IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 Crl.MC.No. 3359 of 2007() ------------------------- CRRP.68/2005 of ADDL.FAST TRACK COURT (ADHOC)III, MANJERI .................... PETITIONER/REVISION PETITIONER/RESPONDENT: -------------------------- ABDUL RAHMAN, S/O. ABDULLAH, AMBATTUPARAMBIL HOUSE, THAZHEKODE,PERINTHALMANNA. BY ADV. SRI.K.A.HASSAN RESPONDENTS/RESPONDENT/ PETITIONER: -------------------------- 1. HAIRUNNESA D/O. ABDU, KALLINGAL HOUSE, KAKKOOTH AMSOM, PERINTHALMANNA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR PUBLIC PROSECUTOR, SRI.SANIL KUMAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “CR” P.S.GOPINATHAN, J. ---------------------------------- Crl.M.C.No.3359 OF 2007 --------------------------------- Dated this the 17th day of March, 2011 O R D E R ~~~~~~~ This is a petition filed under Section 482 of the Code of Criminal Procedure. The petitioner is the respondent in MC No.67/2004 on the file of the Judicial Magistrate of the First Class-I, Perinthalmanna, a petition filed by the 1st respondent herein under Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as Act 25/86). The petitioner married the 1st respondent in 1980. Though the matrimony was blessed with four children, the petitioner contracted a second marriage and started to ill-treat the 1st respondent. The 1st respondent moved O.P.No.123/2003 before the Family Court, Manjeri seeking dissolution of the marriage under Section 2 of the Dissolution of Muslim Marriage Act, 1981 and obtained Ext.P1 order dated 16.3.2004, whereby the marriage was dissolved. Thereupon, the 1st respondent moved the trial court, seeking an order directing the petitioner to pay a sum of Rs.18,000/- towards maintenance during iddat period and a sum of Rs.7.5 lakhs as reasonable and fair Crl.M.C.No.3359/2007 2 provision with a pleading that the petitioner was working abroad in A1-Alaim Defence Service since 8.2.1983 and that the 1st respondent after obtaining her Masters Degree in Arts joined the petitioner and was working in a school and that all the savings of the 1st respondent were appropriated by the petitioner and that the parties were living with all modern amenities and as on the date of the petition, the petitioner was conducting a business by name Valluvanad Steels and was earning Rs.50,000/- per month. In addition to that he owned a lorry from which he was getting Rs.10,000/- per month. Apart from the business and the lorry, the petitioner was having rubber plantations, coco gardens, pepper gardens etc. and thereby he had been getting an annual income of Rs.5,00,000/-. 2. The petitioner filed a counter statement, wherein the marital relationship was admitted and contending that as against Ext.P1 order, appeal as M.F.A.No.82/2004 was pending and in the above circumstance, the 1st respondent is not entitled to the relief sought in the petition. It was further contended that major portion of the income of the petitioner was appropriated for the education of the children and there was no earning at all and Crl.M.C.No.3359/2007 3 that 30 cents of property and 20 sovereigns of gold ornaments were purchased in the name of the 1st respondent. It was further contended that the business Valluvanad Steels is a partnership and it is incorrect to say that the petitioner had been getting a monthly income of Rs.50,000/-. The income from the landed property was also denied and further contended that the 1st respondent is not entitled to any maintenance during the iddat as she had not observed any iddat period and that she had been working as a teacher in an English medium school and had been getting income and that the 1st respondent voluntarily obtained divorce and hence she is not entitled to either maintenance or any reasonable and fair provision under Section 3 of Act 25/86 and prayed for dismissal of the petition. 3. During the course of enquiry, the 1st respondent was examined as PW1 and Exts.P1 to P4 were marked. On the side of the petitioner, he was examined as DW1. Another witness was examined as DW2. Exts.D1 to D5 were marked. The trial court, on appraisal of the evidence on record, arrived at a finding that the 1st respondent though obtained an order of divorce, she is entitled to get maintenance during the iddat period and also Crl.M.C.No.3359/2007 4 reasonable and fair provision. Taking into account of the materials disclosed in evidence, the trial court directed the petitioner to pay maintenance at the rate of Rs.3200/- per month for three months. Towards reasonable and fair provision, the petitioner was directed to pay Rs.3,84,000/- with interest at the rate of 6%per annum from the date of order till the date of payment. Assailing the said order, the petitioner preferred Crl.R.P.No.68/2005 before the Sessions Judge, Manjeri. The Additional Sessions Judge, (Ad-hoc)-III to whom the revision was made over, by the impugned order dated 19.7.2007 allowed the revision petition in part whereby the order to pay maintenance was disallowed on arriving at a finding that the 1st respondent had not observed iddat. As regards the reasonable and fair provision, the revisional court concurred with the trial court. But it was found that the 1st respondent is not entitled to interest. Consequently, the petitioner was directed to pay Rs.3,84,000/- towards reasonable and fair provision. Assailing the said order, this petition was filed. 