IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 Crl.MC.No. 2300 of 2007() ------------------------- CRRP.147/2004 of I ADDL. SESSIONS COURT, PALAKKAD MC.31/2001 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... PETITIONER(S): REVN. PETITIONERS/PETITIONERS --------------------------------------------- 1. SOFIA, D/O. KABEER, AGED 25 YEARS, CHAKKANTHARA, MUDAPPALLUR, ALATHUR TALUK, (NOW RESIDING AT SHEEJA MANZIL, THATTUNGAL, YAKKARA AMSOM, DESOM, PALAKKAD TALUK. 2. JEENA, (MINOR), D/O. SOFIA, AGED 6 YEARS, RESIDING AT -DO- BY GUARDIAN 1ST PETITIONER. BY ADV. SRI.P.P.RAMACHANDRAN RESPONDENT(S): RESPONDENT/RESPONDENT ------------------------------------- SHAJAHAN, S/O. HILAR, AGED 34 YEARS, RESIDING AT CHANTHAPURA, UNNIRAMKUNNU, MEPPARAMBU, PALAKKAD TALUK. BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------ Crl.M.C. No. 2300 of 2007 ------------------------------------ Dated this 24th day of March, 2010 O R D E R This petition is filed against the order of the Sessions Court, in a criminal revision petition. 2. Petitioners, are divorced wife and child of respondent herein. They filed a petition under Section 3(1) of the Muslim Woman (Protection of Rights on divorce) Act, 1986 (for short 'the Act'), claiming return of 8 sovereigns of gold ornaments and Rs.30,000/- entrusted with the respondent herein, and also reasonable and fair provision and maintenance to the child. According to petitioner, the respondent was working as an Auto consultant, getting an income of Rs. 5,000/-. She also claimed Rs. 4,500/- as maintenance for Iddat period and Rs. 2 lakhs for fair and reasonable provision. The respondent admitted marriage and paternity. According to him, gold and money were not given at the time of marriage. Whatever gold ornaments were given to petitioner had been taken with her, when she had left the house. The respondent is a coolie worker, getting a sum of Rs.1,000/- per month. The claim made by petitioner is highly Crl.M.C. No. 2300 / 2007 2 excessive, it is contended by him. 3. On an analysis of the evidence adduced by both sides, learned Chief Judicial Magistrate granted Rs.2,400/- towards maintenance for Iddat period and Rs.16,800/- towards reasonable and fair provision and a sum of Rs.7,200/- to the child (at the rate of Rs.300/- per month for a period of 2 years). Petitioners filed a revision before the Sessions court, challenging the order and the revisional court allowed the revision in part. The order disallowing the claim for return of Rs.30,000/- was set aside, and a direction was issued to respondent to pay Rs.30,000/- more. The other orders were confirmed. This petition is filed challenging the order in revision. 4. Heard learned counsel for petitioner. Contesting respondent received notice. But, he did not enter appearance in this proceedings. Learned counsel for petitioner argued that petitioner had claimed 8 sovereigns of gold ornaments, which she entrusted with the respondent at the time of marriage. Her father also gave evidence, supporting PW1. The Secretary of the Mujahid Mazjid Mosque was also examined as PW3 to prove that Crl.M.C. No. 2300 / 2007 3 Rs.30,000/- and 8 sovereigns of gold were entrusted with the respondent. The revisional court accepted the claim with respect to the money, but turned down the claim regarding the gold ornaments. This was done by believing all the three persons examined and hence there is no justification in rejecting the claim for 8 sovereigns of gold, it is submitted. 5. It is also argued that the court below committed a mistake in not enhancing the amount towards fair and reasonable provision and maintenance during iddat period. It was submitted that learned Chief Judicial Magistrate had fixed the monthly maintenance at Rs.800/-, on the basis that respondent was getting Rs.1,000/- as income. But, the revisional court found that the claim made by respondent that he used to get Rs.1,000/- is not correct. It will appear from the order that he is getting more income than Rs.1,000/- and, if that be the case, there should not have been increase in the monthly maintenance awarded to petitioner and also the child. 6. The child was awarded only Rs.300/- per month and, being a claim under Section 3(1)(b) of the Act, the child can be Crl.M.C. No. 2300 / 2007 4 awarded only maintenance upto period of 2 years. In such circumstances, the monthly maintenance may be enhanced, taking the monthly income as Rs.5,000/-, it is submitted. The respondent is working abroad now and he has sufficient means to pay much more than Rs.500/-, it is submitted. 7. On going through the order and evidence of PW3, I find that the court has not committed any serious error in rejecting the claim towards 8 sovereigns of gold. PW3 admitted in cross- examination that he had only hearsay regarding entrustment of 8 sovereigns of gold. However, he stated that he had seen the money being handed over at the time of marriage. It was in such circumstances Rs.30,000/- was directed to be returned, and the claim of 8 sovereigns was turned down. Except the oral testimony of PW1 and PW2, who are highly interested persons, there is nothing to corroborate their evidence regarding entrustment of gold ornaments. The document produced from the mosque will only show payment of mahar. But, no document is also produced to support the claim of gold ornaments. In such circumstances, I do not find any reason to Crl.M.C. No. 2300 / 2007 5 interfere with the order in refusing the claim for return of 8 sovereigns of gold. 8. However, regarding the order in respect of maintenance, the revisional court found that the claim made regarding the monthly income as Rs.1,000/- is not acceptable. According to respondent, he was getting Rs.8,000/- per moth, and not Rs.1,000 per month. As rightly held by the revisional court the claim made by the respondent that his monthly income is only Rs.1,000/- cannot be accepted. But, the revisional court did not fix what will be the amount respondent fetches as the monthly income. Going by the evidence of respondent that he is getting Rs.80/- per day and hence, the monthly income would at least be at a minimum of Rs.3,000/- per month, if he works 25 days in a month. In such circumstances, as increase in the monthly maintenance ought not to have been awarded. 9. There can be no doubt that Rs.800/- fixed as monthly maintenance, as against a monthly income of Rs.1,000/- was on the higher side. If it is taken that he is getting double the Crl.M.C. No. 2300 / 2007 6 amount as monthly income, there has to be some nominal increase in the amount ordered both to the mother and the child. The revisional court committed an error in not taking these facts into account, even the evidence given by CPW1 regarding his income. Therefore, I find that the monthly maintenance awarded in respect of the child has to be enhanced nominally. 10. As far as wife is concerned, she is already awarded Rs.800/- even though the amount fixed by the Chief Judicial Magistrate was only Rs.1,000/- per month as income. The claim made for the child is Rs.500/-. But the child was awarded only Rs.300/-. An increase of Rs.200/- for the child has to be awarded to meet the ends of justice. In the result, the following order is passed: 1. The order passed by revisional court in respect of claim for gold ornaments is confirmed. 2. The order passed by the revisional court in respect of maintenance awarded to the mother, who is the 1st petitioner is also confirmed. Crl.M.C. No. 2300 / 2007 7 3. The respondent is directed to pay a monthly maintenance of Rs.500/- to the child and, in total a sum of Rs.9600/-. Petition is partly allowed. Sd/- K. HEMA, JUDGE ln