IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 Crl.MC.No. 327 of 2006() ------------------------ CRRP.3/1998 of I ADDL. SESSIONS COURT, KOLLAM MC.11/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... PETITIONER(S): COUTNER PETITIONER. ---------------------------------- NIZAMUDEEN, S/O.SAINUDEEN, NIZAM MANZIL, IRAKKUZHI MURI, CHITHARA VILLAGE, KOTTARAKKARA KOLLAM. BY ADV. SRI.K.ABDUL JAWAD RESPONDENT(S): PETITIONERS. --------------------------- 1. SHYLA BEEGUM, D/O.SHAMSUDEEN, IRASHAD MANZIL, VELLARI MURI, NILAMEL VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.RAJENDRAN FOR R1 PUBLIC PROSECUTOR SRI .P. RAVINDRA BABU -R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN CRL.M.A. NO. 559 OF 2006 IN CRL. M.C. NO.327 OF 2006 DISMISSED 23.3.2009 Sd/-(C.T. RAVIKUMAR, JUDGE) C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M..C. NO. 327 OF 2006 -------------------------------------------- Dated this the 23rd day of March, 2009 O R D E R The petitioner herein was the counter petitioner and the first respondent herein was the petitioner in M.C. No.11 of 1996 on the file of the Judicial First Class Magistrate's Court II, Kottarakkara. That was a proceeding instituted under Section 3 of the Muslim Women (Protection of Right on Divorce) Act, 1986(hereinafter referred to as “the Act”). 2. The marriage between the petitioner herein and the first respondent was solemnised on 14.2.1993 according to Muslim religious rites. According to the first respondent/wife, she was deserted by the petitioner and subsequently divorced by pronouncing triple talaq. Initially, the maintainability of the petition under Section 3 of the Act was raised by the petitioner herein. Later, he himself admitted the fact that he had pronounced triple talaq and thus virtually admitted the divorce. Therefore, the court below rightly proceeded with the matter holding that the petition filed by the first respondent/wife under Section 3 of the Act is maintainable. CRL. M.C. NO.327/2006 2 3. The trial court formulated eight points for its consideration and ultimately as per Annexure-A order found that the petitioner therein/first respondent/wife is entitled to get back an amount of Rs.22,000/- as claimed in the petition. Though she had claimed return of 50 sovereigns of gold ornaments, the trial court found that the petitioner herein is liable to return only 31 sovereigns of gold ornaments, two wrist watches and one pen. The wife had further claimed an amount of Rs.2, 00,000/- as reasonable and fair provision from the petitioner herein, but only an amount of Rs.50,000/- was fixed as reasonable and fair provision to be awarded to her. The claim of the first respondent/wife for an amount of Rs.3,000/- at the rate of Rs.1,000/- for three months for observing iddat was resisted by the petitioner herein. According to him, she was not subjected to menstruation and hence not entitled to claim the said amount. However, the trial court placed reliance on Section 2 of the Act and found that the first respondent/wife is entitled for the amount claimed. The trial court held that even if she is not subjected to menstruation, the first respondent/wife is entitled to claim the amount for three lunar months viz. the period during which she was prohibited from remarrying. Accordingly, it was found that the first respondent/wife is entitled for an amount of Rs.3,000/- for observing iddat for a period of three lunar CRL. M.C. NO.327/2006 3 months. The respondent/wife had also claimed an amount of Rs.50,000/- which, according to her, was handed over as acharam by her father viz. PW.5 to CPW.2, the father of the petitioner herein. Relying on the evidence of PWs.1 to 5 and CPWs.1 to 3, the trial court held that the first respondent/wife is entitled for return of the said amount of Rs.50,000/-. 4. Annexure-A judgment of the trial court was challenged by the petitioner herein in Crl. R.P. No. 3 of 1998 before the 1st Additional Sessions Court, Kollam. In the Crl. R.P., the petitioner herein had not chosen to challenge the directions of the trial court in so far as it relates to the return of Rs.22,000/- and return of gold ornaments worth 31 sovereigns. In respect of the other claims, specific points were framed for consideration in the Revision Petition. The revisional court vide Annexure-B judgment found all the said points against the revision petitioner and accordingly confirmed the order of the trial court. It is the said judgment that is under challenge in this Crl. Miscellaneous Case. 5. In view of Annexure-A order and Annexure-B judgment, learned counsel for the petitioner fairly did not advance any argument regarding the maintainability of the petition filed by the first respondent/wife under Section 3 of the Act. The direction to return an amount of Rs.22,000/- CRL. M.C. NO.327/2006 4 and 31 sovereigns of gold ornaments are also not challenged. Therefore, the scope of argument in this case is confined only in respect of the return of Rs.50,000/- given as acharam, Rs.3,000/- as maintenance for observing iddat and fixation of an amount of Rs.50,000/- as reasonable and fair provision as contemplated under Section 3 of the Act. 6. Learned counsel for the petitioner