IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 447 of 2007()
1. PALLITHOTTUKA ABDUL AZEEZ, AGED 56 YEARS
... Petitioner
Vs
1. KADANNOLI AYSHA, AGED 45 YEARS,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.C.KHALID
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :21/02/2007
O R D E R
R. BASANT, J.
- - - - - - - - - - - - - - - - - - - - - -
Crl.M.C.No. 447 of 2007
- - - - - - - - - - - - - - - - - - - - - -
Dated this the 21st day of February, 2007
O R D E R
The petitioner assails a revised direction issued under Section
3(1) of the Muslim Women (Protection of Rights on Divorce) Act in
this petition under Section 482 Cr.P.C.
2. Marriage is admitted. Divorce is also admitted. That no
amount has been paid under Section 3(1) of the Act is also without
dispute. The courts below concurrently came to the conclusion that
the petitioner is liable to pay amounts to the claimant/divorced wife
as maintenance during the period of Iddat and as reasonable and fair
provision for the future. While the learned Magistrates quantified
the amount at Rs.42,500/- (i.e. Rs.1,750 x 3 as maintenance during
the period of Iddat and Rs.40,000/- being consolidated amount of
reasonable and fair provision), the learned Sessions Judge
indulgently modified and reduced the quantum which is liable to be
paid. Taking into account all the circumstances, the learned Sessions
Judge held that an amount of Rs.1,500/- (500 x 3) as maintenance
Crl.M.C.No. 447 of 2007 2
during the period of Iddat and an amount of Rs.25,200/- (7 years x 12
months x 300) will be fair and reasonable.
3. The petitioner has come to this Court to assail the said modified
direction. It is contended that no amount should have been directed to be
paid at all considering the means of the petitioner and state of his health. At
any rate, the quantification is perverse, it is further contended.
4. I must alertly remind myself of the nature, quality and contours of
jurisdiction of this Court when challenge is raised against the concurrent
finding that the petitioner is liable to pay amounts under Section 3(1) of the
Act. Jurisdiction under Section 482 Cr.P.C. is an extra ordinary inherent
jurisdiction. Has there been failure/miscarriage of justice? This is the
mantra to be followed by Court. Errors committed in facts or in the
appreciation of evidence will not persuade this Court to interfere with the
concurrent finding that the petitioner is liable under Section 3(1) of the
Act. The crucial question to be considered is, has there been failure of
justice?
5. It was a unilateral divorce after about 18 years of marital life,
though the petitioner would urge that it was at the instance of his wife that
he agreed to divorce her. No specific material to that effect is available. It
Crl.M.C.No. 447 of 2007 3
is also not disputed that the claimant/divorced wife, a woman in her 40s,
remains unmarried even now. It is also not disputed that the petitioner has
got remarried promptly after the divorce. There is no material to show that
either party has any landed property. The claimant wife admittedly has now
taken shelter with her son in the previous marriage of hers. The children
born in the wedlock between the claimant and the petitioner are admittedly
residing now with the petitioner.
6. The rival contestants made assertions about the means. Specific
evidence of tangible means was not available. The learned Magistrate and
the learned Sessions Judge took note of the broad probabilities. The
children living with the petitioner and the newly married wife of the
petitioner are obviously looking into the petitioner for support. There is no
tangible evidence for this. The counsel contends that it is puerile to assume
from those circumstances that the petitioner has any means. The court
cannot sit in an island oblivious to realities of life. Section 114 of the
Evidence Act permits and obliges the court to make prudent assumptions
and presumptions of fact. In the totality of circumstances, which are
available in this case, according to me, it would be perverse for any court or
any prudent mind to assume that the petitioner is a person without any
Crl.M.C.No. 447 of 2007 4
means. The circumstances which I have referred to earlier, notwithstanding
the fact that there is no tangible evidence, conclude that the petitioner is
not a person without means. It would be imprudence of the worst variety in
the circumstances of the case to lightly assume that the petitioner who
voluntarily embraced the additional responsibility of a subsequent marriage
without any means. In these circumstances I am unable to agree that the
court below committed any error in making that assumption.
7. The counsel assails the quantum fixed at Rs.500/- p.m. as
maintenance during the period of Iddat and Rs.300/- p.m. while attempting
to quantify the lump sum amount payable as equivalent to 7 years
maintenance. The quantification made and the principles adopted do
appeal to me, in the circumstances, to be absolutely reasonable and do not,
at any rate, persuade me to invoke the extra ordinary inherent jurisdiction
to interfere with such finding of fact and quantification. The quantum
fixed, according to me, is modest, cogent, reasonable and consistent with
the indisputable facts available in this case.
8. The learned counsel for the petitioner then contends that the
claimant has the option of approaching her possible legal heirs and the
Wakf Board for maintenance under Section 4 of the Act. Those provisions
Crl.M.C.No. 447 of 2007 5
deal with the unfortunate situation when a woman having obtained the
amounts under Section 3 still finds her to be unable to maintain herself
later. It will be imprudent and perverse to assume that the stipulations in
Section 4 are sufficient to displace or reduce the liability of the husband
under Section 3. The compassion of the law in favour of a woman, who
having obtained the lump sum amount under Section 3(1) already, becomes
disentitled to the benefit of Section 125 Cr.P.C. under Section 127(3)(b)
Cr.P.C. to claim maintenance and who remains unmarried and is liable to
maintain herself is reflected in Section 4. That safety valve provided for
the impecunious wife to go with a begging bowl before her possible legal
heirs or the Wakf Board cannot at any rate be a defence for the husband
to a claim under Section 3 either for absolution or for mitigation. In any
view of the matter, I am satisfied that the impugned order does not warrant
interference.
9. This Crl.M.C. is hence dismissed.
(R. BASANT)
Judge
tm
Crl.M.C.No. 447 of 2007 6
