the medical expenses incurred by the petitioner subsequent
to the extra judicial divorce can be claimed from her former
husband. It seems from Section 3(3) of the Act that the
Magistrate has to pass an order directing her former
husband to pay such "reasonable and fair provision and
maintenance to the divorced woman as he may determine
as fit and proper having regard to the needs of the divorced
woman, the standard of life enjoyed by her during her
marriage and the means of her former husband
...................." Therefore, it is evident that in determining
"reasonable and fair provision and maintenance" the court
has to consider the needs of the divorced woman and fix an
amount which it deems fit and proper. In such a case, the
financial needs of the divorced woman has got importance
in arriving at the quantum. In order to have a proper
determination, the courts have to consider such needs of
the divorced woman also. When the petitioner has been
clamouring that she has been suffering from renal disease,
for which she had to spend huge amounts, it cannot be said
that those are not needs of a divorced woman. Therefore, in
such case, if she is able to produce evidence to prove that
she had spent much amounts for such medical treatments,
no doubt she would be entitled to claim that amount from
her former husband. It has come out that the counter
petitioner is well off.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.KEMAL PASHA
22ND DAY OF JULY 2015
Crl.MC.No. 2121 of 2009
ABBAS, S/O.MAMMU,
V
SOUDA K.V., D/O.KUNJIMON,
Citation:2016 CRLJ 3142 kerala
Whether a divorced Muslim woman is entitled to
recover the huge amount of medical expenses incurred by
her, from her former husband, who has the ability to meet
such a claim, is the main question to be decided here.
2. M.C.No.12 of 2005 of the Judicial First Class
Magistrate's Court-V, Kozhikode was filed under Section 3
(2) of the Muslim Women (Protection of rights on Divorce)
Act, 1986(hereinafter referred to as 'the Act') by a divorced
Muslim woman seeking reasonable and fair provision and
maintenance, maintenance during the period of Iddat, value
of her gold ornaments etc., under Section 3(1) of the Act.
3. This is a case wherein the counter petitioner in
the above said cases had pronounced thalaq on the
petitioner allegedly on account of his ill will towards her.
Even though in the counter, there was no specific contention
from the part of the counter petitioner that such an extra
judicial divorce was effected on account of her alleged
adulterous life with the brother of the counter petitioner, in
the evidence he has gone to the extent of saying that he
had witnessed the adulterous life of the petitioner with his
own brother at his house, on five occasions. According to
him, on all those occasions the three children were also
present in the very same room. On going through the
evidence and the allegations made by the counter petitioner
in the evidence, it seems that the said allegations are, prima
facie, not believable. He has admitted that in the counter he
has not mentioned specifically the adulterous life of the
petitioner.
4. It seems that the learned Magistrate had allowed
a monthly maintenance of 3,000/- for three months for the
Iddat period and further granted an amount of 3,000/- per
month for a period of 10 years, as reasonable and fair
provision and maintenance, by considering her age and the
absence of even a remote possibility of a subsequent
marriage alliance. It seems that the learned Magistrate had
arrived at a figure of 3,60,000/- under that head. Over and
above it, the learned Magistrate has allowed an amount of
45,000/- being the value of 10 sovereigns of gold
ornaments allegedly taken away by the counter petitioner
from the petitioner. When the amounts were added
together, the learned Magistrate has mistakenly calculated it
as 3,54,000/- instead of 4,05,000/-.
5. Both the parties have challenged the said order
before the Sessions Court, Kozhikode. The learned II
Additional Sessions Judge has found that the petitioner is
entitled to an amount of 9,000/- by way of maintenance for
the period of Iddat, at the rate of 3000/- per month, and
similarly she is entitled to an amount of 3,60,000/- by way
of reasonable and fair provision and maintenance for the
future period. The learned Additional Sessions Judge has
found that there is no sufficient evidence to prove the claim
for an amount of 45,000/-, which was ordered by the trial
court and therefore, it was held that the petitioner is not
entitled to claim the said amount of 45,000/-.
