Abdul Saleem vs Fousiya

S.S. Satheesachandran, J.—Challenge in the above petition is against an order passed in a proceeding under S. 3 of the Muslim Women

(Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as ''the Act''), affirmed by the Sessions Judge in revision with some

modifications over the quantum fixed to the divorced wife. Petitioner is the respondent in the proceeding, who is hereinafter referred to as the

''husband''. The applicant in the proceeding, a divorced woman is here in after referred to as the ''wife''. Her status as ''divorced woman'' is not

disputed. She raised various claims in the proceedings which were resisted to by the husband. After considering the materials produced, learned

magistrate allowed a sum of Rs. 4,500/-. (Rupees Four thousand five hundred only) as maintenance to her for the iddat period. Towards her claim

for return or refund of the value of 100 sovereigns of gold ornaments allegedly deprived from her by the husband, learned magistrate, on the

materials placed, accepted her claim only for 30 sovereigns of gold ornaments and the husband was directed to pay a sum of Rs. 2,10,000/-.

(Rupees two lakhs ten thousand only) towards the value thereof. She had raised a claim for Rs. 1,72,684/- towards the value of 20 gold bangles,

allegedly, donated to a Yatim Khana by her uncle on demand made by her husband to make such donation. Her uncle demanded the value thereof

was the basis of her claim. That was found acceptable to learned magistrate to direct the husband to pay such sum to the wife. Towards

reasonable and fair provision and maintenance fixing a sum of Rs. 3,000/- (Rupees three thousand only) per month and adopting a multiplier of 15

years, learned magistrate directed the husband to pay the wife a consolidated amount of Rs. 5,40,000/- (Rupees five lakh forty thousand only). As

against the claims awarded in favour of wife, husband preferred a revision. The wife also filed a revision contending that claim of monthly

maintenance fixed for awarding reasonable and fair provision and maintenance and also limiting claim for refund of sovereigns only to 30 sovereigns

was not correct and the claims awarded thereof have to be revised.

After considering both revisions together, learned Sessions Judge modified the order of magistrate enhancing quantum fixed for some of the

claims raised by the wife while affirming the sums awarded towards future maintenance and value of gold ornaments gifted to Yatim Khana. Claim

of the wife for maintenance for ''iddat'' period, Rs. 4,500/- awarded by magistrate was enhanced to Rs. 9,000/-. Value of 30 sovereigns of gold

ornaments awarded by magistrate at Rs. 2,10,000/- was enhanced to Rs. 3,75,000/-. In addition, learned Sessions Judge also awarded her a sum

of Rs. 1,00,000/- to wards the value of mehr. With the aforesaid modifications and enhancement on the quantum of claims, revisions were

disposed of.

I heard learned counsel on both sides.

Learned counsel for the husband knowing fully well of the interdiction covered under sub-s.(3) of S. 399 of the Code which debars a party who

has filed a revision before the Sessions Judge from taking up any proceedings by a second revision, submitting that such bar will be only in filing a

second revision but not in pursuing a challenge under S. 482 of the Code, if there are justifiable and sustainable grounds to do so, contended that

both the courts below have erred in adopting the multiplier of 15 years in fixing and awarding the quantum of future maintenance to the wife, and

the sums awarded to her towards refund of the cost of gold ornaments and also for the gift made to the Yatim Khana, which, according to the

counsel, are not supported by convincing legal evidence, are wrong, illegal, and liable to be interfered with. Learned counsel referring to

quantification made for awarding future maintenance in the decision rendered by this court in Ahammed Vs. Aysha, contended that period to be

reckoned thereof when lump sum amount is paid to the wife should not exceed five years. So much so, the sum quantified as future maintenance at

Rs. 5,40,000/- arrived on the basis of monthly maintenance fixed at Rs. 3,000/-, but taking a multiplier of 15 years, has to be reduced and limited

to a period of five years applying such multiplier to fix the sum. Though some arguments were projected by the counsel over the other challenges

raised as well, claims awarded to the wife towards refund of her gold ornaments and also gift made to Yatim Khana, limited scope of enquiry that

could be had under S. 482 of the Code being pointed to impeach the findings concurrently made by the two inferior courts such challenges were

not pursued.

Per contra, learned counsel for the wife pointing out her young age and also that she has a child out of her relationship with the husband who has

already remarried and that she continues to be a ''divorced wife'' contended that having regard to the income potentiality of the husband as well,

who is employed in a gulf country, quantum fixed towards future maintenance adopting a multiplier of 15 years by both the courts below

concurrently does not warrant any interference by this court in exercise of its inherent powers. So far as the other claims awarded to wife, but

challenged by the husband, it is contended that quantum of such claims were fixed based on legal evidence available in the case.

