Over 2 lakh Indian cases. Search powered by Google!

Case Details

KHAMARUNNEESA BEEVI versus ABDUL SALAM

High Court of Kerala

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


KHAMARUNNEESA BEEVI v. ABDUL SALAM - Crl Rev Pet No. 4066 of 2006 [2007] RD-KL 4504 (1 March 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 4066 of 2006()

1. KHAMARUNNEESA BEEVI,
... Petitioner

Vs

1. ABDUL SALAM,
... Respondent

2. STATE OF KERALA,

For Petitioner :SRI.K.ABDUL JAWAD

For Respondent :SRI.M.M.HUSAIN

The Hon'ble MR. Justice K.R.UDAYABHANU

Dated :01/03/2007

O R D E R

K.R. UDAYABHANU, J


=================================
CRL. R.P. NO. 4066 OF 2006 C
=================================

Dated this the 1st day of March 2007

O R D E R

The revision petitioner is the claimant in M.C. No.2/06 which was dismissed by the court below on the ground that there was no proper divorce as there was no pronouncement of talaq in compliance of legal formalities and also on the ground that petition has been filed after the period of limitation vide Article 137 of Limitation Act. It is pointed out by the revision petitioner that both the grounds cannot be sustained.

2. I find that in the counter statement filed by the respondent/husband the marriage is admitted as well as the divorce. Hence, in the absence of pleadings that there is no proper divorce/talaq, there is is scope for adjudication on the point as to whether the talaq pronounced is legal or not. In paragraph 3 of the counter statement filed by the respondent it is specifically admitted that he divorced the petitioner on the CRL. R.P.NO. 4066 OF 2006 compulsion of the father of the petitioner. The main contention in the counter statement is that he was not in a position to marry on account of ill health and poverty and it was not with his consent that the marriage was conducted and that he has no means at all to pay any amount to the petitioner. I find that there is no specific contention for the respondent in the counter statement filed that the formalities of the talaq, as per the stipulations of the Muhammadan Law, has not been complied with. It is after the petitioner produced Ext.P1, talaq nama that the case is developed that the formalities of the talaq has not been complied with. I find that there is no scope for such contentions in view of the admission in his pleadings that there was divorce. I find that the above finding of the court below that there was no proper divorce cannot be sustained.

3. So far as the contention that the application has been filed beyond the period of limitation, the finding is that the petitioner has not specified the date on which the respondent CRL. R.P.NO. 4066 OF 2006 refused to pay the maintenance. According to the petitioner, he was promising to pay the amount and was for just protracting the matter. The date of talaq is on 15.11.1999. The petition has been filed on 03.12.2003 which is beyond the period of limitation, vide section 137 of the Limitation Act, by about 1 year. The counsel for the revision petitioner has cited the decision in H assainar v. Raziya (1993 (2) KLT 805) as per which this court has held that in a case where the respondent has no case that he refused to pay maintenance at any time before three years counted backwards from the date of the petition he cannot raise such contention that the claim barred by limitation. In the circumstances of the case and in the light of the above cited decision I find that the finding on the above point also cannot be upheld. In the circumstances, the revision petition is allowed. The order of the court below is set aside.

4. The court below has not considered points 3 to 5 raised in M.C. No. 2/06. Hence, the matter is remitted back to the court CRL. R.P.NO. 4066 OF 2006 below to consider the above points after affording opportunity to the parties to adduce further evidence if they so desire. The parties shall appear before Judicial First Class Magistrate, Kothamangalam on 30.03.2007. The matter shall be disposed of at the earliest, at any rate, within six months from the date of receipt of this order. The Crl. R.P is disposed of accordingly.

K.R. UDAYABHANU, JUDGE.

RV CRL. R.P.NO. 4066 OF 2006


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.