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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 26 of 2011()
2. STATE OF KERALA,
For Petitioner :SRI.C.KHALID
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
O R D E R
THOMAS P. JOSEPH, J.
Crl.M.C. No.26 of 2011
Dated this the 28th day of January, 2011.
Petitioner is the former husband of the respondent who filed M.C.No.168
of 2002 in the court of learned Judicial First Class Magistrate, Payyannur under
Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act,
1986 (for short, "the Act"). Respondent made various claims of which, only two
claims are allowed, maintenance during the period of iddat and reasonable and
fair provision for future maintenance. Hence it is not necessary to advert to other
claims of the respondent. Respondent claimed `.30,000/- during the period of
iddat and Rupees five lakhs as reasonable and fair provision for future
maintenance. Learned Magistrate found, rejecting the contentions of petitioner
that he is liable to pay `.4,500/- as maintenance during the period of iddat and
`.1,50,000/- as reasonable and fair provision. Learned Sessions Judge in
Crl.R.P.No.27 of 2004 filed by the petitioner has confirmed the said order. The
said orders are under challenge at the instance of petitioner. It is contended by
learned counsel that the amount awarded is exorbitant. According to the learned
counsel, respondent did not make any claim against her first husband and hence
she is estopped from making any claim against petitioner.
2. This being a proceeding under Section 482 of the Code of Criminal
Procedure (for short, "the Code"), limited question is whether the order under
challenge suffers from any illegality or the proceeding was an abuse of process
of law. Even as per the version of petitioner, he is a painter by occupation and
was aged 38 years at the time proceedings were initiated. Respondent was then
aged 29 years. It is not disputed that it was second marriage of petitioner and
respondent and that after pronouncement of thalak on respondent on
31.01.2002 with effect from 04.02.2002, petitioner has contracted a third
marriage and is maintaining that lady. Necessarily I must think that he is
capable of maintaining a family. He was aged 38 years and is able bodied. It is
not shown that petitioner is incapable of earning due to physical infirmity. Hence
it must be presumed that petitioner is capable of earning. Having regard to the
need of a 29 year old lady such as food, clothing, shelters and other basic
necessities, sum of `.1,500/- per month (ie. at the rate of `.50/- a day) awarded
as maintenance during the period of iddat cannot be said to be exorbitant or,
beyond the paying capacity of petitioner.
3. It is seen that learned Magistrate has awarded a lump sum of
`.1,50,000/- as reasonable and fair provision for future maintenance. True,
there was no assessment of the amount payable and learned Sessions Judge
has confirmed the said order. Having regard to the age of parties, even if '8' is
taken as the multiplier to be adopted, amount payable as reasonable and fair
provision for future maintenance at the rate of `.1,500/- per month comes to
`.1,44,000/- while what is awarded is `.1,50,000/-. Having regard to the age of
respondent and her need I do not think that the amount awarded is exorbitant so
as to call for interference under Section 482 of the Code.
4. The next contention is that respondent having not made any claim
against her former husband is estopped from making a claim against petitioner,
her second husband. I do not find any statutory provision or precedent to back
that contention. May be, respondent could have made a claim against her
former husband also in which case her re-marriage with petitioner would have
been a relevant consideration in fixing the amount payable as future
maintenance. But in the present proceeding claim is for expenses during the
period of iddat following petitioner divorcing the respondent and for her future
maintenance. No claim prior to her marriage with the petitioner is involved.
Contention that respondent having failed to make a claim against her former
husband is estopped from establishing her claims against the petitioner has no
legal backing. It has to fail.
5. On hearing learned counsel and on going through the orders under
challenge I do not find reason to interfere.
Resultantly this petition fails. It is dismissed.