Disposed

Abdul Azeez v. Shaharban

Kerala HC21 May 2019Crl.MC/5489/2016

Case brief

AI extract

What is this about?

The Court held that the disputes in the present criminal miscellaneous case regarding maintenance orders are fully regulated by a comprehensive mediation agreement. Consequently, the impugned judicial orders were superseded by the settlement terms, and the case was disposed of without independent adjudication of the maintenance claims.

What did the court decide?

The orders of the Judicial Magistrate and Sessions Court were superseded by the mediation agreement, and the present case was finally disposed of.

Abdul Azeez Vs Shaharban — Matrimonial and Divorce | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941

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CRL.MC.NO. 5489 OF 2016

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AGAINST THE ORDER/JUDGMENT IN MC 37/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,PERINTHALMANNA DATED 29-10-2012

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AGAINST THE ORDER/JUDGMENT IN CRRP 54/2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, MANJERI DATED 04-02-2015

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PETITIONER:

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ABDUL AZEEZ, S/O MUHAMMED HAJI, PALLATH HOUSE, KANJIRAPUZHA PO, POTTASSERY VILLAGE, MANNARKAD TALUK, PALAKKAD DISTRICT

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BY ADV. SRI.P.JAYARAM

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RESPONDENTS:

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1 SHAHARBAN, D/O ABOOBACKER HAJI, KODUYAZHAKKAL HOUSE, CHUNGAM-PALLIKKUTH, PATTIKKAD PO, KARYAVATTOM VILLAGE, PERINTHALMANNA, MALAPPURAM DISTRICT-679325.

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2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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SRI.P.V.VENUGOPAL FOR R1, SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R2

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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Crl.M.C. No. 5489 of 2016 ----------------------------------------Dated this the 21^st day of May, 2019

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O R D E R

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The petitioner herein was the respondent in M.C.No.37/2011 on the file of Judicial First Class Magistrate Court-II, Perinthalmanna, which has been filed by the 1^st respondent herein seeking grant of maintenance. The parties were spouses who were married on 13.10.1994 as per the Islamic Rites and Customs, and 2 children were born to them in that wedlock. The 1^st respondent (wife) was divorced by pronouncement of thalaq by the petitioner herein (husband). The 1^st respondent had filed the above said petition as per M.C.No.37/2011 raising a claim under Sec.3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, for grant of reasonable and fair provision, and also for maintenance. She had claimed Rs.15,000/- per month for iddat period and Rs.20,00,000/- as fair and reasonable provision. The said claims were disputed by the petitioner herein/husband in the said proceedings and enquiry was held. The learned Magistrate granted Rs.6,000/- per month to the 1^st respondent herein (wife) towards her claim for iddat period. An amount of

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..3..

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Crl.M.C. No. 5489 / 2016

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Rs.7,20,000/- was granted to her as reasonable and fair provision. It is pointed out by the petitioner that, the marriage of the 1^st respondent herein with the petitioner was a third marriage and earlier marriages had also ended up in dissolution, and that she had obtained considerable amounts towards her rights of a divorced Muslim woman. Aggrieved by the said order rendered in M.C.No.37/2011 by JFCM-II, Perinthalmanna, the 1^st respondent herein (wife) had challenged the order in revision before the learned Sessions Court concerned, who enhanced the maintenance for iddat period and also the reasonable and fair provision. The maintenance during iddat period was enhanced to Rs.21,000/and fair and reasonable provision was enhanced to Rs.8,40,000/-.

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According to the petitioner, the decision of the learned Sessions Court to enhance the amounts are absolutely illegal and perverse, and it is an abuse of the process of Court. It is in the light of these aspects, the petitioner herein (husband) has filed the instant Criminal Miscellaneous Case under Sec.482 of the Cr.P.C. with the following prayer.

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“ For the aforesaid and other grounds that may be urged at the time of hearing, it is most humbly prayed that the Hon'ble Court may be pleased to quash Annexure A1, the order dated 4.2.2015 in Crl.R.P. No.54/2012 on the files of Additional Sessions Judge-III, Manjeri.”

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..4..

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Crl.M.C. No. 5489 / 2016

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Heard Sri.P.Jayaram, learned counsel appearing for the petitioner, Sri.P.Venugopal, learned counsel appearing for the 1^st respondent herein and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the 2^nd respondent State.

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Both sides now submit that a comprehensive mediation agreement has been arrived at before the Mediation Centre attached to this Court pursuant to the order passed by the Division Bench of this Court in Mat.Appeal No.299/2012, and the mediation process is conducted not only in respect of the Mat.Appeal No.299/2012 but also in relation to all other pending litigative proceedings between these divorced spouses, in matters as in O.P.No.142/2011 on the file of the Family Court, Malappuram, M.C.No.37/2011 on the file of JFMC-II, Perinthalmanna and the impugned order in Crl.R.P.No.54/2012 on the file of the Addl. Sessions Court-III, Manjeri. It is also submitted by both sides that the Division Bench of this Court pursuant to the conditions arrived at by the said parties has finally disposed of the abovesaid Mat.Appeal No.299/2012 as per judgment dated 4.4.2019 by recording these terms and conditions of the mediation settlement agreement arrived at between the parties on 14.3.2019,

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..5..