Challenges mooted over the claims awarded to wife towards refund of her gold ornaments and also gift made to Yatim Khana, findings and

conclusions over such claims formed by the magistrate after appreciating the materials tendered in the case were not open to any further scrutiny

even by the Sessions Judge in revision unless it had been shown that such findings suffered from such serious infirmity or were based on no

evidence warranting exercise of revisional jurisdiction. When Sessions Judge exercising re visional powers and after perusing the records of the

case found no infirmity whatsoever in the findings entered by the magistrate to uphold the claims so awarded to wife, the decision thereof on the

husband, who has challenged them in revision, is final, and, that cannot re-agitated or questioned before this court calling for exercise of the

inherent powers of this court to examine the challenges raised thereto. Of course, in a case where such challenges show that there has been an

abuse of process of court in awarding such claims, this court can definitely examine them on merits. After going through the orders passed by

magistrate and also that of Session Judge, I find, the claims there of have been assessed and awarded in favour of wife on the basis of evidence

produced in the case. So much so, challenges raised with respect to such claims awarded to the wife are only to be turned down.

So far as the challenge over the multiplier adopted in fixing reasonable and fair provision and maintenance to wife, of course, there is some force

as the multiplier of 15 years taken by both courts is excessive. True, this court has followed adopting of a multiplier of 5 years as pointed out by

the counsel for the husband in the decision reported, but, it cannot be stated that a multiplier beyond 5 years is impermissible. That has necessarily

to be examined taking into account the facts and circumstances presented in the case. Going through the orders of magistrate and also that of

Sessions Judge, it is noticed that the husband has income potentiality of Rs. 60,000/- per month. The only reason why the claim of the wife was

limited and fixed at Rs. 3,000/-, evidently, was that in her petition she has claimed that amount as monthly maintenance, but, for a period of 25

years. Her application moved later for amendment to seek an enhanced claim, was dismissed by the magistrate. Her age at the time of filing the

application is shown to be 28 years. She has a child born out of the wedlock with the husband. Learned magistrate has also stated in his order that

the evidence let in the case showed that she suffered from some illness. She is still remaining unmarried was also taken note of by the magistrate.

What is awarded as reasonable and fair provision and maintenance in a proceeding under S. 3 of the Act to a ''divorced wife'' is not liable to be

re-fixed, even if there is any change of circumstance later, whatever that be, can never be ignored of when a ''divorced wife'' moves for correction

of the quantum of the sum canvassed in the petition. Whether she has justifiable grounds to seek such correction cannot be decided solely on the

basis that she has previously shown the claim at a lesser sum. That cannot be given too much significance. Proceeding is before a magistrate and

there is no provision under the Code for amending the petition cannot stand in the way of permitting correction of the amount claimed, even if that

amounts to enhancement of claim, provided, adequate reasons and justifiable grounds are made out to seek such correction in the petition. Where

the husband is shown to be having an income potentiality of Rs. 60,000/- per month even if the wife has claimed a meagre sum as monthly

maintenance for fixing and awarding reasonable and fair provision and maintenance, court has necessarily to consider all the diverse facts and

circumstances presented in the case; claim made by the wife, that alone, cannot be the basis to limit the sum if she is otherwise found entitled to

more amount. Both learned magistrate and learned Sessions Judge, before the latter a revision was filed by wife challenging among others dismissal

of her application for enhancing the claim as unjustifiable, failed to take note that what is awarded under the proceedings should be reasonable and

fair provision and maintenance to a ''divorced wife'' from her husband, and if circumstances demand it could be on a higher side than what is

calculated as monthly maintenance by the wife.

In the present petition filed by the husband I do not intend to re-fix the monthly maintenance quantified by the magistrate, and affirmed by

Sessions Judge as well, though it is shown to be not proper and correct. However, taking note of the circumstances presented in the case that she

is aged 28 years when the proceedings commenced by her as a ''divorced wife'' and her husband then had income of Rs. 60,000/- per month, I

find a suitable multiplier with reference to quantum of monthly maintenance fixed has to be adopted for providing her reasonable and fair provision

and maintenance. Though the period of 15 years fixed by magistrate and concurred by Sessions Judge is a little bit on the higher side, where

normal period taken is only 5 years, in the given facts of the case I find, to provide the ''divorced wife'' just and reasonable amount for her

sustenance for the rest of her life, a multiplier of 10 years has to be adopted to fix reasonable and fair provision and maintenance to her. Any

multiplier less than that, in the given facts of the case, would result in grave injustice. Adopting a multiplier of 10 years the amount due to her

towards reasonable and fair provision and maintenance comes to Rs. 3,60,000/- (Rupees three lakh sixty thousand only) (3000 x 12 x 10 = Rs.

3,60,000/-). Her claim awarded under the above head at Rs. 5,40,000/ - shall stand reduced and limited to Rs. 3,60,000/-. Sums due under the

rest of the claims awarded with the above sum shall be paid to her by the husband depositing the amount before the magistrate court within a

period of one month. In default thereof, the wife is entitled to realise the sum taking appropriate proceedings as provided under law.

Subject to the modification in the quantum of reasonable and fair provision and maintenance reducing it from Rs. 5,40,000/- to Rs. 3,60,00/- that

alone, and upholding the rest of the claims under Annexure A2 order of Sessions Judge, the petition is disposed of.