4. According to the learned counsel for the revision petitioner, the 1st respondent had obtained divorce as per Ext.P1 Crl.M.C.No.3359/2007 5 by voluntarily filing O.P.No.123/2003 and since she had obtained divorce, she is not entitled to any maintenance during the iddat period or any reasonable and fair provision and that the benefit under Section 3 of Act 25/86 is available only to a wife, who has been divorced by husband and that the 1st respondent being an earning lady, she is not entitled to reasonable and fair provision. It was further submitted that the trial court as well as the revisional court ignored the above aspect and therefore the order impugned is unsustainable in law and to be set aside in exercise of the inherent powers under Section 482 Cr.P.C. It was also submitted that in any event the 1st respondent is entitled to reasonable and fair provision, the amount now awarded is highly excessive. 5. Going through the preamble of Act 25/86, I find no merit in the submission made by the learned counsel for the petitioner regarding the sustainability of the order. The preamble of Act 25/86 would show that the enactment was intended to protect the rights of the muslim women, who have been divorced or obtained divorce. Therefore, irrespective of the question as to how the marriage was dissolved, a divorced Crl.M.C.No.3359/2007 6 muslim woman is entitled to the benefit under Section 3 of Act 25/86. 6. The argument now advanced by the learned counsel for the petitioner is contrary to the object of the legislation, which is evident by the preamble. If that argument is accepted it would defeat the purpose of the legislation and would lead to disastrous consequences. The benefit that is being obtained by an order under Section 3 of Act 25/86, though is in lieu of an order under Section 125 of the Code of Criminal Procedure, is not intended as maintenance alone, but to meet her reasonable and fair needs in future including maintenance, clothing, health requirements etc. In the event a wife is persuaded to obtain a decree of divorce for good reasons, if she had to forgo the benefit of Section 3, it would lead only to vagrancy because she has no other go but to street unless she has her own roof and other sources. The 1st respondent was persuaded to file the petition for dissolution of marriage, when the petitioner contracted a second marriage after begotting four children in the 1st respondent and started ill treatment on her. There was good reason for the 1st respondent for seeking decree of Crl.M.C.No.3359/2007 7 dissolution of marriage. I find that for the reason that the 1st respondent had obtained a divorce, she is not at all disentitled to get an order under Section 3 of Act 25/86. So, the first contention that the 1st respondent is not entitled to an order under section 3 since she obtained a decree of divorce from the petitioner is devoid of any merit. 7. The second contention that was advanced is regarding the quantum. In fact, such a contention is not available to the petitioner in this petition under Section 482 of the Code of Criminal Procedure. The petitioner assailed the correctness of the quantum awarded in revision before the Sessions Judge. Having failed in revision, to get over the bar contained in Section 397(3) Cr.P.C, which prohibits a second revision by the same party, this petition is styled as one under Section 482 Cr.P.C. The quantum of reasonable and fair provision granted in favour of the 1st respondent is purely a discretion exercised by the trial court which was subjected to scrutiny by the Sessions Judge in revision. The quantum now under challenge is neither exorbitant nor beyond the means of the petitioner. I find no error, illegality or impropriety committed by the courts below so Crl.M.C.No.3359/2007 8 as to be rectified in exercise of the inherent powers. However, I find that it would be appropriate to have a brief look at the contention advanced by the petitioner. 