contends that the finding of the trial court in regard to the liability of the petitioner to return an amount of Rs.50,000/- given as acharam and confirmed by the revisional court is wholly unjustified. According to the counsel, there was no cogent and conclusive evidence to prove that such an amount was handed over as acharam by PW.5, the father of the first respondent/wife to CPW.2. Handing over of such an amount is totally denied by the petitioner herein. The first respondent herein was examined as PW.1 during trial. She has specifically deposed that an amount of Rs.50,000/- was handed over by her father as acharam to the father of the petitioner/husband. The father of the first respondent who was examined as PW.5 fully corroborated the said version. PW.2 was the broker who arranged the marriage. PW.3 is a person who had participated in the acharam function as also the marriage. On an appreciation of their oral testimonies, the trial court arrived at a conclusion that an amount of Rs.50,000/- must have been handed over as CRL. M.C. NO.327/2006 5 acharam. The trial court had also taken note of the oral evidence of CPW.3. In this context, it is to be noted that though CPW.2, the father of the petitioner herein, had denied the receipt of any amount as acharam, he had admitted that about 20 persons from the side of the first respondent/wife had participated in the function arranged at his residence on the date of acharam. According to CPW.3, it was declared at the function that the parties had come to terms and that they were not willing to declare that matter to the persons who had assembled at the function. During cross-examination, CPW.3 had admitted that he was not aware of any acharam having been handed over by the father of the first respondent/wife. 7. PW.6 was the Secretary of the Juma ath Committee. He was examined to prove Ext.P1. According to him, the Juma ath Committee was put in a helpless position as the petitioner herein was not willing to return the amount as also the gold ornaments and that it was in the said circumstances, he had written Ext.P1 reply. It was after evaluating the said oral and documentary evidence that the trial court arrived at the conclusion that the versions of the first respondent/wife is more probable and believable and accordingly, it was held that the father of the first respondent herein had handed over an amount of Rs.50,000/- as acharam CRL. M.C. NO.327/2006 6 during the acharam function and, therefore, the first respondent herein/wife, the divorced woman is entitled to get back the same from the petitioner herein. 8. A perusal of Annexure-B judgment would reveal that the court had considered the matter in detail. After a careful analysis of the facts and circumstances, the revisional court entered the finding that there is no impropriety in the findings of the trial court regarding the return of Rs.50,000/- received as acharam by the petitioner herein to the first respondent/wife. As stated earlier, the contention of the petitioner in this Crl. M.C. is that the evidence in this regard is not cogent and convincing. It is common knowledge that in such matrimonial cases, usually oral evidence alone will be available. The question is, how far the evidence of the witnesses can be believed to arrive at a conclusion in such matters. In this case, as already stated, the first respondent herein got herself examined as PW.1, her father was examined as PW.5 and the broker who arranged the marriage and another person who had attended the acharam function were examined as PWs.2 and 3 respectively. They corroborated the version of PW.1. Add to it, the depositions of CPW.2 and CPW.3 probabilise the version of PW.1 as believable and true. It is obvious from all these evidences put together that acharam function was organised at the CRL. M.C. NO.327/2006 7 residence of the petitioner herein and some monetary transaction had taken place. In these circumstances, I cannot hold that the conclusion arrived at by the trial court and confirmed by the revisional court regarding the liability of the petitioner herein to return an amount of Rs.50,000/- received by him by way of acharam is perverse warranting interference of this Court. In fact, nothing was brought out to discredit the versions of PWs.1 to 5. In the circumstances, the findings of the courts below in this regard is only to be upheld. 9. With regard to the quantum of amount claimed by the first respondent/wife as maintenance during the Iddat period, learned counsel for the petitioner contended that she is not entitled for the said amount as she was not subjected to menstruation. The said contention raised was rightly repelled by the trial court as also the revisional court. The term iddat period is clearly defined under sub-section(b) of Section 2 of the Act. It means, in the case of a divorced woman (i) three menstrual courses after the date of divorce if she is subjected to menstruation, (ii) three lunar months after her divorce if she is not subjected to menstruation. Going by the definition itself, the contention of the learned counsel for the petitioner is only to be ignored. Even if the contention that the first respondent/wife is not subjected