNNE, EDAKKAD, KANNUR DISTRICT. BY ADV. SRI.P.K.VIJAYAN RESPONDENT : ----------------- P.A.MOHAMMED SHAFEEQ, KARAPPAYIL HOUSE, CHOODIKOTTA ROAD, AZHIYOOR, BADAGARA, KOZHIKODE DISTRICT. ADV. SRI.T.A.RAMADASAN - R1 PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2008, ALONG WITH CRRP NO. 2775 OF 2003 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ CRL. R. P. Nos. 1170 of 2001 & 2775 of 2003 --------------------------------------- Dated this the 14th day of October, 2008 O R D E R These revision petitions arise from the disposal of M.C. No.9/2001 of the Court of Additional Chief Judicial Magistrate, Thalassery under Section 3(1) of the Muslim Women (Protection of Rights and Divorce) Act, 1986 (for short 'the Act'). Divorced wife alleged that a sum of Rs.3,00,000/- belonging to her was misappropriated by her former husband and claimed that amount. She also claimed Rs. 72,000/- being value of 24 sovereigns of gold ornaments allegedly misappropriated by him. The further claims are for Rs.15,000/- towards maintenance expense during the period of iddat and Rs. 15,00,000/- towards reasonable and fair provision for future maintenance. She claimed that the former husband is working as Electrical Engineer at Abudabi earning Rs.1,00,000/- per month. In the counter statement the former husband disputed various claims and claimed that as per Exhibit R3 (Exhibit R4 its copy), agreement dated 18/10/2000 entire claims of the divorced wife was settled on the eve of divorce. As per that settlement the divorced wife received a sum of CRL. R. P.Nos. 1170/ 2001 & 2775 /2003 2 Rs. 9,000/- as expenses during the period of iddat. It was also agreed that the former husband will pay to the child born in the wedlock maintenance at the rate of Rs.500/- per month. He denied the allegation of misappropriation of money and ornaments belonging to the divorced wife. Both sides adduced evidence. Learned Additional Chief Judicial Magistrate vide the impugned order accepted Exhibit R3 agreement and refused to award maintenance during the period of iddat. Rs. 2,10,000/- was awarded as reasonable and fair provision for future maintenance. Other claims made by the divorced wife were rejected. Both sides are aggrieved. The divorced wife filed Criminal Revision Petition No.1170 of 2001 while former husband filed Criminal Revision Petition No.2775 of 2003. 2. Petitioner in Criminal Revision Petition No.1170 of 2001 and counsel remained absent. There was no representation. I heard counsel for revision petitioner/former husband in Criminal Revision Petition No.2775 of 2003. Learned counsel submitted that Additional Chief Judicial Magistrate was justified in rejecting the claims made by the divorced wife in the absence of reliable evidence CRL. R. P.Nos. 1170/ 2001 & 2775 /2003 3 and in the light of Exhibit R3. According to learned counsel, Exhibit R3 amounts to an implied relinquishment of the claim for future maintenance also and hence the court below was not correct in awarding any amount for future maintenance. Reliance is placed on the decision in Mytheen Vs. Saphiya [1993(2) K.L.J 336]. 3. So far as the claims based on alleged misappropriation of money and ornaments are concerned, the divorced wife gave evidence as PW1. Contra evidence is given by the former husband as CPW1. It is in the light of the contradicting evidence that learned Additional Chief Judicial Magistrate found it not justifiable to award any amount on that account. There is no evidence supporting the claim of the divorced wife. I do not find any illegality or irregularity in the view taken by learned Additional Chief Judicial Magistrate. 4. So far as Exhibit R3 is concerned, divorced wife has a contention that it was got executed under threat. Learned Additional Chief Judicial Magistrate was not inclined to accept that contention. Exhibit R3 is executed in a court at Abudabi, which confers benefits on the divorced wife as well. Nothing is brought out to show that Exhibit CRL. R. P.Nos. 1170/ 2001 & 2775 /2003 4 R3 is vitiated by any reason as claimed by the divorced wife. Therefore, Exhibit R3 is binding on the divorced wife. 5. In the decision relied by learned counsel it was pointed out that the non-obstante clause in Section 3(1) of the Act did not exclude an agreement between the parties settling their claims. Therefore, Exhibit R3 has to be taken into account. It is in view of Exhibit R3 which states that Rs.9,000/- was given to the divorced wife as expenses during the period of iddat that learned Additional Chief Judicial Magistrate refused to award any further amount on that account. The view taken by the Additional Chief Judicial Magistrate is legal and proper and required no interference. 