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2025 DIGILAW 2432 (KER)

Abdul Shukkur K. M, S/o. Moosa Haji v. K. P. Raashida, D/o. Ibrahim Mussaliar

2025-09-11

SYAM KUMAR V.M.

body2025
ORDER : SYAM KUMAR V.M., J. This Crl.M.C. traces its origin to a petition filed by the respondent wife invoking Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as 'the Act of 1986'). The Chief Judicial Magistrate, Thalassery had vide Annexure 3 order allowed the said petition and the challenge against the same before the Sessions Court, Thalassery was repelled vide Annexure 4 order. The aggrieved husband has now moved this Court with this Crl.M.C., challenging both Annexures 3 and 4. 2. Petitioner married the respondent on 27.02.2011. The Family Court, Kannur, dissolved the marriage on 06.07.2013, on the grounds of impotency of the petitioner, his cruelty towards her and as per the Quranic injunctions as envisaged under the Dissolution of Muslim Marriages Act, 1939. Respondent thereafter filed M.C.No.21 of 2014 before the Chief Judicial Magistrate Court, Thalassery, invoking Section 3 of the Act of 1986 and seeking a direction to the petitioner to pay maintenance for the Iddat period at the rate of Rs.10,000/- per month for three months as well as an amount of Rs.10,00,000/- towards the fair provision and future maintenance of the respondent. After due hearing and recording of evidence, Annexure 3 order was rendered therein by the Chief Judicial Magistrate, directing the petitioner to pay to the respondent a total amount of Rs.15,000/- towards iddat maintenance and Rs.5,00,000/- towards reasonable and fair provision of maintenance. Petitioner filed Crl.R.P.No.31 of 2018 before the Sessions Court, Thalassery, challenging the order of the CJM. The same was dismissed by the Sessions Court, inter alia, holding that the conclusion arrived at by the learned Magistrate is plausible and that the amount awarded by the learned Magistrate is reasonable, fair and not excessive. Petitioner filed Crl.R.P.No.31 of 2018 before the Sessions Court, Thalassery, challenging the order of the CJM. The same was dismissed by the Sessions Court, inter alia, holding that the conclusion arrived at by the learned Magistrate is plausible and that the amount awarded by the learned Magistrate is reasonable, fair and not excessive. Contending that the CJM had not considered the means of the petitioner and that satisfaction of the Magistrate as to the divorced husband's failure or neglect to pay maintenance to the divorced wife, despite having sufficient means, is a mandatory prerequisite contemplated under Section 3 (3) (a) of the Act of 1986 and further that while awarding maintenance under such a petition, the determination of the maintenance amount shall be based on the need of the divorced wife, standard of life enjoyed by her during the marriage and the means of the divorced husband, none of which had been considered firstly by the CJM and later by the revisional court, this Crl.M.C. is filed by the petitioner. 3. Heard Sri.M.K.Sumod, Advocate for the petitioner, Sri.Mohamed Jameel P.K., Advocate for the 1 st respondent and Sri.Sanal P. Raj, learned Public Prosecutor for the 2 nd respondent. 4. It is vehemently contended by the learned counsel for the petitioner that the order of the CJM is unsustainable in law and the revisional court had erred in overlooking the illegality committed by the CJM. It is submitted that the petitioner and his parents are coolie workers and as a salesman in Bangalore, he had been earning only a meagre amount of Rs.3,000/- per month. He is an uneducated man who is unable to advance in his job. He is under an obligation to maintain his aged parents. On the legal grounds, it is contended that the needs of the divorced wife, the standard of life enjoyed by her during her marriage and the means of her former husband had not been legally established before fixing the quantum. The mandatory prerequisites contemplated under Section 3 (3)(a) of the Act of 1986 had not been complied with. The determination of maintenance amount ought to have been based on the above mentioned grounds. The Magistrate ought to have been satisfied that the husband had sufficient means and had failed or neglected to make or pay to the wife within the iddat period a reasonable and fair provision and maintenance for her. The determination of maintenance amount ought to have been based on the above mentioned grounds. The Magistrate ought to have been satisfied that the husband had sufficient means and had failed or neglected to make or pay to the wife within the iddat period a reasonable and fair provision and maintenance for her. Though the said error of the CJM was pointed out before the Sessions Court in revision, the same was not properly appreciated. The order of the Sessions Court is mechanical and cryptic. No reasoning has been stated for holding that the conclusion arrived at by the learned Magistrate is plausible and that the amount awarded is reasonable, fair and not excessive. Reliance is placed on the dictum laid down in Mohammed Shaji v. State of Kerala [ 2019 SCC Online Ker 7967 ], and it is contended that the duty of a husband to make provisions for his former wife to lead a life consistent with the standard of life which she used to, must be discharged by the direction for payment of fair and reasonable provision under Section 3 . It cannot be an illusory amount. The totality of circumstances will have to be considered by the court in its attempt to answer the question as to what amounts must be fixed, in a just and reasonable manner. Aspects to be considered while fixing the amount of maintenance include the age of the wife, her prospects of remarriage, the income of the husband, the details of his immovable assets, the age of the minor child, if any, the strata of society to which the parties belong and all other relevant aspects. It is contended that none of the said aspects were looked into either by the CJM or by the Sessions Court, and hence Annexures A3 and A4 are fit to be set aside. 