IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.MC.No. 4156 of 2008() ------------------------- CRL.R.P.NO.56/07 IN M.C.NO.32/02 OF THE JFCM COURT, KATTAKADA. PETITIONER(S): --------------- ABDUL HAKKIM, S/O.SULAIMAN PILLAI SULFATH BUNGLOW, OZHUKUPURA, REP. BY HIS P/AT. HOLDER, A.H.SAINULABDEEN, S/O.EASUKUNJU, M.E.K.MANZIL, PALLIVETTA, ARYANADU, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): --------------- 1. TAJUNISA BEEVI, D/O.BEEVIKUNJU V.K.HOUSE, KOTTOOR,KAPPUKADU, MANNOORKARA, NEDUMANGAD. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGHCOURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4156 of 2008 ------------------------------------------------- Dated this the 11th day of December, 2008 ORDER The petitioner in this Crl.M.C. challenges an order directing payment of an amount of Rs.2.89 lakhs under Sec.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act'). The learned Magistrate had initially directed payment of an amount of Rs.3.89 lakhs. In revision, the order was modified and the amount payable was reduced to Rs.2.89 lakhs. 2. Marriage and divorce are admitted. Liability to pay amounts under Sec.3 of the Act is also admitted. There is no serious dispute that an amount exceeding Rs..2.89 lakhs is liable to be paid on such divorce under Sec.3 of the Act. 3. What then is the dispute? The short and pointed dispute is that the amount payable has been paid and discharged. According to the petitioner, an amount of Rs.3.25 Crl.M.C. No. 4156 of 2008 -: 2 :- lakhs has already been paid to his divorced wife under Exts.D3 and D4. 4. It will be apposite to specifically note that at present the direction is to pay only an amount of Rs.2.89 lakhs under Sec.3 of the Act. According to the petitioner, as a matter of fact, Rs.3.25 lakhs was agreed to be paid and the same had been paid and discharged under Exts.D3 and D4. The matter is at the stage of admission. The respondents have not come before this Court to challenge the impugned order, it is submitted. 5. Be that as it may, the only question that is to be considered is whether Exts.D3 and D4 evidence discharge of the liability. The claimant – divorced wife, denies the receipt of any amount under Exts.D3 and D4. A perusal of Exts.D3 and D4 reveals the inherent improbabilities of Exts.D3 and D4. Ext.D3 is allegedly an agreement executed by the spouses under which payment of an amount of Rs.25,000/- in full settlement of the liability on divorce under Sec.3 of the Act is stipulated and acknowledged. Rs.7,500/- is to be agreed to be paid as maintenance during the period of Iddat. An amount of Rs.17,500/- was agreed to be paid as future maintenance. Thus, in all the amount payable was fixed at Rs.25,000/-. Payment was made and the same was acknowledged under Ext.D3. But Crl.M.C. No. 4156 of 2008 -: 3 :- significantly the claimant wife has not admittedly signed in Ext.D3. Going by the evidence relied on by the petitioner there was a talk of settlement. The wife was not prepared to accept the divorce and she had not executed Ext.D3. In these circumstances, Ext.D3 it is elementary cannot bind the claimant wife. 6. It is contended that the father of the claimant who was examined as P.W.2 had received the amount of Rs.3.25 lakhs. Rs.25,000/- was paid under Ext.D3 on 19/7/00; whereas a further amount of Rs.3 lakhs is said to be paid under Ext.D4 on 20/7/00. In both significantly the claimant wife has not signed. In both the father of the claimant/wife has affixed his signature; but only as a witness to evidence payment of amount to the wife. Significantly, there is no contention raised that the wife had received the amount. An attempt is now made to advance a contention that the father has received the amount and has signed Exts.D3 and D4 to acknowledge that payment. The contents in Exts.D3 and D4 cannot support this theory at all. 7. The father of the claimant/wife as P.W.2 explained that his signature was obtained under duress. The admitted evidence on the side of the petitioner is that there was a talk of settlement. An agreement was almost struck; but the wife Crl.M.C. No. 4156 of 2008 -: 4 :- refused to accept such agreement or the divorce and that is why the wife did not sign Exts.D3 and D4. 8. I must say that Exts.D3 and D4 are inherently incompatible. If Ext.D3 is correct, there is no liability to pay any further amount. Why an amount of Rs.3 lakhs has been paid under Ext.D4 later is not satisfactorily explained at all. In these circumstances, I am of opinion that the courts below were eminently correct and justified in coming to the conclusion that Ext.D3 and D4 does not discharge the liability of the petitioner under Sec.3 of the Act. The evidence of the witnesses examined by the petitioner who asserted that the father had received the amount on behalf of the claimant/wife is inconsistent with the contents of Exts.D3 and D4 documents relied on by the petitioner. Thus, the oral evidence is incongruent to Exts.D3 and D4. Exts.D3 and D4 are inter se incongruent. The evidence available is consistent with the theory advanced that the wife who refused to accept divorce did not receive any amount under Exts.D3 and D4. 9. I am, in these circumstances, satisfied that the courts below were eminently justified in coming to the conclusion that Exts.D3 and D4 cannot be pressed into service to conclude that the amount of Rs.3.25 lakhs was paid to discharge the liability Crl.M.C. No. 4156 of 2008 -: 5 :- under Sec.3 of the Act. 10. As stated earlier, there is no worthwhile dispute also about the quantum payable under the impugned order which is less than the amount that is claimed to have been paid under Exts.D3 and D4. 11. This Crl.M.C. is, in these circumstances, found to be without any merit. The same is dismissed. (R. BASANT, JUDGE) Nan/