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2018 DIGILAW 1066 (KER)

Sajeena v. Shibu

2018-12-19

A.M.SHAFFIQUE, SHIRCY V.

body2018
ORDER : 1. This revision petition has been filed against on order passed by the Judicial Magistrate of I Class-II, Kottarakara in M.C. No. 68/2005. The petitioner/divorced wife filed a petition under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as 'the Act' for short) claiming maintenance from the counter petitioner during the period of iddat and claiming reasonable and fair provision for future life, value of gold ornaments, return of parental share paid at the time of marriage and also household articles. The respondent remained ex parte. PW 1 alone was examined. On the basis of her evidence, the learned Magistrate directed payment of Rs. 1,000 per month for three months, Rs. 60,000 in lump sum towards reasonable and fair provision and Rs. 10,000 allegedly paid as 'acharam' (parental share) and Rs. 1,000 as costs. 2. The petitioner has filed this revision petition inter alia contending that the Family Court completely erred in fixing reasonable and fair provision at Rs. 60,000. That apart, despite the fact that the respondent was ex parte, the Family Court should have directed return of gold ornaments and also the amount paid as her parental share and value of house hold articles. 3. On the other hand, the learned Counsel for the 1st respondent submits that the petitioner had claimed Rs. 1,500 per month for which Rs. 1,000 has already been granted. That apart, the Family Court has already taken into consideration the reasonable and fair provision as five years' maintenance and a decree has been granted to that extent. As far as other claims are concerned, there is no evidence to prove the same and therefore the Family Court was justified in rejecting the said claim. 4. Admittedly, the claim of the petitioner for maintenance was only Rs. 1,500. According to the petitioner, the respondent was having an income of Rs. 30,000 per month. Her claim was only Rs. 1,500 per month. Therefore the Family Court was justified in granting Rs. 1,000 for three months. 5. As far as the claim for reasonable and fair provision in terms of Section 3 of the Act is concerned, the Family Court took note of the fact that maintenance for five years would meet ends of justice. This finding according to us is erroneous. Therefore the Family Court was justified in granting Rs. 1,000 for three months. 5. As far as the claim for reasonable and fair provision in terms of Section 3 of the Act is concerned, the Family Court took note of the fact that maintenance for five years would meet ends of justice. This finding according to us is erroneous. Reasonable and fair provision has to be fixed taking into account the status of the parties, the capacity of the former husband to pay maintenance and also other attendant circumstances. It is settled law and as held by this Court in Seenath v. Iqbal & Another, 2009 (3) KLT 37 , that payment must be enough to take care of future needs of the woman in the prevailing socio-economic scenario. 6. In this case the parties lived together only for a short period. The marriage was on 28.7.2003 and the talaq was on 1.2.2005. Whatever be the reason for talaq, still it is the obligation of the former husband to provide necessary provision for her livelihood. In the case on hand, even according to the respondent he is employed in Gulf and according to the petitioner he is deriving an income of Rs. 30,000 per month. The claim of the petitioner was for Rs. 5,00,000 as reasonable and fair provision. We are of the view that it would be appropriate to have been granted at least Rs. 2,50,000 towards that count. To that extent we modify the judgment of the learned Magistrate. 7. As far as the other claims are concerned, the Family Court had rejected the claim for value of gold ornaments by stating that even according to the petitioner, the counter petitioner had kept the gold ornaments in a locker. But no evidence had been adduced to prove the same and therefore the claim for value of gold ornaments has been rejected. With reference to the claim for parental share of Rs. 1,00,000, it was observed that there was a customary practice in providing 'acharam' (parental share). However, the Court below had limited the same to Rs. 10,000 taking into consideration the facts and circumstances. It is to be noted that other than the oral testimony of the petitioner no other evidence is forthcoming. If the petitioner had 40 sovereigns of gold ornaments, some evidence ought to have been adduced in that regard. However, the Court below had limited the same to Rs. 10,000 taking into consideration the facts and circumstances. It is to be noted that other than the oral testimony of the petitioner no other evidence is forthcoming. If the petitioner had 40 sovereigns of gold ornaments, some evidence ought to have been adduced in that regard. Not even a photograph of the marriage had been produced. No bills are produced to prove the same. Further, it could be seen that the parents of the petitioner had not been examined to prove the payment of Rs. 1,00,000. In such circumstance, we find no illegality or perversity in rejecting the said claim. In the result, the Criminal Revision Petition is allowed in part as under: The order passed by the learned Magistrate directing the counter petitioner to pay Rs. 60,000 in lump sum as reasonable and fair provision is enhanced to Rs. 2,50,000. In all other respects the order shall stand confirmed. It is made clear that if the amount is not paid within two months from today, it shall carry interest at the rate of 12% from this date till realisation.