T K MOIDU HAJI Vs. KONNAPALARKANDY MARIYAM

JUDGEMENT

(1.) Two interesting questions have primarily arisen for consideration in this petition under Section 482 of the Code of Criminal Procedure filed by a former husband who has suffered an order under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act').

(2.) The respondent herein who is the divorced wife of the petitioner, initiated proceedings under Section 3 of the Act alleging inter alia that she had been denied the dues payable under the Act after her divorce. She also claimed that the petitioner had not returned her gold ornaments and cash given to her by her parents and relatives at the time of marriage. It was also averred in the petition that her former husband had wilfully refused to pay her 'Mahr' which was promised at the time of marriage. A total sum of Rs. 2,42,786/- was claimed by the respondent under various heads, including maintenance during the period of Iddat.

(3.) In the counter statement petitioner contended that he had married the respondent in the year 1997 after the death of his first wife. According to the petitioner, he decided to marry the respondent since he wanted company in his old age. He was 73 at the time of marriage. But soon after the marriage, he realinsed that the respondent was incapable of having sexual intercourse since she did not possess any of the anatomical or physiological attributes of a female, though in outward appearance she looked like a woman. Petitioner asserted that the respondent was not a woman at all and therefore the marriage was not consummated. When the respondent realised that the petitioner had detected this deformity in her, she had left the matrimonial home after discussing the matter with him. In short, while resisting the claim made by the respondent under Section 3 of the Act, it was contended by the petitioner that the respondent not being a woman and the "marriage between him and her not having been consummated, she was not entitled to invoke the above statutory provision.