K KUNHAMMED HAJI Vs. K AMINA

JUDGEMENT

(1.) This Criminal Miscellaneous Case filed under S. 482 of the Criminal Procedure Code (for short 'the Code') was posted before us along with Criminal Miscellaneous Case No. 1861/1993 on the basis of a common reference order. The specific question referred to the Division Bench has been answered by us in Criminal Miscellaneous Case 1861/1993 by a separate judgment and need not be considered again in this case. As per the judgment in Criminal Miscellaneous Case 1861/1993, we have held that the provisions contained in S. 397(3) of the Code will not be a bar for invoking the jurisdiction of this Court under S. 482 of the code. In the light of the said judgment, it has to be held that this Criminal Miscellaneous Case is maintainable in law.

(2.) Facts, necessary to deal with the contentions on merit raised in the case, can be summarised thus : The 1st respondent is the divorced wife of the petitioner. She filed Maintenance Case No. 118 of 1989 in the Court of the Additional Chief Judicial Magistrate, Thalassery, under S. 3 of the Muslim Women (Protection of Rights on Divorce) Act 1986 (for short 'the Act'). In the petition, 1st respondent claimed (i) an amount equal to the sum of mahr according to Muslim Law; (ii) amount towards maintenance during the period of iddat; and (iii) a reasonable and fair provision for future maintenance. The learned Magistrate rejected the claim towards mahr. Rs. 5,000.00 was allowed as maintenance payable during the period of iddat. The learned Magistrate also awarded Rs. 30,000.00 as reasonable and fair provision for her future livelihood. Aggrieved by the order, the petitioner preferred Criminal Revision Petition 143/1992 before the Court of Sessions, Thalassery. The learned Sessions Judge dismissed the revision confirming the order passed by the learned Magistrate. The Criminal Miscellaneous Case has been filed invoking the jurisdiction of this Court under S. 482 of the Code.

(3.) On the above facts, learned senior counsel for the petitioner Shri T. P. Nambiar has mainly advanced two contentions. Firstly, it was submitted that grant of Rs. 30,000.00 as future maintenance under S. 3 of the Act is illegal and unsustainable in law. Secondly, it was contended that the quantum of maintenance fixed is totally arbitrary and illegal. Learned counsel submitted that both the courts below have failed to take note of the fact that there is no reliable evidence on record to show the income of the petitioner and the finding regarding the means of the petitioner is based solely on surmises and conjectures.