IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3900 of 2008() ------------------------------ MC.25/2002 of J.F.C.M.II, PARAPPANANGADI .................... REVN. PETITIONER/PETITIONER: -------------------------------------- SAINABA, AGED 23, D/O.KASHUNGUM THOTATHIL KUNHIKAMU, MALAPARAMBIL HOUSE, P.O.OLAKARA, OLAKARA AMSOM, PERUVALLUR DESOM, MALAPPURAM DISTRICT. BY MR.K.T.SHYAMKUMAR, ADVOCATE MR.HARISH R. MENON, ADVOCATE RESPONDENTS/COUNTER PETITIONER: --------------------------------------------- 1. P.Y.UMMER, AGED 30, S/O.MUHAMMAD, PUTHAN PEEDIAKKAL HOUSE, P.O.VENGARAPALLI, CHELAKKARA, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-KOCHI-31. BY PUBLIC PROSECUTOR MR.P.R.JAYAKRISHNAN FOR R2 MR. BABU S. NAIR, ADVOCATE FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2009, ALONG WITH CRMC NO.3461 OF 2008, THE COURT ON THE SAME DAY, PASSED THE FOLLOWING: P.S.GOPINATHAN,J. ========================= Crl.R.P.No.3900 of 2008 & Crl.M.C.No.3461 of 2008 ========================== Dated this the 9th day of December, 2009 ORDER Both these proceedings are challenging the order in Crl.R.P.45/2007 on the file of the Addl. Sessions Judge, Manjeri. Crl.R.P.45/2007 was filed by the counter petitioner in M.C.No.25/2002 on the file of the Judicial Magistrate of the First Class-II, Parappanangadi, assailing the order directing him to pay a sum of Rs.2,500/- towards the maintenance during the Iddat period and a sum of Rs.1,00,000/- towards the fair and reasonable provision to be paid to the petitioner before the trial court under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act. Petitioner was married by the counter petitioner on 10.9.1995. Parties are referred to as in M.C.25/2002. On 26.09.2000, divorce was granted by the family court as per order in O.P.No.17/2000. Thereupon, the petitioner filed the above petition before the trial court seeking an order to grant Rs.6,000/- as maintenance during the iddat period and a sum of Rs.2,00,000/- towards reasonable and fair provision. She Crl.R.P.No.3900/2008 & Crl.M.C.No.3461/2008 2 had also claimed Rs.2,73,000/- towards value of 50 sovereigns of gold ornaments and Rs.1,00,000/- paid at the time of marriage. 2. Counter petitioner objected the petition stating that he had not taken any gold ornaments or received any money belonging to the petitioner and that the order granting divorce is an ex parte one and that the amount claimed is exorbitant and that the petitioner is not entitled to get any amount as claimed and that he is only a hotel worker. 3. During the enquiry, the petitioner and two others were examined as PWs.1 to 3 and Ext.P1 was marked. On the side of the counter petitioner, CPWs. 1 to 3 were examined. The trial court on evaluation of the evidence, arrived at a finding that the petitioner has not succeeded to establish that any gold ornaments or money belonging to her was appropriated by the counter petitioner. Towards maintenance, during the iddat period, a sum of Rs.2,500/- was awarded. Towards reasonable and fair provision, a sum of Rs.1,00,000/- was granted. 4. Assailing the said order, the counter petitioner preferred Crl.R.P.45/2007. The petitioner did not challenge that order. The learned Sessions Judge by an order dated 4.07.2008 Crl.R.P.No.3900/2008 & Crl.M.C.No.3461/2008 3 dismissed the revision petition. 5. Assailing the legality, correctness and propriety of that order, the petitioner had preferred Crl.R.P.No.3900/2008. Since the order in revision being one confirming the order granted by the trial court and the petitioner had not chosen to challenge the same in revision, she would not get a fresh cause of action to challenge the order dismissing Crl.R.P.No.45/2007. Hence, R.P.3900/2008 is not sustainable. 6. Assailing the order in revision, the counter petitioner had preferred Crl.M.C.No.3461/2008. The grievance is regarding the quantum. The learned counsel for the revision petitioner would submit that the revision petitioner is a coolie in a hotel and that within two years after the divorce the petitioner remarried and that the amount calculated by the trial court and confirmed in appeal is without any basis without taking into account the income of the respondent and the amount confirmed by the Additional Sessions Judge is unconceivable, erroneous and not justified. 7. Having heard either side, I find that there is a little merit in the submission made by the learned counsel for the Crl.R.P.No.3900/2008 & Crl.M.C.No.3461/2008 4 petitioner. In arriving at a calculation regarding the reasonable and fair provision, the trial court as well as the Additional Sessions Judge had not taken into account either the income of the counter petitioner or the requirements of the petitioner. Neither the period between the divorce and remarriage was also taken into account. Amount was calculated without any basis. Time gap between divorce and remarriage is just two years. Taking into account of the status of the parties amount ordered is exorbitant and beyond the means of the counter petitioner. In this way, I find that reasonable and fair provision granted by the trial court as confirmed in revision is vitiated. Interest of Justice demands interference. Taking into account the status of the parties, I find that to determine the reasonable and fair provision the monthly requirements of the petitioner can be determined at Rs.2,000/- (Rupees two thousand only) and it can be capitalised for a period of two years. If calculated so, it would come to Rs.48,000/- (Rupees forty eight thousand only) and is rounded to Rs.50,000/- (Rupees fifty thousand only). I find that the said amount would be reasonable and fair provision. Crl.R.P.No.3900/2008 & Crl.M.C.No.3461/2008 5 8. In the result, Crl.R.P.3900/2008 is dismissed. Crl.M.C.3461/2008 is allowed in part. The reasonable and fair provision to be paid by the counter petitioner is reduced to Rs.50,000/- (Rupees fifty thousand only) from Rs.1,00,000/- (Rupees one lakh only). As per the order in Crl.M.A.No.4928/2008 dated 09.09.2008, this Court directed the respondent to remit an amount of Rs.50,000/- (Rupees fifty thousand only) within two months. Thereafter, one month's time was granted for depositing the amount. In the event that amount is not deposited on or before 28.12.2008, it would bear interest at the rate of 9% per annum from 28.12.2008. In all other respects order of the trial court is confirmed. P.S.GOPINATHAN, JUDGE. dvs