IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 Crl.MC.No. 1486 of 2010() ------------------------- CRRP.109 & 136/2008 OF SESSIONS COURT, KOZHIKODE MC.2/2006 of JUDL. FIRST CLASS MAGISTRATE COURT-IV, KOZHIKODE ..................................... PETITIONER / REVISION PETITIONER IN REVISION PETITION / COUNTER ------------------------------------------------------------------------------------------------------- PETITIONER IN M.C. : --------------------------- MUHAMMED SALIM, S/O.ALAVI MASTER, AGED 38 YEARS, PATHAPARIYAM, MALAPPURAM DISTRICT. BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENTS / RESPONDENTS IN REVISION PETITION / PETITIONER IN M.C --------------------------------------------------------------------------------------------------------------- AND STATE : ----------------- 1. C.NATHASHA, D/O.MUHAMMED, AGED 30 YEARS, A/78, LAIMOON, JAWAHAR COLONY, ERANHIPALAM, KOZHIKODE. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.MANJERI S. SUNDER RAJ SMT.K.K.PREETHA R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.1486 OF 2010 --------------------------------------------- Dated 16th September, 2010 O R D E R Petitioner, the previous husband of the first respondent filed this petition under Section 482 of Code of Criminal Procedure to quash Annexure-A2 order passed by First Additional Sessions Court, Kozhikode confirming Annexure-A1 order passed by Judicial First Class Magistrate-IV, Kozhikode in M.C.2/2006. Petitioner admittedly married first respondent on 7/11/1999. He pronounced Talaq on 17/8/2005. First respondent filed M.C.2/2006 before Judicial First Class Magistrate's Court-IV, Kozhikode under Section 3(1) of Muslim Women (Protection of Rights on Divorce) Act, 1986 contending Crmc 1486/10 2 that the petitioner is a business man getting Rs.50,000/- from his business and Rs.30,000/- as income from the property and therefore, she is entitled to get Rs.3,00,000/- towards fair and reasonable provision, also Rs.10,00,000/-, the amount allegedly given at the time of marriage and Rs.1,30,000/- being the value of Maruthi car given and Rs.7,89,120/- being the value of gold ornaments. Petitioner admitted the marriage as well as the divorce and resisted the claims before the learned Magistrate. First respondent was examined as PW1 and a witness as PW2 and the petitioner as CPW1. Learned Magistrate on the evidence found that the marriage of the petitioner with the first respondent was her second marriage and they were living as husband and wife for five years till the divorce in 2005. It was also found that first respondent was aged 39 years Crmc 1486/10 3 at the time of divorce. Learned Magistrate also found that petitioner would be getting a reasonable income of Rs.6,000/- per month. Considering the cost of living, Rs.2,000/- per month was fixed as the reasonable amount to lead a standard life for the first respondent, consiering all the aspects, including the prospect of re-marriage holding that there is no prospect for re-marriage, learned Magistrate found that the reasonable provision is to be fixed assessing the expenses for a period of ten years, at the rate of Rs.2,000/- per month. Petitioner was directed to pay Rs.2,40,000/- as fair and reasonable provision in addition to Rs.4,500/- being expenses during the iddath period. All other claims were disallowed. Petitioner challenged that order before First Additional Sessions Court, Kozhikode in Crl.R.P.109/2008 and the first respondent Crmc 1486/10 4 challenged insufficiency of the maintenance awarded, filed Crl.R.P.136/2008. Learned Additional Sessions Judge on reappreciation of entire evidence and materials dismissed both the revisions. This petition is filed by the husband challenging that order. 2. Learned counsel appearing for the petitioner and the first respondent were heard. 3. Learned counsel appearing for the first respondent pointed out that in para 25 of Annexure-A1 order learned Magistrate has stated that first respondent is aged 39 years and even in the counter affidavit filed by the first respondent before this court, her age is shown as only 30 years in 2010 and in the complaint filed before Judicial First Class Magistrate, Kozhikode her age is shown as 27 years in 2005 and therefore, in 2008 her age Crmc 1486/10 5 could only be 30 years and in such circumstances, finding of the learned Magistrate that she is aged 39 years is incorrect. True, when even according to the first respondent her age is only 30 years in 2010, finding of the learned Magistrate that she is aged 39 years cannot be correct. At the same time, it is to be born in mind that admittedly marriage of the petitioner with first respondent was her second marriage. In such circumstances, finding of the learned Magistrate that there is no reasonable chance for a re-marriage cannot be said to be illegal. 4. Though learned counsel appearing for the petitioner argued that monthly income of the petitioner assessed by the learned Magistrate is excessive, on the evidence learned Magistrate was justified in taking the monthly income as Rs.6,000/-. So also fixing Crmc 1486/10 6 monthly amount payable to the first respondent, taking into consideration the capacity of the husband, status of the family and need of the first respondent at Rs.2,000/- p.m is perfectly in order. 5. But there is force in the submission of the learned counsel appearing for the petitioner that fixation of the fair and reasonable provision assessing the monthly income, computing for a period of ten years is excessive. Considering the age of the first respondent and all other relevant considerations, the reasonable provision should have been fixed computing the monthly amount for a period of seven years. To that extent, fair and reasonable provision awarded by the learned Magistrate warrants interference. 6. When the learned Magistrate has Crmc 1486/10 7 fixed the monthly maintenance at the rate of Rs.2,000/- p.m maintenance during the iddath period can only be Rs.6,000/- p.m instead of Rs.4,500/- as awarded by the learned Magistrate. To that extent also Annexure-A1 order warrants interference. Petition is allowed in part. Quantum of fair and reasonable provision fixed by Judicial First Class Magistrate-IV, Kozhikode in M.C.2/2006 as confirmed in Crl.R.P.109/2008 and Crl.R.P.136/2008 is modified to Rs.1,68,000/- from Rs.2,40,000/-. The quantum of maintenance for the iddath period is fixed at Rs.6,000/-. Petitioner is directed to pay the total amount of Rs.1,74,000/- to the first respondent. M.SASIDHARAN NAMBIAR, JUDGE. uj.