to menstruation is accepted, that would not disentitle her CRL. M.C. NO.327/2006 8 to claim the said amount of Rs.3,000/- for observing iddat for a period of three lunar months after the date of divorce. In the circumstances, the trial court as also the revisional court rightly held that the first respondent/wife is entitled to claim maintenance for observing iddat for a period of three lunar months at the rate of Rs.1,000/- per month. The direction to pay Rs.3,000/- to the first respondent/wife for observing iddat period is not liable to be interfere with. 10. The fixation of Rs.50,000/- to be given to the first respondent/wife as reasonable and fair provision under Section 3 of the Act was challenged on various grounds. The criteria for awarding the said amount is laid down under Section 3 of the Act. As per the said section, a sum which is reasonable and fair provision and maintenance should be determined as fit and proper having due regard to the (i) needs of the divorced woman, (ii) standard of living enjoyed by her during the period of marriage and (iii) means of her former husband. In this context, learned counsel for the petitioner contended that there is no pleadings regarding the needs of the first respondent/wife as also the standard of life enjoyed by her during her marriage. The petitioner herein during his examination deposed that he used to get Rs.75/- from the parallel college in which he was working. Counsel resisted the claim contending that the first CRL. M.C. NO.327/2006 9 respondent herein is not in need of any amount as she hails from a financially affluent family and, therefore, she is able to maintain herself. The trial court after considering the decision placed before it in Kunjahamed Haji v. Amina, reported in 1995(1) K.L.T. 765 entered into a finding that the dictum laid down in the said decision will not exonerate the petitioner herein from paying reasonable and fair provision to the divorced wife on the ground that she is having independent livelihood as in the case of a claim under Section 125 Cr.P.C. The trial court rightly held that the very object of the Act is to protect th interest of the divorced Muslim woman and to save her from destitution and penury. 11. After a proper evaluation of the evidence adduced in this case, the trial court found that the need of the first respondent herein and the standard of life enjoyed by her during the subsistence of her marriage with the petitioner herein as also the means of the petitioner could easily be asserted and it was after arriving at such a finding that the trial court held that the first respondent/wife is entitled for an amount of Rs.50,000/- as reasonable and fair provision. The revisional court had also considered the matter in detail. It was after arriving at a finding regarding the financial capacity of the petitioner herein that the courts below entered into a reasonable conclusion in the matter of fixation of an amount of Rs.50,000/- CRL. M.C. NO.327/2006 10 as reasonable and fair provision. Though I was taken through the findings in relation to the said aspect made by the trial court as also the revisional court, I found nothing warranting interference by this Court. The finding of the trial court was confirmed by the revisional court fully realizing the intent and objects of the Act. The essential elements required to be satisfied before granting reasonable and fair provision could easily be gathered by looking into the evidence in this case. When such materials are available, it would defeat the very intent and purpose of the Act if the claim is rejected on the ground that pleadings are lacking regarding the needs of the wife and also the standard of life enjoyed by her during her marriage. Therefore, the finding of the trial court, as confirmed by the revisional court in this aspect also requires no interference. 12. In the light of the discussions made above, I am of the view that Annexure-A order as confirmed by Annexure-B judgment requires no interference and the Crl. M.C. is liable to be dismissed. 13. While admitting the above Crl. M.C., an interim order was passed by this Court in Crl. M.A. No. 559 of 2006. It was a conditional order requiring the petitioner to effect payment of an amount of Rs.1,00,000/- before the court below within one month from 3.2.2006. It CRL. M.C. NO.327/2006 11 is submitted by the learned counsel for the petitioner that the said amount has been deposited . It is to be noted that the amount covered by Annexure-A order and Annexure-B judgment is Rs.1,25,000/-. Since an amount of Rs.1,00,000/- has already been deposited before the court below, the petitioner herein is entitled to pay only the balance amount of Rs.25,000/-. With regard to the return of 31 sovereigns of gold ornaments and Rs.22,000/-, no challenge was raised before the revisional court or this Court. Therefore, it is needless to say that the petitioner herein is also liable to return 31 sovereigns of gold ornaments or its value as also Rs.22,000/-, as directed by the trial court. The Crl. M.C. is accordingly dismissed. (C.T. RAVIKUMAR, JUDGE) sp/ CRL. M.C. NO.327/2006 12 C.T. RAVIKUMAR, J. CRL. M.C. NO. 327/2006 O R D E R 23rd March, 2009