Kerala High Court

Shameer C.P vs Jamsheena P on 3 October, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

CRL.MC NO. 7455 OF 2018               1


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               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946

                          CRL.MC NO. 7455 OF 2018

      AGAINST THE ORDER/JUDGMENT DATED 05.04.2018 IN CRRP
NO.78 OF 2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
IV, KOZHIKODE / III ADDITIONAL MACT, KOZHIKODE ARISING OUT OF
THE ORDER/JUDGMENT DATED 26.10.2016 IN MC NO.33 OF 2015 OF
CHIEF JUDICIAL MAGISTRATE ,KOZHIKODE
PETITIONER/S:

              SHAMEER C.P.
              AGED 39 YEARS
              S/O.MOIDEENKOYA, MARVA MAHAL, PARAMBATH,
              THALAKKALATHUR P.O, KOZHIKODE -673317.


              BY ADVS.
              R.SUDHISH
              SMT.M.MANJU




RESPONDENT/S:

      1       JAMSHEENA P.
              AGED 33 YEARS
              D/O.MUHAMMED ALI, PUTHIYARAKKAL HOUSE, KALLAI P.O,
              KOZHIKODE 673003.

      2       STATE OF KERALA
              REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
              KERALA, ERNAKULAM 682031.


              BY ADVS.
              SRI.K.M.FIROZ
 CRL.MC NO. 7455 OF 2018             2


                                                 2024:KER:73755

              SMT.M.SHAJNA



OTHER PRESENT:

               SRI.RENJITH.T.R, SR.PP


       THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
03.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 7455 OF 2018                    3


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                    P.V.KUNHIKRISHNAN, J
                  --------------------------------------
                   Crl.M.C. No. 7455 of 2018
                  --------------------------------------
             Dated this the 3rd day of October, 2024



                                    ORDER

This Criminal Miscellaneous case is filed challenging

Annexures-A1 & A2 orders. Annexure-A1 is an order passed

by the Chief Judicial Magistrate Court, Kozhikode in MC No.

33/2015, which is filed by the 1 st respondent herein, under

Sec.3(2) of the Muslim Women (Protection of Rights on

Divorce) Act, 1986 (for short 'Act, 1986'). The learned

Magistrate allowed the petitioner directing the respondent to

pay Rs. 30,000/- as maintenance for the iddat period and

Rs.9,60,000/- towards fair and reasonable provision.

Aggrieved by the same, the petitioner filed Crl.R.P. No.

78/2017 before the Sessions Court, Kozhikode. The learned

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Sessions Judge dismissed the revision confirming the order

passed by the learned Magistrate. Aggrieved by these orders,

Criminal Miscellaneous case is filed.

2. Heard the learned counsel for the petitioner

and the learned counsel appearing for the 1st respondent.

3. Two points are raised by the petitioner. The

1st one is that the learned Magistrate passed Annexure-A1

order, without giving an opportunity to the petitioner to file a

counter and also denied opportunity to adduce evidence. The

2nd contention is that the fair and reasonable provision is

assessed by the learned Magistrate for a period of 8 years.

The learned counsel submitted that no specific reason is

mentioned for taking 8 years to calculate the fair and

reasonable provision.

4. This Court considered the contention of the

petitioner. The 1st contention is that he was not given

sufficient opportunity to file a counter affidavit and to contest

the matter. This contention was considered by the revisional

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court in detail in paragraph 8 of Annexure-A2. Paragraph 8

of Annexure-A2 is extracted hereunder :

8. "While considering the first contention raised by the learned counsel for the revision petitioner, it can be seen from the records that more than sufficient opportunity has been granted by the court below to the revision petitioner to file his counter affidavit and contest the matter. The proceedings show that after taking the MC into files, it was posted to 21-01-2016. On that day, the revision petitioner had appeared and the matter was posted for counter affidavit to 01-3-2016. It is seen that on 01-3-2016, no counter affidavit was filed and the case was posted for counter affidavit finally to 30-4- 2016. Again, on 30-4-2016, the case was posted to 25-6-2016 for counter affidavit. On 25-6-2016, the revision petitioner was represented by a counsel, but still, no counter affidavit was filed, and the case was posted to 15-7-2016 for counter affidavit as NFT. Again on 15-7-2016, no counter affidavit was filed, and the case was posted to 19-8-2016 for the evidence of the respondent Therein. The records also show that on 19-8-2016, the evidence of respondent herein was recorded, and the counsel for the revision petitioner did not cross examine her and the case was posted for revision petitioner's evidence. On 23- 9-2016, the revision petitioner was absent, and there was no representation and the evidence was closed. Subsequently, on 29-9-2016, the matter was reopened and since the affidavit in lieu of chief examination is not acceptable, the respondent herein was

