Tuesday, 11 October 2016

Whether court can direct husband to pay interest if payment of maintenance amount is delayed?

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.


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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