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.
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CRL.M.C.NO. 195 OF 2008
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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.