5. Per contra, the learned counsel for the 1 st respondent wife contended that the order of the CJM and Sessions Court does not require any interference whatsoever and that the same has been rendered in accordance with law. He submits that the specific pleading and deposition given by the respondent wife while she was examined as PW1, that the petitioner has a grocery business in Shivajinagar, Bangalore and that he also has two ambulance services and buses, has not been reliably controverted. He submits that the specific pleading and deposition given by the respondent wife while she was examined as PW1, that the petitioner has a grocery business in Shivajinagar, Bangalore and that he also has two ambulance services and buses, has not been reliably controverted. It is the specific case of the wife that the husband is having land business and has been getting more than Rs.2,00,000/- per month as income. As regards herself, she had deposed that her family is financially sound and has a high reputation. Her father is a religious scholar and a khasi of a mosque. She is a graduate in B.A. Economics and has also studied PGDCA. The petitioner, while cross-examined, had admitted that of the 60 cents of land belonging to his father, 20 cents stand in the name of his mother and 20 cents each were given by his father to his 3 daughters, who are his sisters. He had further stated that he had been working in a bag shop in Shivajinagar, Bangalore, for the last 4 years and that the said shop is owned by his friend, who is now abroad. It has been the specific case of the respondent wife that the shop is owned by the petitioner himself. It is thus contended by the learned counsel that there was enough material before the CJM to suggest that the petitioner and respondent belong to a middle-class Muslim family. It is thus after a fair appraisal of all the relevant inputs, as mandated under law, that the CJM had concluded that a total amount of Rs.15,000/- towards iddat maintenance and Rs.5,00,000/- towards fair provision of maintenance is to be paid by the petitioner. The claim for Rs.10,000/- per month for three months, as well as an amount of Rs. 10,00,000/- towards the fair provision and future maintenance put forth by the respondent, had thus been turned down. There is no illegality in the said procedure and reasoning adopted by the learned CJM. The learned counsel for the respondent further emphasised the dictum laid down by the Supreme Court in Rajathi v. Ganesan ( 1999 KHC 686 ) and contended that the High Court, while exercising jurisdiction under Section 482, cannot minutely examine the evidence and come to the conclusion that the wife was living separately without any reasonable cause and that she can maintain herself. Section 482 is not a substitute for a second revision under subsection (3) of Section 3 97 of the Code of Criminal Procedure. The very fact that the inherent powers conferred on the High Court are vast would mean that these are circumscribed and could be invoked only on certain set principles. The learned counsel thus submits that this Court may not indulge in an exercise of further re- appreciation of the evidence that has already been appreciated in detail by the CJM as well as by the Sessions Court in revision, and proceed to substitute its finding for those arrived at by the Courts below. He thus prayed that the Crl.M.C. may be dismissed. 6. I have heard both sides in detail and have considered the contentions put forth. It is trite and settled as laid down in Mohammed Shaji (supra) that when it comes to the question whether the findings of the court below warrant any interference, the inherent jurisdiction under Section 482 of the Cr.P.C. has to be used with great circumspection and caution. Satisfactory, convincing and exceptional reasons must be shown to exist before such jurisdiction is invoked and exercised. It must be shown that the miscarriage of justice would otherwise result, and the invocation of jurisdiction under 482 cannot be routine or as a matter of course. Such jurisdiction shall not be lightly invoked to interfere with the discretion exercised by the trial court and revisional court or with the findings of fact rendered by such courts. Unless such exercises of discretion and findings of fact are grossly erroneous and perverse, and unless such vice leads to miscarriage of justice, this Court cannot and will not be persuaded to invoke such extraordinary inherent jurisdiction. I note that the Chief Judicial Magistrate Court had properly appreciated all the relevant facts and circumstances and had weighed the same with the mandates of the Act of 1986. The CJM had noted the advanced age of the respondent and that it was her first marriage with the petitioner. That her prospects for a second marriage, though not totally foreclosed, is not that easy to secure has also been noted. Her age and the possibility of securing a second marriage have thus been properly weighed by the Chief Judicial Magistrate. That her prospects for a second marriage, though not totally foreclosed, is not that easy to secure has also been noted. Her age and the possibility of securing a second marriage have thus been properly weighed by the Chief Judicial Magistrate. The trite law that quantum of maintenance to be fixed should be adequate to enable the wife to live with dignity, similar to the standard with which she would have lived in her matrimonial home and that plea of financial constraints could not be taken as a ground to deny the benefits of a divorced woman, had been validly relied on and emphasized by the Chief Judicial Magistrate. Respondent is a graduate and had studied PGDCA, and that her father is a Khasi of a mosque and is a religious scholar and that both the petitioner and respondent belong to a middle-class Muslim family had been duly noted by the CJM. The respondent is a healthy able-bodied man capable of earning for his own support has also been taken note of. The revisional court has taken proper note of the said aspects and has also noted that the conclusions arrived at by the learned CJM are valid and proper. While affirming the order of the CJM, the Sessions Court had also noted that the fact that marriage with the respondent was the second marriage of the petitioner and that he had a child in his first marriage. He had again married and had a child in his third marriage. Reliance placed by the Sessions Court on the dictum laid down in Mohammedali v. Rahiyanath and another [2015 KHC 820] regarding the scope of revisional power in cases involving Section 3 of the Act of 1986 and the reliance placed on the dictum laid down by the Hon’ble Supreme Court in Danial Latifi v. Union of India [ 2001 KHC 776 ] regarding the reasonable and fair provisions for maintenance of Muslim divorced Women under Section 3 of the Act of 1986 are apt, relevant and valid. In view of the above, I find no reason to interfere with the orders under challenge in this Crl. M.C. It fails and is dismissed.