Abdul Sathar vs Arifa Beevi And Anr. on 6 December, 1990

    Abdul Sathar vs Arifa Beevi And Anr. on 6/12/1990

JUDGMENT

   K.G. 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 Section 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 6-10-1985. The child was born
in the wedlock on 26-10-1986. The husband-petitioner divorced the wife on
10-1-1987. The wife filed M.C. claiming Rs. 2,250/- as reasonable and fair
provision and maintenance under Section 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
26-10-1986 to 26-10-1988. 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 Section 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 Crl.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. Cr.M.C. No. 1077 of 1990 is filed by the first respondent-wife in Cr.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 Section 3 of 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 Section 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 Section 3 of the
Act and therefore she may be permitted to amend the application filed under
Section 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 Section 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 Section
3(1)(d) of the Act. I am not inclined to accept this contention. Under Section
3(1)(d) of the Act ail 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 PW5 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
Section 3(1)(d) of the Act.

   4. The learned counsel for the petitioner contended that, there was no
satisfactory evidence to hold that the petitioner received 10-1/2 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 respondent's 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 Section 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 Section 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 Section
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 Section 3(1)(a) of the Act. The liability of the father to maintain
his child for a period of two years under Section 3()(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.M.C. No. 1077/90 has been filed to amend the petition filed in the
trial court. The learned counsel for the petitioner submits that the proceedings
under Section 125 Cr.P.C. is in the nature of quasi-criminal proceedings and
therefore invoking the jurisdiction of this Court under Section 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, Trivandrum is modified to the extent that the
husband is liable to pay Rs. 4,800/- towards maintenance of the child under
Section 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.