CASE TITLE:
Suhadath K.K. Vs Shihab K.B. & Another.
DATE OF ORDER:
18th November 2022.
JUDGE:
Justice Kauser Edappagath.
PARTIES:
Petitioner: Suhadath K.K.
Respondent: Shihab K.B., State of Kerala.
SUBJECT
The High Court of Kerala widened the scope of Section 3 of the Muslim Women (Protection of Rights and Divorce) Act by granting an amount of Rs. 31.6 crore as maintenance to a divorced Muslim women.
IMPORTANT PROVISIONS
Muslim Women (Protection of Rights and Divorce) Act
Section 3- Mahr or other properties of Muslim Women that is to be given to her at the time of divorce.
FACTS
- Both the petitioner and the respondent were Muslim. On 15 July 2008 their marriage was solemnized. They were blessed with a male child.
- A case was previously filed before the 1st Additional Sessions Court, Ernakulam by the petitioner (Suhadath K.K) when the first respondent pronounced talaq to her on 15 December 2013.
- The present case have been filed to challenge the judgement passed by the appellate court on 18 November 2018.
- It has been noted that in the previous case, the petitioner filed a petition at the Court under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 to claim a maintenance of Rs. 1 crore towards reasonable and fair provision of the future and Rs. 1,50,000 for the iddat period.
- The petitioner also claimed to get back 70 grams of gold which was given as mehrand an amount of Rs. 1,41,680 (the value of 56 grams of gold) given by her parents which was allegedly taken away by the 1st respondent.
- The 1st respondent was working as a lab technician at Red Crescent Workers Health Centre, Doha. The petitioner along with the child were also staying with him altogether in the same place.
QUESTIONS RAISED
- Whether the amount demanded by the petitioner as maintenance is fair and reasonable on the ground of the capacity of the husband?
- Whether the evidence produced by the respondent against the material facts of the petitioner is legitimate?
ARGUMENTS ADVANCED BY THE APPELLANT
- The petitioner in the previous petition alleged that the 1st respondent was drawing a monthly salary of Rs. 2,00,000. The petitioner in her oral evidence stated that the 1st respondent has shown his salary certificate affixed with the signature of the authorized person of the Red Crescent Workers’ Health Centre to her on May, 2012.
- The petitioner and her son require a minimum monthly amount of Rs. 33,000 for their livelihood.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The respondent disputed that he was drawing only Rs. 60,000 per month. He provided a salary certificate issued by his employer to prove his actual earning before the Sessions Court, Ernakulam.
- The respondent presented his father as an evidence who was the attorney holder.
ANALYSIS BY THE COURT
- Both the parties went on a trial and after a detailed analysis of the evidence produced by both the parties, the following observations were made-
- The father of the 1st respondent was the attorney holder.
- It was proved by the petitioner that the 1st respondent was drawing a monthly salary of Rs. 2,00,000.
- After computing the amount for a period of 8 years, an amount of Rs. 31,68,000 was granted by the learned magistrate towards the petitioner as a fair and reasonable provision for maintenance.
- The above judgement was challenged by the 1st respondent before the Sessions Court, Ernakulam. The learned Additional Sessions Judge remanded for a fresh consideration by keeping aside the above order.
- The Hon’ble High Court stated that two things should be kept in mind while fixing a reasonable and fair amount of maintenance that is to be paid to a divorced women. Firstly, status of parties and secondly, capacity of the former husband to pay maintenance. The amount which shall be given as maintenance shall be sufficient for the women to take care of her future needs in this prevailing socio-economic scenario. To validate this statement, the court related two cases which were Seenath v. Iqbal & another [2009 (2) KHC 1009] and Aboobacker C.K. v. Rahiyanath & another [2008 (3) KHC 492].
- From the evidences provided by the petitioner, it was very evident to the Court that the petitioner was a highly qualified lady and she possessed M.Sc Degree in Chemistry, M.Tech in Industrial Catalysis and a B.Ed. in Physical Science. In addition to this, she was also registered as a junior research fellow at CUSAT and had also been selected for a project work at Baba Atomic Research Centre, Mumbai. Her father was a reputed B class contractor at the Public Works Department. Even her brothers and sisters were well settled in their life.
- Further from the evidences provided by the respondent, it was observed that his father is a construction contractor as well as a political leader.
- Therefore, the Court came to a conclusion that both the parties were hailing from very financially enriched and well settled families. The standard of living was very high.
- An important point raised up that no rebuttal evidence was provided by the 1st respondent against the positive evidence of the petitioner. His father did not had any direct knowledge regarding his job and income. On top of this, no salary certificate was produced by the respondent side in the present case before the High Court.
- Hence, based on material records and oral evidence the learned Magistrate concluded that the respondent was indeed drawing a salary of Rs. 2,00,000 and the said amount was reckoned for quantifying the amount towards fair and reasonable compensation under Section 3 of the Muslim Women (Protection of Rights and Divorce) Act. Therefore, on a rational basis keeping in mind the day to day expenditure required for food, clothing, shelter etc., the petitioner and her child requires Rs. 33,000 per month.
- While giving the judgement under the foundation of “reasonable and fair provision of maintenance” the High Court has referred to the order passed in Ahammed v. Aysha [1990 KHC 41]. In this case, the Court laid down the principle of 5 years purchase value for fixing the quantum payable as “maintenance”.
- The Court did not entertain the application on revisional jurisdiction under Section 397 of Cr.P.C to confer power upon the superior criminal court by a paternal jurisdiction so that there is no miscarriage of justice arising from misconception of law, irregularity of procedure, or any other thing.
- It has also been held by the Apex Court in the case of Shlok Bhardwaj v. Runika Bhardwaj and Others[(2015) 2 SCC 721] that the scope of the High Court should not include re-appreciation of evidence.
- Hence, the impugned judgement given by the Additional Sessions Court in the previous case was discarded as it was vitiated by illegality as the respondent persuaded the learned Judge with illegitimate certificate prejudicing him from the reality.
CONCLUSION
“Maintenance” is the only thing that a Muslim women can proudly claimed as her “personal right”. We should understand the value of this instrument and to which extent the Mahomedan Law has conferred its power on a woman. Even according to Section 6 (d) of the Transfer of Property Act, the right to maintenance cannot be transferred as it a “personal right”. Therefore, this a very powerful tool which is given to the Muslim women and no person can easily tamper with the provisions related to it.
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