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1990 DIGILAW 524 (KER)

Abdul Sathar v. Arifa Beevi

1990-12-06

K.G.BALAKRISHNAN

body1990
ORDER Balakrishnan, J. 1. Both these criminal miscellaneous cases arise out of the judgment passed in M. C. 64 of 1988. The 1st respondent in Crl. -M. C. 723 of 1990 filed an application under S.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Act) for a reasonable and fair provision and maintenance for herself and the child born to her. The marriage between the petitioner and the first respondent took place on 6th October 1985. The child was born in the wedlock on 26th October 1986. The husband-petitioner divorced the wife on 10th January 1987. The wife filed M.C. claiming Rs. 2,250 as reasonable and fair provision and maintenance under S.3(1)(a) of the Act, and Rs, 12,000 as reasonable and fair provision for the child for a period of two years from 26th October 1986 to 26th October 1988. The first respondent also claimed Rs. 51 towards mahr and prayed for return of certain properties, which are mentioned as items 4 to 7, as per S.3(1)(d) of the Act. The trial court allowed the first respondent to recover Rs. 2,250 as reasonable and fair provision for maintenance, and Rs. 4,200 towards maintenance of the child for two years from the date of birth of that child. The first respondent was also allowed to recover a sum of Rs. 26,250 towards the value of 10 1/2 sovereigns of gold ornaments. The petitioner husband was also directed to return the Rolex watch received by him and in default to pay a sum of Rs. 750. Aggrieved by the order the petitioner in Crl. M.C. 723 of 1990 filed a revision before the Sessions Court as Cr. R. P. No. 4/90. The revisional court confirmed the order passed by the trial court and hence Crl. M. C. 723 of 1990. 2. Crl. M. C. No. 1077 of 1990 is filed by the first respondent wife in Crl. M. C. 723/90. The main prayer in this petition is that the petitioner herein may be permitted to amend the application filed in M.C. 64/88. It is alleged that at the time of filing the petition under S.3 of the the Act, the petitioner did not claim for the maintenance beyond the iddat period, as she was not aware that she could file a petition under S.3 of the Act for maintenance for the future period. It is alleged that at the time of filing the petition under S.3 of the the Act, the petitioner did not claim for the maintenance beyond the iddat period, as she was not aware that she could file a petition under S.3 of the Act for maintenance for the future period. It is submitted on behalf of the petitioner in Crl. M.C. No. 1077 of 1990 that a subsequent decision of this Court explained the law that a divorced wife is entitled to get future maintenance also under S.3 of the Act and therefore she may be permitted to amend the application filed under S.3 of the Act 3. Both the petitions were heard together. The husband petitioner in Crl. M.C. 723 of 1990 mainly advanced the contention that the Sessions Court went wrong in holding that the respondent wife was entitled to get return of the Rolex watch under S.3 (1) (d) of the Act. The counsel for the petitioner argues that the Rolex watch was gifted to the petitioner by the paternal uncle of the first respondent at the time of the marriage and it does not belong to the first respondent and therefore she is not entitled to recover the same under S.3 (1) (d) of the Act. I am not inclined to accept this contention. Under S.3 (1) (d) of the Act all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends are to be recovered by the wife. In the instant case though the Rolex watch was given by the paternal uncle of the first respondent to the petitioner husband, it is as a consideration of his marriage with the first respondent and it is given in trust to him, the beneficiary being the first respondent wife. It is because of the marriage between the petitioner and the first respondent P.W. 5 the paternal uncle of the first respondent gifted the watch to the petitioner that is in fact an article given to the first respondent herself and the petitioner received it on behalf of his wife, the first respondent. Therefore, she is entitled to get back that article under S.3 (1) (d) of the Act. 4. Therefore, she is entitled to get back that article under S.3 (1) (d) of the Act. 4. The learned counsel for the petitioner contended that, that there was no satisfactory evidence to hold that the petitioner received 10l/2 sovereigns of gold from the first respondent. Several witnesses were examined on behalf of the first respondent. The goldsmith, who prepared some of these gold ornaments was also examined. It is also quite reasonable to argue that at the time of marriage it is usual for the husband to receive gold ornaments from the parents and other relatives of the wife. To strengthen this probable version witnesses were examined and they supported the first respondents case. The trial court examined the evidence in detail and found that the articles were received by the petitioner. I find no reason to interfere with that finding. 5. Towards the claim under S.3 (1)(b) of the Act the first respondent wife was granted maintenance of the child at the rate of Rs. 200 per mensem. However, the learned Magistrate granted maintenance only for 21 months. The claim for three months was rejected obviously for the mistaken understanding of the law. The Magistrate observed that under S.3 (1) (a) the first respondent was entitled to get reasonable and fair provision for maintenance for the iddat period and for this period she is not entitled to get maintenance, for the child. This proposition is clearly illegal. What has been mentioned under S.3 (1) (a) is the reasonable and fair provision and maintenance for the iddat period. The right of the child to get maintenance for a period of two years from the date of birth is an independent right which cannot be affected by the claim of the mother for any reasonable and fair provision for maintenance due to the mother under S.3 (1) (a) of the Act. The liability of the father to maintain his child for a period of two years under S.3 (1) (b) of the Act is independent of the provision to pay reasonable and fair provision for maintenance of wife. The Magistrate was not justified in limiting the maintenance for a period of 21 months instead of 24 months. The first respondent wife is in fact entitled to get Rs. 600 more towards this count.' The order passed by the Sessions Court requires modification to this extent. 6. Crl. The Magistrate was not justified in limiting the maintenance for a period of 21 months instead of 24 months. The first respondent wife is in fact entitled to get Rs. 600 more towards this count.' The order passed by the Sessions Court requires modification to this extent. 6. Crl. M. C. No. 1077/90 has been failed to amend the petition filed in the trial court. The learned counsel for the petitioner submits that the proceedings under S.125 Cr. P. C. is in the nature of quasi criminal proceedings and therefore invoking the jurisdiction of this Court under S.216 Cr. P.C. the petitioner may be permitted to amend the petition. It may be noted that the petitioner claimed only Rs. 2,250 for the reasonable and fair provision and maintenance for the iddat period. That has been granted by the courts below. It may be true that the petitioner is entitled to get maintenance for the period beyond iddat period. The decisions of this Court in Ali v. Sufaira 1988 (2) K.L.T. 94 and Aliyar v. Pathu 1988 (2) K.L.T. 446 support this view. The order passed by the Magistrate was challenged in revision and it merged with the revisional order. Therefore, it is not proper to allow amendment of Crl. M.C. 64/88 at this stage, 7. In the result, the order passed in Crl. M.C. No. 74/88 on the file of the Judicial I Class Magistrate, Attingal which is confirmed in Crl. R.P. No. 4/90 by the II Additional Sessions Court, Thiruvananthapuram is modified to the extent that the husband is liable to pay Rs. 4,800 towards maintenance of the child under S.3 (1) (b) of the Act. With the above modification the criminal miscellaneous cases are disposed of. The first respondent wife is entitled to withdraw the amount of Rs. 30,000 deposited by the husband in trial court towards the amount due under the impugned order.