IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 Crl.MC.No. 1883 of 2007() --------------------------------- CR.R.P..28/2006 of ADDL. SESSIONS COURT (FAST COURT NO. III, MANJERI AND MC.21/2004 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................................................................................................. PETITIONER/RESPONDENT: --------------------------------------- ABDUL KADHER, S/O. THAZHEPALLIYALI SYED AHAMMED, HILL TOP, MONGAM, MORAYUR, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS/PEITIONER & STATE: ----------------------------------------------------- 1. ARAKKAL VAHEEDA, D/O. MUHAMMED, ARAKKAL HOUSE, KALLIDAMBU, EDAVANNA, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.T.K.AJITH KUMAR FOR R1 & SRI. AMJALI ALI PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J --------------------------------------- CRL.M.C. 1883 OF 2007 ------------------------------- Dated this the 14th day of July, 2009 O R D E R Respondent is the divorced wife of the petitioner. She filed M.C.No. 21/04 under Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act under Annexure A order. The learned Magistrate granted Rs. 90,000/- towards the value of the gold ornaments and 60,000/- being the reasonable and fair provision Rs. 26,000/- as the money taken by petitioner and Rs. 1500/- for the Iddat period. Petitioner challenged that order and before Sessions Court, Manjery in Crl.R.P.28/06. Respondent filed Crl.R.P 29/06 for enhancement of the amount. 2. Under Annexure 3 Order learned Sessions Judge fixed the value of gold ornaments as Rs. 90,000/- and Rs. 1,05,600/- towards the reasonable and fair provision and Rs. 1,650/- towards the iddat expenses. This petition is filed challenging that order. CRL.M.C. No. 1883/2007 2 3. The arguments of the learned counsel appearing for the petitioner is that as the petitioner was not divorced as provided under Mahomedan Law but divorce was obtained from the Civil Court, she is not entitled to claim the benefit under Section 3 (1) of the Muslim women Protection of rights on divorce Act and her remedy is only under section 125 of Code of Criminal Procedure. It is also contended that in any case respondent is not entitled to get the amount for the iddat period and also the value of the gold ornaments as that was rejected earlier. 4. Learned Counsel appearing for the respondent pointed out that the question whether a divorced Muslim Women, who was divorced through Civil Court is a “divorced Women is as defined under the Act is more resgeste in view of the decision of the Apex court in Zohara Khatoon Vs. Ibrahim (1981 S C 509) and this court in Asharaf Vs. Jennath Beevi (2002 (3) K.L.T 345) and Abdulla Vs. Subaida. (2006 (3) K.L.T 699). CRL.M.C. No. 1883/2007 3 Section 2 (a) defines a divorced Women as a Muslim Women who was married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with Muslim Law. Apex Court in Zohara Khatoon Case (Supra) has held that a Divorcee under Talaq or Kula/Mubarath as well as a divorce obtained from a Civil Court for dissolution of marriage under section 2 of the 1939 Act would also be a divorced women. 5. “In these circumstances we are, therefore, satisfied that the interpretation put by the High Court on the second limb of clause (b) is not correct. This seems to be borne out from the provisions of Mahomedan law itself. It would appear that under the Mahomedan law there are three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and the wife terminated so as to result in an irrevocable divorce: (1) Where the husband unilaterally gives a divorce according to any of the forms approved by the Mahomedan law, viz., talak ahsan, which consists of a single pronouncement of divorce during tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat; or talak ahsan which consists of three pronouncements made during the successive tuhrs, no intercourse taking place between three tuhrs; and lastly talak-ul-bidaat or talak-i-badai which consists of three CRL.M.C. No. 1883/2007 4 pronouncements made during a single tuhr either in one sentence or in three sentences signifying a clear intention to divorce the wife, for instance, the husband saying ' I divorce thee irrevocably' or' I divorce thee, I divorce thee, I divorce thee'. The third form referred to above is however not recognised by the Shiah law. In the instant case, we are concerned with the appellant who appears to be a Sunni and governed by the Hanafi law (vide: Mulla's PRINCIPLES OF MAHOMEDAN LAW, § 311, P. 297). A divorce or talaq may be given orally or in writing and it becomes irrevocable if the period of iddat is observed though it is not necessary that the woman divorced should come to know of the fact that she has been divorced by her husband. (2) By an agreement between the husband and the wife whereby a wife obtains divorce by relinquishing either her entire or part of the dower. This mode of divorce is called 'khula' or mubarat. This form of divorce is initiated by the wife and comes into existence if the husband gives consent to the agreement and releases her from the marriage tie. Where, however, both parties agree and desire a separation resulting in a divorce, it is called mubarat. The gist of these modes is that it comes into existence with the consent of both the parties particularly the husband because without his consent this mode of divorce would be incapable of being enforced. A divorce may also come into existence by virtue of an agreement either before or after the marriage by which it is provided that the wife should be at liberty to divorce herself in specified contingencies which are of a reasonable nature and which again are agreed to by the CRL.M.C. No. 1883/2007 5 husband. In such a case the wife can repudiate herself in the exercise of the power and the divorce would be deemed to have been pronounced by the husband. This mode of divorce is called 'tawfeez' (vide: Mulla's PRINCIPLES OF MAHOMEDAN LAW, § 314,P.300). (3) By obtaining a decree from a civil court for dissolution of marriage under Section 2 of the Act of 1939 which also amounts to a divorce (under the law) obtained by the wife. For the purpose of maintenance, this mode is governed not by clause (b) but by clause (c) of sub-section (3) of Section 127 of the 1973 Code; whereas the divorce given under modes (1) and (2) would be covered by clause (b) of sub-section (3) of Section 127”. This court in Asharaf case (Supra) has held that a Muslim Women who obtained a decree for dissolution of marriage from the Civil Court would also be a divorced women as defined under Section 2 (a) of the Muslim Women (Protection of Rights on Divorce) Act is entitled to get the benefit under section 3 of the Muslim Women (Protection Right on Divorce) Act. Hence challenge against the orders passed by the Magistrate and the Sessions judge on the ground that petitioner was not divorced by talaq or mubarath,and so she is not a divorced women and the CRL.M.C. No. 1883/2007 6 Muslim Law and therefore not entitled to the benefit under section 3 of the Muslim Women (Protection of Rights on Divorce) Act is not sustainable. 6. Question whether such a divorce women is entitled to maintenance for the iddat period was also considered and upheld by this court in Asharaf's case (Supra). Therefore, the order passed by the revisional court cannot be challenged on any of these grounds. 5. Learned counsel appearing for the petitioner then submitted that petitioner is not entitled to the value of gold ornaments. Learned Magistrate and the Sessions Judge considered the evidence on this aspect and the factual finding so rendered cannot be interfered in exercise of the extra ordinary power under Section 482 of Code of Criminal procedure. Therefore, the petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE ln