IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 Crl.MC.No. 3315 of 2003(D) -------------------------- M.C.8/2000 OF J.F.C.M.-I, MANJERI CRL.R.P.NO.50/02 OF SESSIONS COURT, MANJERI PETITIONER(S): REVISION PETITIONER/COUNTER PETITIONER: ------------------------------------------------------ MACHICHERI KOYAMU, S/O. MOIDEEN, AGED 72 YEARS, PANAKKAMPADAM, ORAYAMKUNNU, MAMPATTUMOOLA P.O., KALIKAVU, MALAPPURAM DISTRICT. (WITHIN THE LIMIT OF KALIKAVU POLICE STATION). BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): RESPONDENT/PETITIONER & STATE: ------------------------------------------------------------ 1. KIZHAKKETHIL AYISHA, D/O. ALAVI, AGED 62 YEARS, MAMPATTUMOOLA, CHOKKAD, KALIKAVU AMSOM, NILAMBUR TALUK, MALAPPURAM DIST. (WITH IN THE LIMIT OF KALIKAVU POLICE STATION) 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.SAMSUDIN FOR R1 PUBLIC PROSECUTOR SHRI C.M.NAZAR FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.4050/03 IN CRL.M.C.NO.3315/03 //DISMISSED// 11.2.09 SD/-M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.3315 OF 2003 ----------------------------------------------------- DATED THIS THE 13TH DAY OF FEBRUARY , 2009 O R D E R The petitioner in this petition is the counter petitioner in M.C.No.8/2000 on the file of the Judicial First Class Magistrate's Court-I, Manjeri. That M.C. was filed by the first respondent herein who filed a petition under Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The allegation in that petition as revealed from the statement of facts stated in this petition is that the petitioner herein married the first respondent about 40 years back. After the marriage, the petitioner misappropriated gold ornaments, wooden cots, etc. and the first respondent was divorced by the petitioner on 5.9.1999. About 10 months before 5.9.1999, she was sent out of the house by the petitioner. Accordingly, the first respondent as the wife claimed Rs.6,000/- towards iddat and Rs.1 lakh towards Matah and also claimed Rs.33,000/- towards value of gold ornaments. The allegations in that petition filed by the first respondent herein was disputed by the petitioner who filed a counter statement wherein the petitioner has denied the pronouncement of Talaq and also the income of the petitioner as stated in the petition at the rate of CRL.M.C.No.3315/03 -2- Rs.8,000/- per month. It was also contended that the first respondent is not the divorced wife and is not entitled to get any amount under Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act. Misappropriation of gold ornaments alleged against the petitioner was also disputed. According to the petitioner, the first respondent deserted him and left the company of the petitioner and for that reason he has married again and prayed for dismissal of the petition. 2. PWs 1 to 4 were examined on the side of the petitioner and Exhibits P1 and P2 were marked. On the side of the counter petitioner in the M.C., Rws 1 and 2 were examined and Exhibit R1 was marked. Considering the oral testimony of the witnesses and the documents produced at the instance of the petitioner and the counter petitioner in the M.C., the learned Magistrate has passed an order dated 14.11.2002, whereby the petition was allowed in part. The respondent in the M.C. was directed to pay an amount of Rs.30,000/- to the petitioner as Matah and Rs.1,500/- as maintenance during idath period at the rate of Rs.500/- per month. The prayer for realisation of Rs.33,000/- towards misappropriation of gold ornaments by the respondent was rejected. 3. Aggrieved by the finding in the M.C., the petitioner preferred criminal revision petition before the Court of Sessions Judge, Manjeri and CRL.M.C.No.3315/03 -3- as per order dated 24.2.2003, the learned Sessions Judge has reappreciated the evidence on record, both oral and documentary, and came to the conclusion that the finding of the learned Magistrate was with sufficient reasonings and on the basis of the evidence adduced by both parties and that finding was not illegal. Accordingly, the revision petition preferred by the counter petitioner in the M.C. was dismissed. Subsequently, this petition was filed by the petitioner herein, who is the counter petitioner-respondent in the M.C. with the prayer to set aside Annexures A and B, the orders in M.C.No.8/2000 dated 14.11.2002 and Crl.R.P.No.50/02 dated 24.2.2003 passed by the Judicial First Class Magistrate Court-I, Manjeri and Sessions Court, Manjeri respectively. 