Latheef vs Sumeera
2022 Latest Caselaw 9590 Ker

CRL.MC NO. 5694 OF 2020             1




              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
           THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
    THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                          CRL.MC NO. 5694 OF 2020
      AGAINST CRL.R.P 76/2017 OF SESSIONS COURT, KOZHIKODE
  MC 32/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VADAKARA


PETITIONER/REV.PETITIONER:

             LATHEEF, AGED 49 YEARS
             S/O.HASSAN, MEETHALE CHEKKOTTI HOUSE,
             MANGATTPARA, VATAKARA TALUK,
             KOZHIKODE DISTRICT.
             BY ADV ZUBAIR PULIKKOOL


RESPONDENTS:

     1       SUMEERA
             D/O.MAYANKUTTY, AGED 35 YEARS, CHERIYINTEVIDA
             HOUSE, AZHITHALA, VATAKARA BEACH, KOZHIKODE
             DISTRICT.
     2       STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM - 682031.

             R1 BY ADV SHRI.P.VENUGOPAL
             R2 BY SRI.G.SUDHEER-PUBLIC PROSECUTOR


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 5694 OF 2020              2




                                 O R D E R

This Crl.M.C has been filed challenging the order passed by

the Sessions Court, Kozhikode (for short 'the appellate court') in

Crl.R.P.No.76/2017 dated 21.12.2018 and the judgment passed by

the Judicial First Class Magistrate Court, Vatakara (for short 'the

trial court') in M.C.No.32/2015 dated 12.10.2017.

2. The revision petitioner herein was the husband of the 1 st

respondent. The parties are Muslims. They were married on

12.7.2003. Their marriage was dissolved as per the judgment of

the Family Court, Vatakara in O.P No.154/2015 on 15.5.2014.

Thereafter, the 1st respondent filed M.C.No.32/2015 invoking

Section 3 of Muslim Women (Protection of Right on Divorce) Act,

1986, (for short 'the Act') claiming reasonable and fair provision

and maintenance as well as the maintenance for the Iddha period

from the petitioner. The trial court, after trial allowed the

petition. Annexure 2 is the order. The petitioner was directed to

pay Rs.2,04,000/- to the 1st respondent towards reasonable and fair

provision and maintenance as well as Rs.15,000/- towards the

maintenance for the Iddha period. Both the petitioner and the 1 st

respondent challenged the said order in revision before the

appellate court. Those revision petitions were dismissed.

Thereafter, the petitioner preferred this Crl.M.C invoking Section

482 of Cr.P.C.

3. I have heard Sri.Zubair Pulikool, the learned counsel for

the petitioner, Sri.P.Venugopal, the learned counsel for the 1 st

respondent and Sri.G.Sudheer, the learned Public Prosecutor.

4. The marital relationship between the parties is not in

dispute. Admittedly, the divorce was granted by the Family Court

as early as in the year 2014. There is no case for the petitioner

that he has discharged his burden under Section 3 of the Act so

far. Thus, there is no dispute as to the right of the 1 st respondent

to claim reasonable and fair provision and maintenance as well as

the maintenance during the Iddah period from the petitioner. The

only question is regarding the quantum. The trial court after

considering the entire evidence on record determined the quantum

at the rate of Rs.2,04,000/-. The said amount was arrived at after

taking into account the income of the petitioner as well as the

status of the parties. The trial court also fixed the quantum of

maintenance during the Iddah period after taking into account the

relevant materials on record. In revision, the appellate court found

that there is no illegality or irregularity in the order passed by the

trial court. In these circumstances, the amount fixed by the trial

court and confirmed by the appellate court cannot be called in

question in a proceedings initiated under Section 482 of Cr.P.C.

5. The 1st respondent has filed a petition for maintenance

under Section 125 of Cr.P.C as early as in the year 2009 and got

an order. The learned counsel for the petitioner argued that

during the pendency of the revision, since the 1 st respondent

invoked Section 127 of Cr.P.C seeking alteration of maintenance

already granted, her right under Section 3 of the Act is barred or

rather extinguished under Section 5 of the Act. I cannot agree

with the said argument. Section 5 of the Act can only be invoked

jointly by the husband and the wife on the first hearing of the

application under Section 3 of the Act.

For the reasons stated above, I see no reason to interfere with

the impugned orders. Accordingly, the Crl.M.C is dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE ab

APPENDIX OF CRL.MC 5694/2020

PETITIONER ANNEXURES ANNEXURE 1 CERTIFIED COPY OF THE ORDER IN M.C.32/2015 ON THE FILE OF JFCM COURT, VATAKARA.

ANNEXURE 2 CERTIFIED COPY OF THE COMMON ORDER IN CRIMINAL REVISION 76 OF 2017.

RESPONDENTS ANNEXURES: NIL