IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2498 of 2007()
1. K.M.ASHARAF, S/O.MARAKKAR,
... Petitioner
Vs
1. REMIM K.UMMER, D/O.K.K.UMMERALI RAWTHER
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.M.K.ABOOBACKER
For Respondent :SRI.K.A.JALEEL
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/10/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 2498 OF 2007
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Dated this the 24th day of October, 2008
O R D E R
Revision is filed by the counter petitioner in M.C.4 of
2006 on the file of Judicial First Class Magistrate, Ettumanoor
challenging the order passed by learned Magistrate under
section 3 of the Muslim Women (Protection of Rights on Divorce)
Act, 1986 directing him to pay Rs.11,69,101/- being the
maintenance for the iddat period as well as for the fair and
reasonable provision. First respondent is the divorced wife of
the petitioner.
2. Learned counsel appearing for petitioner and first
respondent were heard .
3. Learned counsel appearing for petitioner pointed out
that the impugned order was passed without serving notice on
the petitioner and without affording opportunity to him to meet
the contentions raised by the first respondent. The records from
the Magistrate was called for. It is seen from the records that in
the petition filed by first respondent under section 3 of the Act,
notice was issued on 1.2.2005. But the notice was returned
CRRP 2498/07 2
unserved. Again notice was repeated. Finally on 27.1.2006
notice on the revision petitioner was found not served. Learned
Magistrate directed first respondent to take notice through the
Station House Officer, Aluva Town police station, either directly
or by affixture and posted the case to 22.4.2006. But on the very
next day the case was suo motu advanced and thereafter posted
the case for recording evidence to 25.5.2006 and thereafter
examined first respondent and her witnesses and finally passed
the impugned order. Though learned counsel appearing for first
respondent argued that as an order of attachment of the
immovable property was passed against the petitioner,
petitioner is to be imputed with the knowledge of the case,
records do not show that even in that attachment proceedings,
notice was served on the revision petitioner. Even the order of
attachment was not served on the revision petitioner. Revision
petitioner did not appear in that case at any stage. In such
circumstances, learned Magistrate himself found that notice was
not served and is to be served on the revision petitioner, either
directly or by affixture and directed first respondent to take
notice through Station House Officer. But on the very next day
the case was suo motu advanced without recording any reason
CRRP 2498/07 3
why notice ordered on the previous day was dispensed with and
why the case is to be disposed without serving notice on the
petitioner.
In such circumstances revision is allowed. The order
passed on 30.3.2007 without notice in M.C.4 of 2006 is set aside.
M.C. 4 of 2006 is remanded to Judicial First Class Magistrate,
Ettumanoor to dispose it afresh after granting opportunity to the
parties to adduce evidence. Petitioner and first respondent are
directed to appear before Judicial First Class Magistrate,
Ettumanoor on 27.11.2008. No fresh notice need be sent to the
petitioner. Send back the records immediately. Learned
Magistrate is directed to dispose the case expeditiously, at any
rate, within three months from 27.11.2008. Learned Magistrate
may also take into account, the amount which was allowed to be
withdrawn by first respondent pursuant to the order of this
Court, while passing the final order.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-