6. Challenging the denial of the claim for 45,000/-,
the petitioner has filed Crl.R.P.No.1649 of 2010. Claiming
inadequacy of the amounts under other heads,
Crl.M.C.No.3913 of 2009 is also filed by the petitioner.
Challenging the order, the counter petitioner has filed
Crl.R.P No.2377/2009 as well as Crl.M.C. 2121/2009.
7. Heard the learned counsel for the petitioner Sri.
Vinod Singh Cheriyan and the learned counsel for the first
respondent Sri.P.V.Kunhikrishnan.
8. According to the learned counsel for the
petitioner, the amount allowed by the courts below as
monthly maintenance is totally inadequate. Further, it is also
argued that the petitioner had to spend an amount of
2,31,000/- for the expenses towards treatment for her renal
disease and therefore, the counter petitioner has to pay the
said amount also to the petitioner. It has been pointed out
that the petitioner is in utter bankruptcy, since she had to
borrow various amounts for her continued medical
treatments.
9. Per contra, the learned counsel for the counter
petitioner has argued that the amount calculated by the
courts below as monthly maintenance is not liable to be
interfered with. At the same time, according to him, both the
courts below ought not have considered such a monthly
maintenance for 10 years as reasonable and fair provision
and maintenance for future period. It is further argued that
as the claim for medical expenses has been forwarded for
the first time in Crl.M.C.No.3913 of 2009 by the petitioner,
this Court while exercising the jurisdiction under Section 482
Cr.P.C. is not excepted to pass an order on the same.
10. It is not in dispute that reasonable and fair
provision and maintenance to be paid during the period of
Iddat is not only with regard to the maintenance to be paid
for the period of Iddat, but also it should be a reasonable
and fair provision and maintenance to enable her to
maintain herself for the future period also.
11. In Crl.M.C.No.3913 of 2009 the petitioner has
produced the medical records of the petitioner which would
prima facie reveal that she had to spend an amount of
2,31,000/- towards medical bills for her renal problems.
12. According to the learned counsel for the counter
petitioner, the counter petitioner is entitled to challenge the
veracity and correctness of the medical bills and therefore,
the trial court should be the proper forum to enter a decision
on it.
13. On hearing the learned counsel for the petitioner
and the counter petitioner, and on a perusal of the records, it
seems that there is no sufficient evidence to arrive at a
conclusion that the petitioner is entitled to an amount of
45,000/- as ordered by the learned Magistrate towards the
cost of the gold ornaments allegedly taken away from her.
In the absence of concrete evidence, there is absolutely
nothing to upset the findings entered by the learned
Additional Sessions Judge in the criminal revision regarding
the said aspect. On going through the matter relating to the
Crl.R.P. 2377 of 2009 and Crl.M.C. 2121 of 2009, I do not
find any merits in the matter.
14. The main argument forwarded by the learned
counsel for the counter petitioner is that both the courts
below ought not to have allowed the maintenance to be paid
for 10 years towards reasonable and fair provision and
maintenance for future period.
15. Earlier there were some guidelines laid down by
this Court through the decision in Ahammed v. Aysha [1990
(1) KLT 172] rendered by a learned Single Judge of this
Court that the amount payable as maintenance for a period
of 5 years can be taken as reasonable and fair provision
and maintenance for future period. After the said decision,
much water has flown under the bridge. The social scenario
of life has undergone a vast change. When the petitioner
was aged only 28, she was thrown out from the matrimonial
home with her three children. It has to be considered that
there was no scope for a subsequent marriage. Therefore,
in such cases, it is the duty of her former husband, who has
effected an extra judicial divorce, to see that she is
maintained in future properly. That is the reason why the
legislature in its wisdom has incorporated the provision for
reasonable and fair provision and maintenance for her
needs. Therefore, any straight jacket formula cannot be
evolved as to what should be the reasonable and fair
provision and maintenance. That can be arrived at only
through judicial indulgence.
