Muhammed Rasheed vs Sarafunisa
2022 Latest Caselaw 9182 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                    CRL.MC NO. 2796 OF 2013
    AGAINST THE ORDER/JUDGMENTCRRP 15/2011 OF ADDITIONAL
    DISTRICT COURT, MANJERI / I ADDITIONAL MACT, MANJERI
     MC 35/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -
                        II,PERINTHALMANNA
PETITIONER/S:

            MUHAMMED RASHEED
            S/O. MUHAMMED, MANCHERITHODIKA HOUSE,
            VEGTIKKATTIRI, VALLUVANGAD.P.O., ERNAKULAM TALUK,
            MALAPPURAM DISTRICT.
            BY ADV SRI.K.M.SATHYANATHA MENON


RESPONDENT/S:

    1       SARAFUNISA
            D/PO. MUHAMMED, MATTUMMATHODI HOUSE, CHOLAKKULAM,
            MELATTUR.P.O., PERINTHALMANNA TALUK, MALAPPURAM
            DISTRICT-679326.
    2       STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
            OF KERALA, ERNAKULAM,KOCHI-682031.
            BY ADV SRI.U.K.DEVIDAS

            PP SRI.K.A.NOUSHAD


     THIS    CRIMINAL    MISC.   CASE    HAVING   COME   UP   FOR
ADMISSION ON     10.08.2022, THE       COURT ON   THE SAME    DAY
PASSED THE FOLLOWING:
 Crl.M.C. No.2796/13
                                      -: 2 :-


                 BECHU KURIAN THOMAS, J.
                 ===================
                    Crl.MC No.2796 of 2013
                 ---------------------------------------
                                          th
                      Dated this the 10        day of August, 2022

                                    ORDER

By order dated 02.04.2011 in M.C. No.35 of 2009, the

Judicial Magistrate of First Class, Perinthalmanna, directed the

petitioner to pay an amount of Rs.7,80,000/- as the fair and

reasonable provision to the first respondent under Section 3(1) of

the Muslim Women (Protection of Rights on Divorce) Act, 1986

(hereinafter referred to as 'the Act' for short). The challenge

against the said order was dismissed by the Sessions Court by

order dated 12.02.2013 in Crl.R.P. No.15 of 2011. Since a second

revision petition is not maintainable, petitioner has invoked the

jurisdiction under Section 482 of the Code of Criminal Procedure,

1973 to challenge the aforesaid order.

2. The marriage between the petitioner and the first

respondent was solemnised on 27.05.2011, and a son was born

in the said marriage. Thereafter the marriage fell into troubled

waters, and the petitioner divorced his wife on 20.04.2009 by Crl.M.C. No.2796/13

pronouncing Talaq. Alleging that the gold ornaments and money

handed over by the first respondent to the petitioner were

misappropriated and that she was subjected to cruelty

demanding more dowry, a criminal case as C.C. No.798 of 2018

was filed by the first respondent for offences under Section 498A

of the Indian Penal Code, 1860. Another proceeding was initiated

as M.C. No.660 of 2018 before the Family Court Malappuram,

claiming maintenance under section 125 of the Cr.P.C. Along with

the above two cases, the first respondent also filed an application

under Section 3 of the Act claiming the value of gold ornaments

of Rs.3,30,000/- and Rs.10,00000/- towards fair and reasonable

provision for maintenance.

3. In order to prove her claim, the first respondent,

examined PW1 to PW4 and marked Exts.P1 to P3, while the

petitioner herein examined RW1 to RW3 and marked Ext.D1

4. Learned Magistrate, after considering the evidence

adduced, came to the conclusion that the first respondent is not

entitled to the gold ornaments or their value. However, it was

held that the first respondent was entitled to Rs.7,80,000/-

towards maintenance. The quantum of maintenance was

calculated at Rs. 5000/- per month for a period of 13 years. The Crl.M.C. No.2796/13

multiplier was reckoned based on the age of the child after

finding that within 13 years the child will be able to take care of

her mother.

5. In the revision petition preferred by the petitioner, the

Sessions Court, after re-appreciation of the evidence adduced

and an analysis of the provisions of the Act, came to the

conclusion that there was no error in the findings of the

Magistrate. It was also found that considering the age of the first

respondent and the present cost of living, the amount fixed by

the Magistrate was just and reasonable.

6. Sri.K.M.Sathyanatha Menon, learned Counsel for the

petitioner, attacked the two impugned orders contending that,

while arriving at the conclusion on fair and reasonable provision

for maintenance, the learned Magistrate had adopted a multiplier

of 13 years, which was too excessive and based on no intelligible

criteria. It was further submitted that the petitioner is not

financially in a secure position to pay the amount directed, and

hence the multiplier adopted was excessive. Reference was made

to the decision in Abdul Saleem v. Fousiya [2013 (1) KLT 20] to

contend that the multiplier beyond five years ought not to have

been adopted, and even if the Court wanted to fix the multiplier Crl.M.C. No.2796/13

higher than 5, a maximum of 10 years alone ought to have been

adopted. In any event, the first respondent is alleged to have

remarried on 18.05.2017, as evident from Annexure-C additional

document, and hence it was argued that she could not have been

awarded amounts, based on a multiplier of 13.

7. Sri.K.A.Noushad, learned Public Prosecutor submitted that

the impugned orders do not require any interference, especially

under Section 482. It was further pointed out that the

circumstances reveal that the multiplier adopted by the learned

Magistrate as well as Sessions Court was just and reasonable.

8. I have considered the rival contentions and also perused

the impugned orders.

