Dismissed

Sherief v. C.M.Khamarunnisa

Kerala HC16 Oct 2023Crl.Rev.Pet/559/2011

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision petition challenging an order under the Muslim Women (Protection of Rights on Divorce) Act. The Court held that parties cannot waive maintenance rights via agreement as it violates public policy under the Indian Contract Act, and confirmed the lower court's direction for maintenance payment.

What did the court decide?

Revision petition dismissed; order of lower Revisional Court confirmed; petitioner directed to deposit remaining balance of maintenance ordered.

Sherief Vs C.M.Khamarunnisa — Pension and Retirement Benefits | Kerala HC (2023)

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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 C.S.DIAS

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MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945

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CRL.REV.PET NO. 559 OF 2011

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AGAINST THE ORDER/JUDGMENT CRRP 10/2008 OF THE COURT OF SESSION,

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KASARAGOD

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MC 49/2007 OF THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-

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I ,KASARAGOD

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REVISION PETITIONER/S:

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SHERIEF, S/O.MOHAMMED KUNHI

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THAYALPADINJAR HOUSE, THALANGARA,, KASARAGOD.

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BY ADV SRI.T.G.RAJENDRAN

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RESPONDENT/S:

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1C.M.KHAMARUNNISA, D/O.C.H MUHAMMED
SUBAIDA MANZIL, KELU GUDDE, RAMDAS NAGAR,, KASARAGOD -
671128.

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

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OTHER PRESENT:

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SMT.SEETHA.S., PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.R.P. No.559 of 2011

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C. S. DIAS, J.

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Crl.R.P. No.559 of 2011

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Dated this the 16^th day of October, 2023 ORDER

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The revision petition is filed questioning the legality, correctness and propriety of the order passed against the revision petitioner under Sec.3 of the Muslim Women (Protection of Rights on Divorce) Act ( in short 'Act') in Crl.R.P 10/2008 by the Court of Session, Kasaragod (Lower Revisional Court). The parties are, for the sake of convenience, referred to as per their status before the Trial Court. The revision petitioner was the respondent and the first respondent was the petitioner before the Trial

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Court.

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Crl.R.P. No.559 of 2011

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Facts in brief .

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The petitioner had filed M.C 49/2007 before the Court of the Judicial First Class Magistrate-I, Kasaragod (Trial Court) against the respondent, inter alia, alleging that their marriage was solemnised on 25.6.1992 as per the Muslim religious rites and customs. The respondent treated the petitioner with matrimonial cruelty and she was constrained to leave the matrimonial home along with children. An agreement was entered between the parties on 21.10.2005, the date on which talaq was pronounced by the respondent, wherein, the respondent agreed to return 50 sovereigns of gold ornaments that were entrusted by the petitioner to the respondent. But, there was no provision in the agreement regarding the maintenance amount to be paid by the respondent to the

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Crl.R.P. No.559 of 2011

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petitioner. Hence, the petitioner prayed that an amount

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of Rs. 6,43,001/- be paid as maintenance under the Act.

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The respondent resisted the application by filing

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an objection and contending that, as per the agreement,

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the petitioner had relinquished and surrendered her rights to claim maintenance. Hence, the application may be

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dismissed.

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In the Trial, the petitioner examined herself and

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two other witnesses as PWs 1 to 3 and marked Exts.C1

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and C2 in evidence. The respondent examined himself

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as DW1 and marked Ext.D1 in evidence.

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The Trial Court, after analysing the materials on

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record, dismissed the petition.

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Crl.R.P. No.559 of 2011

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Aggrieved by the said order, the petitioner

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preferred Crl.R.P. No. 10/2008 before the lower

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Revisonal Court.

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The lower Revisional Court, after analysing the materials on record, by the impugned judgment, allowed the revision petition and directed the respondent to pay the petitioner a sum of Rs.1,20,000/- as reasonable and fair provision of maintenance, Rs.6,000/- towards maintenance during the period of iddat and Rs.1001/- as

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mahar.

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It is aggrieved by the said order that the respondent before the lower Revisional Court has

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preferred this revision petition.

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Heard; Sri.T.G.Rajendran, the learned counsel appearing for the revision petitioner/respondent before

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Crl.R.P. No.559 of 2011

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the courts below and Smt.Seetha.S. the learned Public

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Prosecutor appearing for the second respondent-State.

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Is there any illegality, impropriety or irregularity in the impugned order passed by the lower Revisional Court.

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The petitioner’s case in MC No.49/2007 is that the respondent failed to maintain her, despite having sufficient means. Hence, the respondent is liable to pay an amount of Rs.6,43,001/- towards reasonable and fair provision of maintenance as provided under the Act.

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The respondent resisted the maintenance case by contending that as per Ext.D1 agreement executed before the Deputy Superintendent of Police, Kasaragod, all the disputes between the parties were settled and the respondent pronounced talaq. Therefore, he was not liable

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Crl.R.P. No.559 of 2011

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to pay any amount under the Act. Hence, the

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maintenance case was only to be dismissed.

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The Trial Court accepted the defence of the respondent, but the lower Revisional Court, after analyzing Ext.D1 agreement and finding that the respondent had not paid any amount towards maintenance to the petitioner and the respondent was doing business abroad, the lower Revisional Court held that the petitioner was entitled to maintenance @ Rs.2,000/- per month.

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Accordingly, the lower Revisional Court directed the respondent to pay the petitioner a sum of Rs.1,20,000/- towards reasonable and fair provision of maintenance @ Rs.2,000/- per month for a period of 5 years and pay Rs.2,000/- per month for three months

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Crl.R.P. No.559 of 2011

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during the period of iddat and pay Rs.1,001/- towards mahar.

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It is trite that the right of maintenance cannot be

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waived or relinquished by way of an agreement as it is against public policy and is hit by Sec.23 of the Indian Contract Act. Thus, the defence of the revision petitioner/respondent was found to be untenable and unsustainable in law.

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There is no error, illegality or impropriety in the the conclusions arrived at by the lower Revisional Court that the revision petitioner/respondent is liable to pay maintenance to the petitioner under the Act. Thus, I confirm the order of the lower Revisional Court.

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When the revision petition came up for admission on 23.02.2011, this Court stayed the execution

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Crl.R.P. No.559 of 2011

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of the order passed by the lower Revisional Court, subject to the condition that the revision petitioner deposits an amount of Rs.75,000/- before the Trial Court within two weeks from the date of order. It is submitted that the

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revision petitioner has complied with the interim order.

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In the result,

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(i) The revision petition is dismissed.

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(ii) The order passed by the lower Revisional Court

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in Cr.R.P. No.10/2008 is confirmed.

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(iii) The revision petitioner is directed to deposit the amount ordered by the lower Revisional Court within a period of two months from today.

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(iv) Needless to mention, if the revision petitioner has deposited any amount pursuant to the orders of this

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Court, only the balance amount need be deposited.

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Crl.R.P. No.559 of 2011

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(v) If the amount is deposited, the same shall be

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released to the 1^st respondent, in accordance with law, failing which the first respondent would be at liberty to execute the impugned order.

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sks/16.10.23

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Sd/-C.S.DIAS, JUDGE

Sherief v. C.M.Khamarunnisa

Case brief

What is this about?

What did the court decide?

Sherief v. C.M.Khamarunnisa

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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