High Court Kerala High Court

C.K.Masood vs Subaida on 9 September, 2009

Kerala High Court
C.K.Masood vs Subaida on 9 September, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 195 of 2008()


1. C.K.MASOOD, AGED 41 YEARS,
                      ...  Petitioner

                        Vs



1. SUBAIDA, D/O. A.K.MUHAMMED HAJI,
                       ...       Respondent

2. STATE -REPRESENTED BY PUBLIC PROSECUTOR,

                For Petitioner  :SRI.M.SASINDRAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :09/09/2009

 O R D E R
              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.