8. The learned counsel for the petitioner contended that since the respondent is employed as a teacher, she is not entitled to an order for reasonable and fair provision under Section 3 of Act 25/86. A perusal of the orders of the courts below would show that such contention was not raised before the courts below. The other argument is that the trial court had determined a sum of Rs. 3,200/- as the quantum of maintenance for one month and that was capitalized for a period of ten years. According to the learned counsel for the petitioner, the amount so calculated for a long period is not at all justified and that a capitalization for three or four years would be just and reasonable. On the other hand, the learned counsel for the 1st respondent would submit that the reasonable and fair provision to be awarded under Section 3 of Act 25/86 is independent of the ability of the divorced woman to maintain herself as it is to provide reasonably and fairly for the future needs of the woman and that it is not at all intended as maintenance and that the Crl.M.C.No.3359/2007 9 quantum shall be determined with reference to the standard of the parties, means of the husband, the duration of the marriage and the prospects of remarriage of the woman, on case to case basis, irrespective of the multiplier. 9. In support of the argument, the learned counsel appearing for the 1st respondent relied upon the decision reported in Aliyar v. Pathu [1988(2) KLT 446]. At paragraph 11 it is held as follows: “Besides paying maintenance to the divorced wife for the Iddat period, former husband has to provide reasonably and fairly for the furture needs of the divorced wife, i.e., use of the divorced wife after the period of Iddat period and till her marriage or death.” At paragraph 13 it is further held as follows: “the order under sub Section (3) relates not merely to payment of maintenance or mahr or dower but also to payment of reasonable and fair provision and delivery of properties.” The learned counsel had also relied upon the decision reported in Ahammed v. Aysha [1990(1)KLT 172]. At paragraph 5 it is held as follows: Crl.M.C.No.3359/2007 10 “It is significant to remember that Sections 36 and 37 do not disentitle a wife with property and separate income from receiving either alimony pendente lite or the permanent alimony. If we compare and contrast the provisions of Section 3 of the Act with similar provisions in the other enactments, we find that even a millionaire wife who lives in luxury and affluence is certainly entitled to claim maintenance and other reliefs from her former husband under Section 3. There is no requirement of the wife being unable to maintain herself for granting maintenance for payment of fair an reasonable provisions as contemplated under Section 3. 10. I have carefully gone through Section 125 Cr.P.C. as well as Section 3 of Act 25/86. It is seen that under Section 125 of the Code of Criminal Procedure, the wife or divorced wife can claim maintenance only on plea and proof that she is devoid of means for her maintenance. Such condition is conspicuously omitted in Section 3 of the Act 25/86. So, it is evident that the legislator intended to provide reasonable and fair provision to the divorced wife irrespective of the income and the means of the divorced wife. I find that the principle laid down in Ahammed v. Aysha is in tune with the legislative intention. I find no reason to diverge with that ruling. For the forgoing reasons, Crl.M.C.No.3359/2007 11 the objection raised by the learned counsel for the petitioner that the 1st respondent is not entitled to get reasonable and fair provision as she is employed is not sustainable. 11. Regarding the quantum, according to the learned counsel for the petitioner, the amount awarded by the trial court and confirmed by the revisional court is exorbitant. The learned counsel had canvassed my attention to the decisions reported in Musthafa v. Fathimakutty [2006 (3) KLT 690], M.C.Haseena v. Mundakkaparamban Abdul Jaleel [2007(1) KHC 782] and Seenath v. Iqbal [2009(2)KHC 1009]. In Musthafa's case towards maintenance during the iddat period a sum of Rs.3,000/- per mensem was allowed. Towards reasonable and fair provision, Rs.1,20,000/- was awarded. A multiplier of 40 was seen adopted. According to the learned counsel, such a multiplier would be just and proper in this case also. Going by the above decision, it is not discernible as to what was the age of the parties, what the duration of the dissolved marriage, what was the status of the parties and what was the income of the husband. However, this Court while confirming the amount awarded towards the reasonable and fair provision arrived at a Crl.M.C.No.3359/2007 12 conclusion that the monthly maintenance can be reckoned as Rs.2,000/- and it was capitalized for a period of five years to sustain to the quantum. In Haseena's case, the claim was Rs.2,000/- per month towards maintenance during the iddat period. Maintenance was awarded at the rate of Rs.1500/- per month. Towards reasonable and fair provision, Rs.3,00,000/- was awarded. It is 200 times of the monthly maintenance. This Court while upholding the claim, observed that the quantum of reasonable and fair provision and maintenance should be fixed taking into account of the status of the life of the divorced woman at the time of marriage and during the continuance of the marriage. Within the set of facts, this Court reduced the