IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2979 of 2007()
1. M.M.MUHAMMAD, S/O.MYTHEEN,
... Petitioner
Vs
1. NABEESA, 43 YEARS, PARAKKAL,
... Respondent
2. STATE OF KERALA BY PUBLIC PROSECUTOR,
For Petitioner :SRI.N.ANILKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :17/10/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 2979 OF 2007
............................................
DATED THIS THE 17th DAY OF OCTOBER, 2008
ORDER
Petitioner is challenging the order passed by Judicial First
Class Magistrate, Kothamangalam in M.C.1 of 2006, whereunder
petitioner was directed to pay Rs.86,001/- to second respondent,
his dissolved wife under Section 3(2) of Muslim Women
(Protection of Rights on Divorce)Act. Admittedly, the marriage of
petitioner with second respondent was solemnised on 2.2.1992.
That marriage was subsequently dissolved on 13.10.1998. M.C.1
of 2006 was filed claiming maintenance for the Iddath period
and fair and reasonable provision.
2. Learned Magistrate, on the evidence, found that
petitioner is having sufficient income and first respondent is
entitled to maintenance at the rate of Rs.2000/- per month for
Iddath period. Learned Magistrate also found that first
respondent is entitled to the fair provision estimated at Rs.2000/-
per month for five years and also entitled to get Rs.101/- which
was paid as Mahr at the time of marriage. As it is proved that as
maintenance for the said period, petitioner paid Rs.37,000/-, that
amount was allowed to be deducted and petitioner was directed
CRRP 2979/2007 2
to pay the balance amount of Rs.86,001/- within one month from
the date of the order on 24.6.2007. Petitioner is challenging
the order in this revision petition.
3. Learned counsel appearing for petitioner and first
respondent were heard. Learned counsel appearing for
petitioner vehemently argued that evidence of petitioner as
CPW1 establish that Rs.30,000/- was paid at the time of Talak as
reasonable provision for future maintenance of the dissolved
wife and learned Magistrate was not justified in not deducting
that amount. Learned counsel appearing for first respondent
submitted that there is absolutely no evidence to prove the
disputed payment of Rs.30,000/- and in such circumstances,
there is no reason to interfere with the order passed by learned
Magistrate.
4. It is admitted case that even during 1993, first
respondent has filed a petition before Magistrate Court, claiming
maintenance under Section 125 of Code of Criminal Procedure
and petitioner was directed to pay maintenance. That liability
and payment continued even after 13.10.1998, the date of Talak.
In fact, O.P.300 of 1999, evidenced by Ext.D3 order passed by
the Family Court was subsequent to the Talak. Ext.D3 shows
CRRP 2979/2007 3
that M.C.380 of 1993 was originally filed before Magistrate
Court, claiming maintenance under Section 125 of Code of
Criminal Procedure. It is during the subsistence of that order
directing petitioner to pay maintenance under Section 125 of
Code of Criminal Procedure, the Talak was effected. Case of the
petitioner is that Rs.30,000/- was paid as reasonable and fair
provision at the time of Talak. But there is no evidence to prove
such payment. First respondent has denied the receipt of any
such amount. As rightly argued by learned counsel appearing for
first respondent, when the relationship between the parties were
strained and an order of maintenance was passed by the learned
Magistrate, compelling petitioner to pay maintenance and
meanwhile the marriage was dissolved on 13.10.1998, it cannot
be believed that petitioner would pay Rs.30,000/- as reasonable
and fair provision for his divorced wife at the time of Talak
without getting acknowledgment in writing. In the absence of
any other evidence, learned Magistrate rightly found that
petitioner did not pay Rs.30,000/- as fair and reasonable
provision. On the evidence, there is no reason to interfere with
that finding.
5. Learned Magistrate awarded a reasonable and fair
CRRP 2979/2007 4
provision estimating maintenance for the period of five years. In
such circumstances, there is no reason to interfere with the
quantum also. Hence, revision is only to be dismissed. Learned
counsel appearing for petitioner then submitted that when the
revision was admitted, petitioner was directed to deposit
Rs.30,000/- before learned Magistrate and it was deposited and
by subsequent order this court permitted first respondent to
withdraw that amount and only the balance remains and
petitioner may be permitted to pay the balance amount in
instalments. Petitioner is permitted to pay the balance amount
in five equal monthly instalments, starting from 1.11.2008.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-