IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3900 of 2008()
1. SAINABA, AGED 23, D/O.KASHUNGUM
... Petitioner
Vs
1. P.Y.UMMER, AGED 30, S/O.MUHAMMAD, PUTHAN
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.K.T.SHYAMKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :09/12/2009
O R D E R
P.S.GOPINATHAN,J.
=========================
Crl.R.P.No.3900 of 2008
&
Crl.M.C.No.3461 of 2008
==========================
Dated this the 9th day of December, 2009
ORDER
Both these proceedings are challenging the order in
Crl.R.P.45/2007 on the file of the Addl. Sessions Judge, Manjeri.
Crl.R.P.45/2007 was filed by the counter petitioner in
M.C.No.25/2002 on the file of the Judicial Magistrate of the First
Class-II, Parappanangadi, assailing the order directing him to
pay a sum of Rs.2,500/- towards the maintenance during the
Iddat period and a sum of Rs.1,00,000/- towards the fair and
reasonable provision to be paid to the petitioner before the trial
court under Section 3 of the Muslim Women (Protection of
Rights on Divorce) Act. Petitioner was married by the counter
petitioner on 10.9.1995. Parties are referred to as in
M.C.25/2002. On 26.09.2000, divorce was granted by the family
court as per order in O.P.No.17/2000. Thereupon, the petitioner
filed the above petition before the trial court seeking an order to
grant Rs.6,000/- as maintenance during the iddat period and a
sum of Rs.2,00,000/- towards reasonable and fair provision. She
Crl.R.P.No.3900/2008 & Crl.M.C.No.3461/2008
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had also claimed Rs.2,73,000/- towards value of 50 sovereigns of
gold ornaments and Rs.1,00,000/- paid at the time of marriage.
2. Counter petitioner objected the petition stating that
he had not taken any gold ornaments or received any money
belonging to the petitioner and that the order granting divorce is
an ex parte one and that the amount claimed is exorbitant and
that the petitioner is not entitled to get any amount as claimed
and that he is only a hotel worker.
3. During the enquiry, the petitioner and two others
were examined as PWs.1 to 3 and Ext.P1 was marked. On the
side of the counter petitioner, CPWs. 1 to 3 were examined. The
trial court on evaluation of the evidence, arrived at a finding that
the petitioner has not succeeded to establish that any gold
ornaments or money belonging to her was appropriated by the
counter petitioner. Towards maintenance, during the iddat
period, a sum of Rs.2,500/- was awarded. Towards reasonable
and fair provision, a sum of Rs.1,00,000/- was granted.
4. Assailing the said order, the counter petitioner
preferred Crl.R.P.45/2007. The petitioner did not challenge that
order. The learned Sessions Judge by an order dated 4.07.2008
Crl.R.P.No.3900/2008 & Crl.M.C.No.3461/2008
3
dismissed the revision petition.
5. Assailing the legality, correctness and propriety of
that order, the petitioner had preferred Crl.R.P.No.3900/2008.
Since the order in revision being one confirming the order
granted by the trial court and the petitioner had not chosen to
challenge the same in revision, she would not get a fresh cause
of action to challenge the order dismissing Crl.R.P.No.45/2007.
Hence, R.P.3900/2008 is not sustainable.
6. Assailing the order in revision, the counter petitioner
had preferred Crl.M.C.No.3461/2008. The grievance is regarding
the quantum. The learned counsel for the revision petitioner
would submit that the revision petitioner is a coolie in a hotel
and that within two years after the divorce the petitioner
remarried and that the amount calculated by the trial court and
confirmed in appeal is without any basis without taking into
account the income of the respondent and the amount confirmed
by the Additional Sessions Judge is unconceivable, erroneous
and not justified.
7. Having heard either side, I find that there is a little
merit in the submission made by the learned counsel for the
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4
petitioner. In arriving at a calculation regarding the reasonable
and fair provision, the trial court as well as the Additional
Sessions Judge had not taken into account either the income of
the counter petitioner or the requirements of the petitioner.
Neither the period between the divorce and remarriage was also
taken into account. Amount was calculated without any basis.
Time gap between divorce and remarriage is just two years.
Taking into account of the status of the parties amount ordered
is exorbitant and beyond the means of the counter petitioner. In
this way, I find that reasonable and fair provision granted by the
trial court as confirmed in revision is vitiated. Interest of Justice
demands interference. Taking into account the status of the
parties, I find that to determine the reasonable and fair provision
the monthly requirements of the petitioner can be determined at
Rs.2,000/- (Rupees two thousand only) and it can be capitalised
for a period of two years. If calculated so, it would come to
Rs.48,000/- (Rupees forty eight thousand only) and is rounded to
Rs.50,000/- (Rupees fifty thousand only). I find that the said
amount would be reasonable and fair provision.
Crl.R.P.No.3900/2008 & Crl.M.C.No.3461/2008
5
8. In the result, Crl.R.P.3900/2008 is dismissed.
Crl.M.C.3461/2008 is allowed in part. The reasonable and fair
provision to be paid by the counter petitioner is reduced to
Rs.50,000/- (Rupees fifty thousand only) from Rs.1,00,000/-
(Rupees one lakh only). As per the order in
Crl.M.A.No.4928/2008 dated 09.09.2008, this Court directed the
respondent to remit an amount of Rs.50,000/- (Rupees fifty
thousand only) within two months. Thereafter, one month’s time
was granted for depositing the amount. In the event that amount
is not deposited on or before 28.12.2008, it would bear interest
at the rate of 9% per annum from 28.12.2008. In all other
respects order of the trial court is confirmed.
P.S.GOPINATHAN, JUDGE.
dvs