IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4156 of 2008()
1. ABDUL HAKKIM, S/O.SULAIMAN PILLAI
... Petitioner
Vs
1. TAJUNISA BEEVI, D/O.BEEVIKUNJU
... Respondent
2. STATE OF KERALA, REP. BY THE PUBLIC
For Petitioner :SRI.M.SREEKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :11/12/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 4156 of 2008
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Dated this the 11th day of December, 2008
ORDER
The petitioner in this Crl.M.C. challenges an order
directing payment of an amount of Rs.2.89 lakhs under Sec.3 of
the Muslim Women (Protection of Rights on Divorce) Act, 1986
(for short ‘the Act’). The learned Magistrate had initially
directed payment of an amount of Rs.3.89 lakhs. In revision,
the order was modified and the amount payable was reduced to
Rs.2.89 lakhs.
2. Marriage and divorce are admitted. Liability to pay
amounts under Sec.3 of the Act is also admitted. There is no
serious dispute that an amount exceeding Rs..2.89 lakhs is
liable to be paid on such divorce under Sec.3 of the Act.
3. What then is the dispute? The short and pointed
dispute is that the amount payable has been paid and
discharged. According to the petitioner, an amount of Rs.3.25
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lakhs has already been paid to his divorced wife under Exts.D3
and D4.
4. It will be apposite to specifically note that at present the
direction is to pay only an amount of Rs.2.89 lakhs under Sec.3
of the Act. According to the petitioner, as a matter of fact,
Rs.3.25 lakhs was agreed to be paid and the same had been paid
and discharged under Exts.D3 and D4. The matter is at the
stage of admission. The respondents have not come before this
Court to challenge the impugned order, it is submitted.
5. Be that as it may, the only question that is to be
considered is whether Exts.D3 and D4 evidence discharge of the
liability. The claimant – divorced wife, denies the receipt of any
amount under Exts.D3 and D4. A perusal of Exts.D3 and D4
reveals the inherent improbabilities of Exts.D3 and D4. Ext.D3
is allegedly an agreement executed by the spouses under which
payment of an amount of Rs.25,000/- in full settlement of the
liability on divorce under Sec.3 of the Act is stipulated and
acknowledged. Rs.7,500/- is to be agreed to be paid as
maintenance during the period of Iddat. An amount of
Rs.17,500/- was agreed to be paid as future maintenance. Thus,
in all the amount payable was fixed at Rs.25,000/-. Payment was
made and the same was acknowledged under Ext.D3. But
Crl.M.C. No. 4156 of 2008 -: 3 :-
significantly the claimant wife has not admittedly signed in
Ext.D3. Going by the evidence relied on by the petitioner there
was a talk of settlement. The wife was not prepared to accept
the divorce and she had not executed Ext.D3. In these
circumstances, Ext.D3 it is elementary cannot bind the claimant
wife.
6. It is contended that the father of the claimant who was
examined as P.W.2 had received the amount of Rs.3.25 lakhs.
Rs.25,000/- was paid under Ext.D3 on 19/7/00; whereas a further
amount of Rs.3 lakhs is said to be paid under Ext.D4 on 20/7/00.
In both significantly the claimant wife has not signed. In both
the father of the claimant/wife has affixed his signature; but only
as a witness to evidence payment of amount to the wife.
Significantly, there is no contention raised that the wife had
received the amount. An attempt is now made to advance a
contention that the father has received the amount and has
signed Exts.D3 and D4 to acknowledge that payment. The
contents in Exts.D3 and D4 cannot support this theory at all.
7. The father of the claimant/wife as P.W.2 explained that
his signature was obtained under duress. The admitted
evidence on the side of the petitioner is that there was a talk of
settlement. An agreement was almost struck; but the wife
Crl.M.C. No. 4156 of 2008 -: 4 :-
refused to accept such agreement or the divorce and that is why
the wife did not sign Exts.D3 and D4.
8. I must say that Exts.D3 and D4 are inherently
incompatible. If Ext.D3 is correct, there is no liability to pay any
further amount. Why an amount of Rs.3 lakhs has been paid
under Ext.D4 later is not satisfactorily explained at all. In these
circumstances, I am of opinion that the courts below were
eminently correct and justified in coming to the conclusion that
Ext.D3 and D4 does not discharge the liability of the petitioner
under Sec.3 of the Act. The evidence of the witnesses examined
by the petitioner who asserted that the father had received the
amount on behalf of the claimant/wife is inconsistent with the
contents of Exts.D3 and D4 documents relied on by the
petitioner. Thus, the oral evidence is incongruent to Exts.D3
and D4. Exts.D3 and D4 are inter se incongruent. The
evidence available is consistent with the theory advanced that
the wife who refused to accept divorce did not receive any
amount under Exts.D3 and D4.
9. I am, in these circumstances, satisfied that the courts
below were eminently justified in coming to the conclusion that
Exts.D3 and D4 cannot be pressed into service to conclude that
the amount of Rs.3.25 lakhs was paid to discharge the liability
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under Sec.3 of the Act.
10. As stated earlier, there is no worthwhile dispute also
about the quantum payable under the impugned order which is
less than the amount that is claimed to have been paid under
Exts.D3 and D4.
11. This Crl.M.C. is, in these circumstances, found to be
without any merit. The same is dismissed.
(R. BASANT, JUDGE)
Nan/