16. Even if the petitioner is not claiming any particular
amount under the said head or even when a lesser amount
is claimed by the petitioner under that head, the courts are
not powerless to grant reasonable and fair provision and
maintenance. When the terms "reasonable and fair" are
incorporated in the said statutory provision, it is evident that
it is for the court to decide as to what is "fair and
reasonable" and not for the parties. This Court had an
occasions to deal with the said question in Cehmbrath
Arakkal Jamal v. Kunnummal Manseera[2014(1) KLT
930].
17. The next question to be considered is whether
the medical expenses incurred by the petitioner subsequent
to the extra judicial divorce can be claimed from her former
husband. It seems from Section 3(3) of the Act that the
Magistrate has to pass an order directing her former
husband to pay such "reasonable and fair provision and
maintenance to the divorced woman as he may determine
as fit and proper having regard to the needs of the divorced
woman, the standard of life enjoyed by her during her
marriage and the means of her former husband
...................." Therefore, it is evident that in determining
"reasonable and fair provision and maintenance" the court
has to consider the needs of the divorced woman and fix an
amount which it deems fit and proper. In such a case, the
financial needs of the divorced woman has got importance
in arriving at the quantum. In order to have a proper
determination, the courts have to consider such needs of
the divorced woman also. When the petitioner has been
clamouring that she has been suffering from renal disease,
for which she had to spend huge amounts, it cannot be said
that those are not needs of a divorced woman. Therefore, in
such case, if she is able to produce evidence to prove that
she had spent much amounts for such medical treatments,
no doubt she would be entitled to claim that amount from
her former husband. It has come out that the counter
petitioner is well off.
18. The learned counsel for the petitioner has pointed
out that the petitioner had to spend an amount of
2,31,000/- towards her medical treatments for renal
problems. Medical bills are also produced. The learned
counsel for the counter petitioner has challenged the
veracity of the said medical bills. In such case, at this stage
when this Court is exercising its jurisdiction under Section
482 Cr.P.C. it is not fair and proper for this Court to decide
the claim of the amount allegedly spent as treatment
expenses. Such a question has to be decided by the trial
court. As far as the other amounts are concerned, this Court
is of the view that the same need not be interfered with. It is
true that in the present social scenario it may not be
possible for the petitioner to pull on with a meagre amount
of 3,000/- per month as maintenance. At the same time, it
has to be noted that the counter petitioner has to pay such
amount for 10 years as lump sum. It has been pointed out
that so far the counter petitioner has paid an amount of
2,05,000/- only, out of the amount of 3,60,000/-. It is a
hard reality that the said amount which the counter
petitioner ought to have paid during the period of iddat has
not been paid so far. In such a case, normally the courts
have to charge interest also on such amount for delayed
payment. At the same time, it seems that there is no such
claim forwarded by the petitioner so far. Whatever it is, the
counter petitioner is directed to pay the balance amount of
1,55,000/- within two months from today to the petitioner,
failing which, the petitioner would be entitled to recover the
said amount with interest at the rate of 12% per annum.
Those questions are not open for further deliberation in the
case.
19. The matter is remitted to the trial court for
deciding whether the petitioner has spent any amounts
towards her medical treatments. In case it is found that any
amount has been spent by the petitioner for her medical
treatment, after verifying the bills produced before this
Court, the trial court shall order payment of the said amount
by the respondent, over and above, the amounts earlier
granted. The records produced by the petitioner shall be
transmitted to the trial court at the earliest. The trial court
shall dispose of the matter, as expeditiously as possible, at
any rate, within a period of four months from the date of
receipt of a copy of this judgment.
In the result, Crl.R.P.No.2377 of 2009 and
Crl.M.C.No.2121 of 2009 are dismissed, and Crl.R.P.
No.1649 of 2010 and Crl.M.C.No.3913 of 2009 are disposed
of with the above directions.
Sd/- B.KEMAL PASHA, JUDGE
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