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examined as PW1 on 21-10-2016, and orders were passed on 26-10-2016. It is pertinent to note that neither the revision petitioner nor his counsel had appeared before the court below after 19-8- 2016. So, going by the proceedings, it can be seen that time was granted to the revision petitioner at least from 21-01-2016 onwards till 15-7-2016 which is almost six months. It is also relevant to note that even thereafter, till the respondent herein was examined on 21-10-2016, the revision petitioner had not taken any steps to bring his counter affidavit on record. Even if the contention of the learned counsel for the revision petitioner that the revision petitioner was abroad during these times is accepted as correct, I am of the view that he had more than sufficient opportunity and time to place his counter affidavit on record.

This is especially so considering the fact that the revision petitioner himself has appeared in person before the court below once and thereafter, has been prosecuting the matter through his counsel. In these circumstances, I am of the view that the contention of the learned counsel for the revision petitioner that the revision petitioner did not get sufficient opportunity is without any merits and is only to be rejected."

5. I see no reason to take a different view from

the revisional court. Sufficient opportunity was given to the

petitioner and the petitioner did not utilise the same.

Therefore, the contention that the petitioner was denied

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opportunity to prosecute the case is to be rejected.

6. The next contention is that while fixing the

fair and reasonable provision, the maintenance payable for 8

years was taken. According to the petitioner, this is not

proper.

7. In Cehmbrath Arakkal Jamal v.

Kunnummal Manseera and another [2014 (1) KLT 930],

this Court considered the way in which the reasonable and

fair provision is to be fixed. It will be beneficial to extract the

relevant portion of the above judgment.

16. "There is no statutory limitation to limit the reasonable and fair provision to an amount equal to the maintenance for five years. In a case like the present one in which the poor girl was abandoned and even prior to the so - called the extra - judicial divorce, the husband has chosen to marry another girl, and subsequently pronounces the Talaq, thereby, effecting an extra - judicial divorce, such a former husband cannot expect that the reasonable and fair provision should be limited to the amount of maintenance payable for five years. In judicial wisdom, the amount equal to maintenance payable for five years was fixed as reasonable and fair provision, in normal cases, just as a guideline. In

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appropriate cases, Court can award a higher amount under that head, when Court thinks it as reasonable and fair."

8. In Ahammed v. Ayisha [1990 (1) KLT 172]

also, this Court considered the same point.

7. The record reveals that except the salary of Rs.440/- which is admitted by the former husband, there is no other evidence to show that he is possessed of any other properties or that he has any other income. The evidence in this case reveals that the house jointly constructed by the revision petitioner and the divorced wife has been conveyed to the wife for a price. In these circumstances the means of the husband should only be determined as Rs.440/- per month. In this view of the matter directing him to pay Rs.12,000/- towards reasonable and fair provision and maintenance during the iddat period appears to be most improper. Under the Act S.2(b) prescribes the iddat period as 3 lunar months. So for three months the husband should be made to pay a reasonable maintenance. Considering his income at Rs.440/- per month and considering the f act that the revision petitioner and the divorced wife alone are the members of the family, it would be just and proper to fix the maintenance at Rs. 150/- per month. So for the period of iddat he is liable to pay Rs.450/- for three lunar months. As regards the reasonable and fair provision which the husband is bound to make considering his income at Rs.440/- per month, I feel if a lumpsum amount of Rs.9,000/- is provided which covers the

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five years maintenance at the rate of Rs.150/- per month the ends of justice would be satisfied. So I hold that the revision petitioner is liable to pay to the divorced wife Rs.9,000/- towards reasonable and fair provision. The husband is certainly bound to pay a sum of Rs.101/-which is the mahr amount."

9. In the light of the above principle and also

considering the fact that, this is the case in which the

petitioner was not able to adduce evidence, of course, which

is a laches on the part of the petitioner, I think, instead of

taking 8 years, for assessing the fair and reasonable

provision, it can be assessed by taking 5 years. Monthly

maintenance fixed by the trial court as Rs.10,000/- can be

retained. Therefore, the amount is re-assessed as fair and

reasonable provision in the following manner :