amount of reasonable and fair provision to Rs.2,50,000/-. If that calculation is adopted, it would come to 166 times of the monthly maintenance. In effect it was capitalized for 13 years and 10 months. In Seenath's case, a sum of Rs.1,00,000/- was claimed towards the reasonable and fair provision with a plea that the husband was having a monthly income of Rs.7,000/-. The trial court declined the prayer for reasonable and fair provision and arrived at a finding that the divorced wife had received a sum of Rs.11,000/- in full and final settlement. This Court disagreed Crl.M.C.No.3359/2007 13 with the trial court and found that the reasonable and fair provision and maintenance to be paid to the divorced woman shall be determined with reference to the status of the parties, capacity and ability to the former husband and all such other attendant circumstances should be taken into account. Since the trial court omitted those aspects, the order of the trial court was set aside and the matter was remanded back to the trial court for fresh disposal. 12. If the method of calculation adopted in Haseena's case is taken into, the quantum now awarded is not at all exorbitant. Not only that, if calculation is made on that basis, the 1st respondent would be entitled to more amount than now awarded. If at all the courts below erred, it is only in favour of the petitioner. In Haseena's case and Seenath's case, this Court has reiterated that while fixing the reasonable and fair provision and maintenance to the divorced wife the Court shall keep in view the status of the parties, capacity and ability of the former husband and such other attendant circumstances. The age of the divorced woman as well as the chances for remarriage has also to be taken into account. In this case, admittedly, on the date of Crl.M.C.No.3359/2007 14 the divorce the petitioner was aged 43 years and a mother of four children. The matrimony subsisted for more than two decades. Till now the petitioner had not remarried. Therefore, there is little chance for a remarriage. In Haseena's case, the divorced woman was aged only 20 years and she was a student. She had better prospects for a remarriage also. So, Haseena cannot be compared with the petitioner. 13. Regarding the income, the case of the 1st respondent is that the petitioner has a business by name Valluvanad Steels, wherein he has been getting a monthly income of Rs.50,000/-. In addition to that the petitioner has got a lorry from which he has been getting a monthly income of Rs.10,000/-. He has also rubber plantations, coco gardens, pepper gardens etc. and thereby he has been getting an annual income of Rs.5,00,000/-. As against this plea, the petitioner contended that Valluvanad Steels is a partnership firm and he had no other income. However, no document was produced to show that Valluvanad Steels is a partnership business. The petitioner had produced neither the income tax returns nor the sales tax returns. Ext.P2 Crl.M.C.No.3359/2007 15 to P4 would show that the petitioner had acquired 1.6 acres, 2 acres and 10 cents of property respectively by virtue of those document. Evidently, those purchases were subsequent to the marriage between the petitioner and the 1st respondent. In that way, Exts.P2, P3 and P4 acquisitions are joint acquisitions, though the document was obtained in the name of the petitioner. It was also revealed out in evidence that the petitioner owns two residential buildings. The 1st respondent has no residential building. Regarding the standard of the parties, the order impugned would show that the parties belong to the higher strata. The 1st respondent has four brothers. One is a doctor and another is a librarian. The third one is a College Lecturer and the last one is employed in Gulf country. The only sister of the respondent was working as a Lecturer at that time. In the above circumstances, the revisional court was justified in arriving at a conclusion that the parties belong to the higher strata of the society. Though the petitioner had denied the income stated by the respondent, he didn't care to disclose his actual income. He suppressed material facts from the court. Then the only option is to go for a guess work. There is little material to show that in doing so the courts below anyway erred. Crl.M.C.No.3359/2007 16 14. In the above circumstance, I find that the amount awarded is not at all exorbitant. Neither it is beyond the means of the petitioner so as to reduce in exercise of the inherent powers of this Court under Section 482 of the Code of Criminal Procedure. This petition is really an abuse of the process. There is no merit. Accordingly, this petition is dismissed with cost of Rs.5,000/- (Rupees five thousand only). The 1st respondent is entitled to realise the amount impugned with interest at the rate of 9% per annum from 19.7.2007, the date of the order in the Revision Petition. (P.S.GOPINATHAN, JUDGE) ps