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Pallithottuka Abdul Azeez vs Kadannoli Aysha on 21 February, 2007

Kerala High Court
Pallithottuka Abdul Azeez vs Kadannoli Aysha on 21 February, 2007
       

  

  

 
 
  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.

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                         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

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