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Crl.M.C. No. 5489 / 2016

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through the Mediation Centre attached to this Court. The said judgment of the Division Bench dated 4.4.2019 in Mat.Appeal No.299/2012 (in which petitioner herein is the first appellant therein and the 1^st respondent herein is the sole respondent therein) reads as follows:

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“ This appeal has been settled by way of mediation and the parties have entered into an agreement dated 14.3.2019. The agreement shall form part of this judgment. The Mat.Appeal shall stand disposed of in terms with the agreement between the parties. No Costs.”

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The abovesaid memorandum of mediation agreement dated 14.3.2019 arrived at between the parties through the Mediation Centre attached to this Court, and which is already been acted upon by the Division Bench in the other litigative proceedings between the parties, reads as follows:

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“MEMORANDUM OF AGREEMENT UNDER SECTION 89 OF THE CODE OF CIVIL PROCEDURE READ WITH RULES 24 & 25 OF THE CIVIL PROCEDURE (ALTERNATIVE DISPUTE RESOLUTION), RULES, 2008:

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The disputes between the parties are settled on the following terms and conditions:

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1.Mr.Abdul Azeez, 1^st appeallat has agreed to construct a 4 bed room house for the respondent Smt.Shaharban and daughter Anan Rush Mehar and Son Amal Thahsin in 30 cents of property comprised in Sy.No.35/4-3, Karyavattom Village, owned and possessed by them by way of Gift deed No.3403/18 of SRO, Melattoor, Malappuram District.

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2.As per the direction of the Hon'ble High Court of Kerala in Crl.M.C.No.5489/2016, Rs.2,00,000/- (Rupees Two lakhs only) was deposited by Mr.Abdul Azeez in M.C.37/2011 before the Judicial First Class Magistrate Court-II, Perinthalmanna. This amount can be released to Smt.Shaharban, the respondent.

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3. The respondent shaharban and daughter Anan Roosh Mehar,

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Crl.M.C. No. 5489 / 2016

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..6..

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petitioners in M.C.No.80/14 before the Judicial First Class Magistrate Court-II, Perinthalmanna, agreed that they have no further claim in the said case.

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4.Respondent Smt.Shaharban has agreed to co-operate to quash further proceedings in C.C.No.41/2011 pending before the J.F.C.M., Mannarkad for offences punishable under section 498A, 406, 341 and 323 r/w Sec.34 of the Indian Penal Code.

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5. 1^st appellant, Mr.Abdul Azeez has agreed to bear educational expenses and marriage expenses of daughter Anan Rush Mehar.

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6.Smt.Shaharban has agreed that the amounts received in different proceedings and expenses incurred for construction of the house being undertaken are towards the full and final settlement of all the disputes arising out of the matrimonial relationship between 1^st appellant and the respondent and that she will not raise any further claim as per the decree in O.P.No.142/2011 on the file of Family Court, Malappuram or the award in M.C.No.37/2011 on the file of JFCM, Perinthalmanna-II or the order in Crl.R.P. 54/2012 on the file of Sessions Court, Manjeri.

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7. The above Mat.Appeal No.299/2012 and Crl.M.C.No.5489/2016 may be closed in terms of this settlement agreement.

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8.The 2^nd appellant is no more, hence he is not a signatory to this settlement agreement.”

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It is now pointed out by Sri.P.Jayaram, learned counsel appearing for the petitioner herein and Sri.P.Venugopal, learned counsel appearing for the contesting respondent No.1 herein that, the abovesaid clauses in the mediation agreement, more particularly, clauses 3 & 6 thereof, would fully regulate the dispute between the parties. As per the said clauses, the 1^st respondent herein has fully agreed that she will not raise any further claim pursuant to the impugned award in M.C.No.37/2011 on the file of JFCM, Perinthalmanna-II or the impugned order in Crl.R.P.No.54/2012 on the file of Addl.Sessions Court-III, Manjeri.

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..7..

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Crl.M.C. No. 5489 / 2016

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Both sides now submit that, this Court may record the abovesaid mediation agreement, and may order that the disputes between the parties in relation to the present impugned proceedings will also stand regulated strictly in terms of the terms and conditions of the abovesaid mediation agreement. Since the counsel for the 1^st respondent herein who had appeared for her before the Division Bench in Mat.Appeal, is not the one who is appearing in the present case for the said party, this Court had ordered the personal appearance of the 1^st respondent herein, inorder to ascertain directly from her about the mediation agreement. Today the 1^st respondent herein has personally appeared before this Court. The 1^st respondent as well as the counsel for the said party have submitted that the disputes between the parties on account of the impugned proceedings challenged in this case, may be ordered to be regulated strictly in terms of the abovesaid mediation agreement.

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Accordingly it is ordered that the orders and directions in Anx.A-2 order dated 29.10.2012 rendered by the JFCM-II, Perinthalmanna in M.C.No.37/2011, as well as the order dated 4.2.2015 of the Additional Sessions Court-III, Manjeri in

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Crl.M.C. No. 5489 / 2016

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..8..

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Crl.R.P.No.54/2012 will stand superseded by the abovesaid terms and conditions of the mediation agreement.

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With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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MMG

Abdul Azeez v. Shaharban

Case brief

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Abdul Azeez v. Shaharban

Case brief

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