IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 Crl.MC.No. 195 of 2008() ---------------------------------- CRRP.43/2004 of SESSIONS COURT, KASARAGOD MC.28/2000 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... PETITIONER/REVN. PETITIONER/RESPONDENT ------------------------------------------------------------------- C.K. MASOOD, AGED 41 YEARS, S/O. ABOOBAKER, SEENATH MANZIL, THALAPPADI P.O., KARNATAKA STATE. BY ADV. MR.M.SASINDRAN MR.K.P.HARISH RESPONDENT/ RESPONDENT/PETITIONER ------------------------------------------------------------- 1. SUBAIDA, D/O. A.K.MUHAMMED HAJI, GUNDIYOOR HOUSE, PATHUR VILLAGE, P.O.PATHUR, KASARAGOD TALUK, KASARAGOD DISTRICT. 2. STATE -REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.AMJAD ALI. R1 B Y ADV. MR.K.ANAND. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 195 OF 2008 ------------------------------------------ Dated 9th September 2009 O R D E R Petitioner is the respondent in M.C.28/2000 on the file of Chief Judicial Magistrate, Kasargod and revision petitioner in Crl.R.P.43/2004 on the file of Sessions court, Kasargod. Admittedly marriage of the petitioner and first respondent was solemnised on 22/5/1995 as per the religious customs and ceremony and they were living as husband and wife and in that wed lock two children were born. Subsequently one of the children died. Respondent filed M.C.28/2000 under Section 3(1) of Muslim Women (Protection of rights on Divorce) Act contending that petitioner pronounced talaq on 5/2/2000 and thereby she is a divorced wife and petitioner did not return mahr or the gold ornaments and did not make any fair and resonable provision and also did not pay maintenance for the Iddat period, she sought Rs.5,000/- as maintenance for Iddat period and Rs.2,00,000/- as fair and reasonable provision for her future maintenance and CRMC 195/08 2 also claimed return of Rs.30,000/-, allegedly paid by her father and also return of one sovereign of gold paid as mahr and value of 25 sovereign of gold ornaments taken by petitioner. Petitioner resisted the petition contending that respondent is not the divorced wife and there was no divorce at all and no talaq was pronounced. It is contended that talaq nama executed on 14/4/1999 was not witnessed by any one and talaq did not come into effect and in any case, first respondent is not entitled for maintenance for Iddat period as she has not performed the iddat and she is in a sound financial position and more than Rs.1,00,000/- was given to the father of first respondent and she is not entitled to any further amount. Learned Magistrate, on the evidence of first respondent and her witness and Exts.P1 to P6 and that of the petitioner and RW2 to RW4 and Exts.D1 and D2, found that there was a divorce by talaq and first respondent is the divorced wife of the petitioner and he did not pay maintenance for the Iddat period or made or paid fair and reasonable provision or return the mahr and directed petitioner to pay maintenance of Rs.5,000/- for the Iddat period, Rs.20,000/- being the amount received at the CRMC 195/08 3 time of marriage from the father of petitioner and value of gold ornaments belonging to first respondent, in addition to Rs.Two Lakhs being the fair and reasonable provision. He was directed to pay total sum of Rs.3,34,600/-. Petitioner challenged that order before sessions court in Crl.R.P.43/2004. Learned Sessions Judge on re-appreciation of evidence found that there was a valid talaq and first respondent is the divorced wife of the petitioner and he is liable to pay maintenance for the Iddat period as well as fair and reasonable provision and also liable to return the gold ornaments and Rs.30,000/- received from the father of first respondent and upheld the quantum fixed by the learned Magistrate. Revision petition was dismissed. This petition is filed under Section 482 of Code of Criminal Procedure, evidently as no second revision is not maintainable. 2. Learned counsel appearing for petitioner and learned counsel appearing for first respondent were heard. 3. Learned counsel appearing for the petitioner pointed out that though learned Magistrate and learned Sessions Judge relied on the evidence of CRMC 195/08 4 PW2, the office bearer of the mosque, to show that there was pronouncement of talaq and hence first respondent is a divorced wife, fact that subsequently PW2 had written a letter to the court stating that the evidence tendered earlier is not correct and there was no talaq was not properly appreciated. Argument of the learned counsel is that in the light of that letter and the assertion made, when he was subsequently recalled and examined it should have been found that as no valid talaq was established, petition should have been dismissed as first respondent is not a divorced wife. It is also argued that there is no evidence to prove that first respondent had performed Iddat as it is admitted that she had attended the court during that period and in such circumstances, maintenance awarded for Iddat period is unsustainable. Learned counsel also argued that in any case, fair and reasonable provision awarded by the courts below is excessive. 4. Learned counsel appearing for first respondent argued that learned Magistrate and learned Sessions Judge properly appreciated the evidence and there is no reason to interfere with the orders. 5. Though learned counsel appearing for CRMC 195/08 5 petitioner argued that there was no talaq and fist respondent continued to be the wife of petitioner and therefore, she is not entitled to file a petition under Section 3(1) of the Act as a divorced wife, learned Magistrate and learned Sessions Judge on proper appreciation of evidence found that there was a valid talaq and petitioner divorced first respondent on 5/2/2000 by talaq. Learned Magistrate has relied on Ext.P4, admittedly a letter written by the petitioner himself, admitting that he had an intention to divorce the first respondent. Learned Magistrate apart from relying on the evidence of PW1, relied on the evidence of PW2. Argument of the learned counsel is that even though PW2 corroborated the evidence of PW1, in the light of a subsequent letter written to the learned Magistrate that evidence earlier tendered is not correct, the evidence of PW2 is to be ignored. I cannot agree with the submission. Unfortunately, learned Magistrate did not take action against PW2, in spite of the fact that he had addressed the Magistrate admitting the perjury. Whatever it be, based on a letter subsequently sent to the court that evidence tendered earlier is under the influence of one of the parties, CRMC 195/08 6 it is not possible to challenge the version. If PW2 could be compelled to tender evidence, he could definitely be compelled to sent a letter later on. Whatever it be, based on proper appreciation of evidence courts below found that there was a valid talaq and hence first respondent is the divorced wife. I find no reason to interfere with that factual finding. If that be so, so long as the provisions provided under Section 3(1) were not made or paid at the time of talaq, first respondent, being the divorced wife is entitled to the benefits available under Section 3(1) of the Act. 6. Though it was argued that first respondent did not perform Iddat, evidence of PW1 accepted by the learned Magistrate and learned Sessions Judge establish that she had performed the Iddat. In the light of that factual finding, I find no reason to interfere with the findings of courts below that first respondent is entitled to get maintenance for the Iddat period. The quantum of Rs.5,000/- is only reasonable, in the light of the evidence. 7. Learned Magistrate and learned Sessions Judge found that petitioner has sufficient means CRMC 195/08 7 and based on the evidence fixed fair and reasonable provision. There is no reason to interfere with that factual findings also. That is also the case with regard to the direction to pay value of gold ornaments belonging to first respondent and return of the money received at the time of marriage. In such circumstances, exercising the powers under Section 482 of Code of Criminal Procedure, I find no reason to interfere with the order passed by the learned Magistrate as confirmed by learned Sessions Judge. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.