4. Heard the learned counsel appearing for the petitioner and also the first respondent. 5. It is submitted by the learned counsel appearing for the petitioner that the petitioner herein is aged 78 years and that he has not divorced the first respondent on 5.9.1999 as alleged in the M.C. and for that reason, the first respondent is not entitled to get any amount under Section 3(1) of Muslim Women (Protection of Rights on Divorce) Act. According to the learned counsel, the first respondent was deserting the petitioner for several years and the petitioner has not misappropriated CRL.M.C.No.3315/03 -4- any of the gold ornaments of the first respondent. Therefore, the concurrent finding of both the lower courts that there was valid Talaq and hence the first respondent was entitled to get a total amount of Rs.31,500/- under the heads Matah and iddat are incorrect and are liable to be set aside. According to the learned counsel, no sufficient evidence was adduced from the side of the first respondent herein to prove that there was valid Talaq or divorce. The learned counsel relied on the decision reported in Ummer Farooque v. Naseema (2005(4) KLT 565). 6. The prayer in this petition is opposed by the learned counsel appearing for the first respondent. According to the learned counsel of the first respondent, both courts below have appreciated the evidence of the witnesses and though there were some minor discrepancies in their versions, it did not affect the veracity or credibility of the witnesses and their versions were accepted to come to the conclusion that there was valid divorce and Talaq was already pronounced by the petitioner herein and the first respondent was found entitled for getting the amount as ordered by both the courts concurrently. Further, no reappreciation of evidence is possible under Section 482 of Cr.P.C. by invoking the inherent jurisdiction of this Court for which the learned counsel has relied CRL.M.C.No.3315/03 -5- on the decision reported in Rajathi v. C.Ganesan (1999 (6) SCC 326). 7. The learned counsel appearing for the petitioner has read the evidence of PWs 1 to 4 as a whole. The evidence tendered by PW2 and the document marked as Exhibit P2 as such were not relied on by the learned Magistrate as revealed from the impugned order Annexure A. But, in the light of the evidence adduced by PWs 3 and 4 regarding the pronouncement of Talaq by RW1, it was found that the evidence of PW2 also can be relied on to some extent. Considering the subsequent conduct of the petitioner herein, it can be seen that the petitioner has not even raised his little finger and no attempt has been made to bring the wife, the first respondent herein, who according to him has deserted him for months together. Instead of that, he married another lady and is now living with that newly wedded wife and has also got a child in that wedlock. Considering the conduct of the petitioner and also the testimonies of PWs 1 to 4 together and also the evidence tendered by RWs 1 and 2, the learned Magistrate and also the learned Sessions Judge came to the conclusion that the first respondent herein as the petitioner's divorced wife, against whom proper Talaq was pronounced by the petitioner herein, was found entitled to get an amount of Rs.30,000/- CRL.M.C.No.3315/03 -6- as Matah and a total amount of Rs.1,500/- as maintenance during idath period at the rate of Rs.500/- per month. The decision relied on by learned counsel for the petitioner reported in Ummer Farooque v. Naseema (2005(4)KLT 565) is not applicable to the facts of this case and that decision was held in a case where maintenance under Section 125 was claimed by a wife. Absolutely, nothing has been shown to exist for this Court to invoke the powers under Section 482 of Cr.P.C. to interfere with the concurrent finding of the courts below. 8. Considering the facts and circumstances in this case, I find that there is no illegality or irregularity in the concurrent finding of both the courts and interference with the impugned order by invoking the powers under Section 482 of Cr.P.C. at the instance of the petitioner is totally unnecessary. In the result, this Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn