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2013 Supreme(Ker) 63

High Court of Kerala
K. RAMAKRISHNAN, J.

Hussain Punathil
Versus
Fathima & Another
Crl. MC. No. 210 of 2008
Decided On : 08-02-2013

Advocates Appeared:
For the Petitioner:P.K. Ramkumar, Mrs. Anitha Menon, Advocates.
For the Respondents:R1, Thomas Antony, Advocate, R2, Liju V. Stephen, Public Prosecutor.

Headnote:

Personal laws - Muslim law - Muslim Women (Protection of Rights on Divorce) Act, 1986 - Section 3 - Mahr or other properties of Muslim woman to be given to her at the time of divorce - Claiming an amount as maintenance during Iddat period as fair and reasonable provision for future maintenance and also claiming the value of mahar - It is alleged in petition that the marriage between petitioner and respondent was solemnized as per customary rites and they were living together as husband and wife and three children were born to them in relationship - Thereafter petitioner divorced her by pronouncing talaq by giving letter thereafter, no maintenance during Iddat period or fair and reasonable provision or value of mahar, had been paid as provided under Act - Held, It is status of parties as on date of divorce that has to be considered for ordering fair and reasonable provision to divorced wife - It is not necessary that divorced wife must be unable to maintain herself before she claims amounts under Section 3 of Act - Former husband of divorced woman is liable to make reasonable and fair provision for her livelihood, even for post Iddat period, apart from his liability to pay maintenance during Iddat period - But social status, financial capacity and potential of couple, at or during time of divorce is main aspect to reckoned in fixing quantum of fair and reasonable provision under Section3 of Act.

Judgment :

1. This is a petition filed under Section 482 of the Code of Criminal Procedure by the defeated respondent in Criminal RP Nos.44/06 on the file of the First Additional Sessions Judge, Kozhikode.

2. The petition was filed by the divorced wife of the petitioner herein before the Magistrate’s Court under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act). Claiming an amount of Rs.30,000/- as maintenance during Iddat period, Rs.10 lakhs as fair and reasonable provision for future maintenance and also claiming the value of mahar. It is alleged in the petition that the marriage between the petitioner herein and the respondent was solemnized as per the customary rites on 15.05.1983 and they were living together as husband and wife and three children were born to them in the relationship. Thereafter, the petitioner herein divorced her by pronouncing talaq by giving Ext.P1 letter dated 9.3.2005. Thereafter, no maintenance during Iddat period or fair and reasonable provision or value of mahar, had been paid as provided under the Act. So, she filed a petition under the provisions of the Act, claiming the reliefs mentioned above.

3. The respondent appeared and filed a counter affidavit, denying the allegations in the petition and also narrated the circumstances, which led the petitioner herein to divorce the petitioner before the lower court. He also contended that she is having a love affair with some other person and that had led to the divorce. It was also contended that as such, she is not entitled to get any maintenance during Iddat, as she did not observe Iddat or fair provision and the amount claimed is also excessive and he prayed for dismissal of the application.

4. The petitioner in the lower court was examined as PW1 and Ext.P1 was marked from her side. The counter petitioner in the lower court, who is the petitioner herein, was examined as CPW1 and Exts. D1 to D14 were marked from his side.

5. After considering the evidence, the learned Magistrate allowed the application in part. The claim for mahar and maintenance during the period of Iddat were rejected and the learned Magistrate ordered the respondent therein, who is the petitioner herein, to pay a sum of Rs.1,50,000/- to the petitioner as reasonable and fair provision for future maintenance of the petitioner in the lower court and also directed to pay the amount within one month from the date of the order.

6. Aggrieved by the rejection of certain claims and also the quantum of amount awarded, the petitioner in the lower court filed Criminal RP No.44/06 and aggrieved by the order directing to pay fair and reasonable provision, the respondent in the lower court, who is the petitioner herein, filed Criminal RP No.64/06 before the Sessions Court, Kozhikode. Both the petitions were heard together and disposed of by a common order, by the Additional Sessions Judge, Kozhikode, by which the revision filed by the petitioner herein was dismissed and Criminal RP No.44/06 filed by the divorced wife was allowed in part. The order of the lower court, denying maintenance during Iddat period was set aside and the amount of fair and reasonable provision was enhanced to Rs.2,10,000/-. He was also ordered to pay Rs.10,500/-as maintenance during the Iddat period. That is assailed before this court by filing this petition.

7. Though the petition was filed challenging the order in both the revisions, at the time of hearing, the learned counsel for the petitioner submitted that this petition is confined to the order in Criminal RP No.44/06 alone. The learned counsel for the petitioner also submitted that the revisional court was not justified in enhancing the amount fixing by the lower court and no reasons were given by the revisional court for the same and as such, the order is vitiated. He relied on the decision reported in Iqbal Bano v. State of UP (2007(6) SCC 785) for the said proposition.

8. On the other hand, the l































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