6. What remained for consideration is whether the award of Rs.2,10,000/- towards future maintenance to the divorced wife is justified and if so, the amount awarded is reasonable. Though the divorced wife (petitioner in Revision Petition No.1170 of 2001) and counsel remained absent, I am required to consider the legality and correctness of the order and hearing the parties in the revision is only optional under Section 403 of the Code of Criminal Procedure. CRL. R. P.Nos. 1170/ 2001 & 2775 /2003 5 According to the learned counsel for former husband, Exhibit R3 contained an implied relinquishment of the claim for future maintenance in so far as it did not provide for any future maintenance. This argument of learned counsel cannot be accepted, reason being that Exhibit R3 being in the nature of restriction imposed on the right of the divorced wife under Section 3(1) of the Act, has to be strictly interpreted. There is no scope for reading into Exhibit R3 and holding that there is an implied surrender of claim for future maintenance. Mere fact that Exhibit R3 is silent about future maintenance did not mean that divorced wife relinquished her claim for future maintenance. Therefore, she is entitled to get fair provision for future maintenance. 7. Learned Additional Chief Judicial Magistrate has taken Rs.3,500/- per month as the amount required for future maintenance and relying on the decision in Ahammed Vs.Aysha [1990(1) K.L.T. 172], taken five as multiplier to reach the amount payable at Rs.2,10,000/-. 8. So far as the financial status of parties are concerned, evidence would show that they hail from reasonably affluent CRL. R. P.Nos. 1170/ 2001 & 2775 /2003 6 circumstances. Admittedly, the former husband has been working as Electrical Engineer in Abudabi. According to the divorced wife, he was earning at the rate of Rs.1,00,000/- per month. He claimed that he was getting only 6,000 Dirhams per month out of which, he had to spend 5000 Dirham per month (1000 Dirham equals Rs.12,500/- in Indian Currency). That version of the former husband cannot be accepted since he did not produce documents which he could have, to show that he was getting only 6000 Dirhams per month. Therefore, evidence of the divorced wife in that regard has to be accepted. 9. Going by Exhibit R3, the amount received by the divorced wife during the period of Iddat is at the rate of Rs.3,000/- per month. That was at a time when the parties were staying at Abudabi. Expenses at the native place of the divorced wife would be less than that. Therefore, I am inclined to think that Rs.2,000/- per month will be sufficient for future maintenance. The multiplier adopted by learned Additional Chief Judicial Magistrate is five (5), relying on the decision which I have preferred above. In para 7 of that decision, maintenance was taken for a period of 5 years. That decision cannot be taken as CRL. R. P.Nos. 1170/ 2001 & 2775 /2003 7 authority for the proposition that anything more than 5 years cannot be taken for the purpose of assessment of future maintenance payable. In this case the divorced wife was aged only 23 years at the time of divorce. Therefore, for fixing the amount payable for future maintenance, at least a period of 10(ten) years has to be taken into account. That brings the amount payable for future maintenance to Rs.2,40,000/- as against Rs.2,10,000/- awarded by learned Additional Chief Judicial Magistrate. To that extend the order under challenge requires modification. Resultantly, Criminal Revision Petition No.2775 of 2003 is dismissed. Criminal Revision Petition No.1170 of 2001 is allowed in part to the extend that the former husband shall pay the divorced wife Rs.2,40,000/- (Rupees two lakh forty thousand only) as reasonable and fair provision for future maintenance. CRP. No. 83 of 2001 in CMP. No.981 of 2001 shall stand dismissed. THOMAS P. JOSEPH, JUDGE scm