9. Admittedly, a second revision is not contemplated by the

Code. Though a petition under Section 482 Cr.P.C is entertained

even against a revisional order, the scope of interference under

the inherent powers against an order passed in exercise of the

revisional jurisdiction is permissible only when the impugned

order amounts to an abuse of the process of the court. The scope

of interference under Section 482 Cr.P.C must therefore be only in

exceptional circumstances. Merely because a different view is

possible, that is not a ground by itself to interfere in the Crl.M.C. No.2796/13

proceedings invoking the inherent power.

10. With the above proposition of law in mind, it can be

discerned from the impugned orders that the learned Magistrate

had rightly declined the value of gold ornaments as well as

Rs.30,000/- claimed by the first respondent. As regards the claim

for a reasonable and fair amount of maintenance, the learned

Magistrate considered the entire evidence adduced and arrived

at a figure of Rs.5,000/- per month and adopted the multiplier of

13 years.

11. The impugned order of the learned Magistrate was

rendered on 02.04.2011, while the order of the learned Sessions

Judge in revision was of the year 2013. On both dates, the first

respondent was unmarried and accordingly, a provision had to be

made to provide for a fair and reasonable amount of

maintenance.

12. In Danial Latifi and Another v. Union of India

[(2001) 7 SCC 740], the Supreme Court considered the

constitutional validity of the provisions of the Muslim Women

(Protection of Rights on Divorce) Act, 1986 and upheld it. The Act

of 1986 provides remedies beneficial to the Muslim women

divorcee by making the former husband liable to provide the Crl.M.C. No.2796/13

divorced woman with a reasonable and fair provision, in addition

to providing maintenance. While the Criminal Procedure Code

provides the relief of maintenance only, the Act of 1986 furnishes

to a divorced woman, in addition to a reasonable and fair

provision, the relief of recovery of dower and return of marital

gifts.

13. While upholding the validity of the Act, the Supreme

Court in Danial Latifi's case summed up its conclusion as below:

"(a) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of S.3(1)

(a) of the Act.

(b) Liability of a Muslim husband to his divorced wife arising under S.3(1)(a) of the Act to pay maintenance is not confined to the iddat period.

(c) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under S.4 of the Act......."

14. Thus, the liability of a Muslim husband to pay maintenance

to his divorced wife is beyond question.

15. From the tenor of the argument of the learned Counsel,

it was evident that petitioner was concerned more about the Crl.M.C. No.2796/13

quantum of maintenance fixed, especially the multiplier adopted.

As mentioned earlier, the learned Magistrate had adopted a

multiplier of 13 based on the age of the child. Though the learned

Counsel canvassed that a multiplier of 5 alone should have been

adopted, it is evident from a perusal of the judgment in Abdul

Saleem v. Fousiya and Another (2013 (1) KLT 20), that it is

not impermissible to adopt a multiplier beyond five years. In the

said decision, even after observing that normally a multiplier of 5

years could be adopted, the court fixed the multiplier at 10.

16. Though the aforementioned contention is impressive, I am

not inclined to accept the said contention for more reasons than

one. Adopting the multiplier for calculating the maintenance

depends upon the facts and circumstances of each case. In the

absence of any statutory prescription, it cannot be said that a

particular multiplier alone ought to be adopted or that the

multiplier adopted in another case must be the basis for the

multiplier in another. There is an element of guesswork while

adopting the multiplier, and a lot depends on the circumstances

of each case.

17. Though the learned Counsel for the petitioner

contended that, as evident from Annexure-C additional Crl.M.C. No.2796/13

document, the first respondent had remarried on 18.05.2017, I

am of the view that the alleged re-marriage has no relevance in

the circumstances of the case. This Court is called upon to

consider the regularity, propriety or otherwise of the impugned

orders issued in 2011 and 2013. At that point in time, the Courts

could not have assumed that the re-marriage of the first

respondent would take place in 2017. The provision providing for

maintenance is intended to serve the future. Of course, by

remarriage, the right to claim maintenance would be lost. It is

one thing to say that the right to claim maintenance would be

lost on remarriage, while it is another thing to say that the

multiplier adopted must be varied based on the remarriage.

Therefore, while considering the validity of the award of fair and

reasonable maintenance, the alleged subsequent marriage that

occurred after four years cannot determine the correctness or

irregularity of the impugned orders. At the time the application

was filed, and at the time when the Magistrate rendered its order,

the divorced wife had not remarried.

18. Apart from the above, the certificate produced as an

additional document is not marked in evidence before the

Magistrate's Court. It is not a proved document. The document Crl.M.C. No.2796/13

produced cannot be relied upon by this Court to set aside the well

considered order of the learned Magistrate or that of the Sessions

Court.

19. Even otherwise, on an appreciation of the circumstances

of the case, I am of the view that the adoption of the multiplier as

13 to fix the quantum of maintenance, in the circumstances, was

just and reasonable.

Therefore, I find no merit in the Crl.MC and the same is

dismissed.

Sd/-

BECHU KURIAN THOMAS JUDGE jm/ Crl.M.C. No.2796/13

APPENDIX OF CRL.MC 2796/2013

PETITIONER EXHIBITS ANX.A TRUE COPY OF THE ORDER IN M.C.

35/09 DATED 2-4-2011 ON THE FILE OF THE JUDICIAL I CLASS MAGISTRATE-II, PERINTHALMANNA.

ANX.B CERTIFIED COPY OF THE ORDER IN CRL.R.P. NO. 15/11 ON THE FILES ON FILES OF THE COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE MANJERI.