CRLP/1389/2006 of Fathima Aziza, Vs P.Shujavulla Khan, on 29 December 2009

HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

CRIMINAL PETITION No.1389 OF 2006Date: 29.12.2009

Between:Fathima AzizaAnd:

…..Petitioner

P.Shujavulla Khan and another

…..Respondents.

HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULUCRIMINAL PETITION No.1389 of 2006ORDER:

This petition is filed under Section 482 Cr.P.C questioning theorder dated 02.12.2005 passed by the IV Additional Sessions Judge,East Godavari District, Kakinada in C.R.P. No.74 of 2004 confirmingorder dated 25.05.2004 of the III Additional Judicial Magistrate of theFirst Class, Kakinada in M.C. No.6 of 2000.

2) There is no dispute about relationship between the parties. The petitioner is divorced wife of the 1[st] respondent. Talak waspronounced by the 1[st] respondent on 17.07.1999. The same wasinformed to the petitioner in reply notice dated 30.10.1999. Thepetitioner approached the Magistrate’s Court under Section 3(2) of theMuslim Women (Protection of Rights on Divorce) Act, 1986 (in short,‘the Act’) against the 1[st] respondent for return of A, B, C, D scheduleproperties and also Mehar amount of Rs.5,550/- apart from Rs.1,000/-per month for three month’s during Iddat period and further sum ofRs.1,00,000/- towards reasonable and fair provision for hermaintenance. The 1[st] respondent opposed the petition contendingthat the petitioner has taken away all her gold ornaments and thatJahez articles were returned to the petitioner through Navata Transport and that there are no other articles to be handed over by the 1[st]respondent. There is no dispute that the 1[st] respondent depositedRs.5,550/- towards Mehar amount and also Rs.2,100/- towards amountpayable for Iddat period of three months with Government Khazi andthat the petitioner after filing this petition before the Magistrate hadwithdrawn the said amounts. Both the Courts below came to theconclusion that there are no articles out of A, B, C, D schedules to behanded over by the 1[st] respondent to the petitioner.

3) It is contended by the petitioner’s counsel that amount ofRs.2,100/- deposited for Iddat period of three months is a pittance andthat both the Courts below should have enhanced the said amount to areasonable amount. What was claimed by the petitioner towardsamount payable during Iddat period was Rs.1,000/- per month for threemonths. The 1[st] respondent has deposited amount at the rate ofRs.700/- per month for three months totalling Rs.2,100/-. There is nocomplaint made by the petitioner before both the Courts below that theamount of Rs.700/- per month for Iddat period is not reasonable andfair, when compared to her claim of Rs.1,000/- per month. This Courtwhile entertaining a petition under Section 482 Cr.P.C does not seeany reason to interfere with quantum of amount payable during Iddatperiod.

4) It is contended that both the Courts below did not properlyappreciate evidence and should have ordered return of gold jewellery. The petitioner claimed not only gold jewellery, but also other articles. It is proved by the 1[st] respondent through his evidence as R.W-1 andevidence of Navata transport employee as R.W-2 and by filing Ex.R-1to the affect that he sent articles in seven packings whose total weightwas 1.40 tonnes from Anantapur to Kakinada. Even though P.W-2who is father of the petitioner(P.W-1) denied having received the saidarticles, ultimately had to accept that Ex.R-1 contains his signatureacknowledging receipt of those articles. It shows that the petitioner

approached the Magistrate with a false case. In so far as goldjewellery is concerned, it is the 1[st] respondent’s case that jewellerywas with the petitioner herself and that she took back the jewellerywhile leaving his house. No doubt, 1[st] respondent as R.W-1 admittedthat he pledged gold ornaments of the petitioner with State Bank ofIndia. But, there is no dispute that P.W-2 had discharged the said loanincurred by the 1[st] respondent on pledge of gold ornaments. It is therein evidence that the petitioner was having a bank locker and that shewas operating the same individually and that she closed the samewhile leaving company of the 1[st] respondent. Having regard to totalityof circumstances, the Courts below have rightly come to theconclusion that there are no other articles or jewellery with the 1[st]respondent to be handed over to the petitioner.

5) With regard to making reasonable and fair provision formaintenance after Iddat period of three months, the petitioner’scounsel placed reliance on Danial Latifi V. Union of India[[1]]. In thesame decision, it was pointed out that two different obligations arecreated by the Act, one under Section 3 for making reasonable and fairprovision for his divorced wife and secondly under Section 4 of the Actfor providing future maintenance to the divorced wife in case she isunable to maintain her and remained un-married without going for re-marriage. Therefore, it is open to the petitioner to approach theMagistrate under Section 4 of the Act to claim maintenance from the1[st] respondent in case she is unable to maintain herself. That will notclothe her with a right to claim future maintenance under Section 3(2)of the Act. In that view of the matter, I am of the opinion that there areno grounds for interference in this matter under Section 482 Cr.P.C.

6) In the result, the petition is dismissed.

_____________________________

SAMUDRALA GOVINDARAJULU, J

[1]AIR 2001 SUPREME COURT 3958(1)