IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 Crl.MC.No. 534 of 2009() ------------------------ M.C.NO.52/2006 OF J.F.C.M -I MANJERI PETITIONER(S): --------------- KOTTOPADAN MOHAMMED SHAFFI, 38 YEARS S/O.HAMZA HAJI, REP. BY FATHER HAMZA HAJI, KOTTOPADAN HOUSE, PO.PATHRIKKODE, MELATHUR, MALAPPURAM. BY ADV. SRI.P.VIJAYA BHANU RESPONDENT(S): --------------- 1. HASEENA BEEGAM, D/O.KUNNUMMAL , MOHAMMED,KARUVARAKUNDU, CHERAMU, KERALA ESTATE.PO MALAPPURAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.534 of 2009 ------------------------------------- Dated this the 4th day of February, 2009 ORDER The petitioner has suffered an order under Section 3 of the Muslim Women's (Protection of Rights on Divorce) Act obliging him to pay a total amount of Rs.2,04,500/- as fair and reasonable provision of maintenance and an amount of Rs.1,69,300/- as the value of 27 sovereigns of gold ornaments which belong to the claimant and which was allegedly retained by the husband with him. 2. Marriage and divorce are all admitted. There is no contention that the wife has married again. They remained in matrimony for about 9 years. No child was born in this wedlock. The claimant/wife was aged about 30 years when the divorce took place. The divorce was obtained on the basis of an application filed by the claimant/wife before the court. The petitioner is employed abroad and continues such employment. The court below came to the conclusion that an amount of Rs.4,500/- (at the rate of Rs.1,500/- per mensem for three months) as maintenance during the period of iddat, an amount of Crl.M.C. No.534 of 2009 2 Rs.2,00,000/- as fair and reasonable provision for the future and Rs.1,69,300/- being the value of 27 sovereigns of gold ornaments can safely be directed to be paid. These directions were upheld by the Sessions Court in the impugned order passed. 3. The petitioner claims to be aggrieved by the impugned concurrent directions. What is the grievance? So far as the 1st and 2nd directions are concerned, the contention is only that the quantum fixed is not justified. So far as the third head of the claim is concerned, it is contended that the courts below have erred perversely in coming to the conclusion of fact that 27 sovereigns of gold ornaments were illegally retained by the husband with him at the time of divorce. I must alertly remind myself of the nature, quality and contours of the jurisdiction of this court exercising the extraordinary inherent jurisdiction under Section 482 Cr.P.C. The first court has entered findings of fact and exercised its discretion in quantifying the amounts payable. A court of revision has already considered the matter and has come to the conclusion that the findings of fact and the discretions exercised by the first court do not warrant interference. A second revision is barred under law in the light of the specific stipulation of Section 389(3) Cr.P.C. Crl.M.C. No.534 of 2009 3 4. As a second revision is not maintainable, the petitioner has conveniently affixed the label of Section 482 Cr.P.C on his petition and has gained entry into this court. The extraordinary inherent jurisdiction is to be invoked only on proof of satisfactory, compelling and exceptional reasons. Has justice failed? Has there been miscarriage of justice? These are the crucial questions which this court will ask itself before choosing to invoke the extraordinary inherent jurisdiction at this third tier of litigation. Such jurisdiction is certainly not to be invoked as a matter of course. In the light of the bar of a second revision, this court must carefully evaluate the circumstances to decide whether in this case such extraordinary inherent jurisdiction can or ought to be invoked. I shall take up the third claim first. Rs.1,69,300/- is awarded as the cost of 27 sovereigns of gold ornaments allegedly retained by the husband. The contention is that there has been no such retention whatsoever. On this aspect, detailed arguments were advanced. Admittedly, in Ext.P2 counter statement filed by the petitioner in an earlier proceedings, there is unambiguous admission that some gold ornaments were returned to the claimant/wife and such return was acknowledged by the father of the claimant/wife in a written Crl.M.C. No.534 of 2009 4 document. The wife in evidence asserted that in the said written document, there is an admission about the retention of 27 sovereigns of gold ornaments by the husband which he is liable to return. In the light of such specific assertions on the part of the wife, it was incumbent on the husband to produce such written document evidencing return of some of the gold ornaments handed over to the wife by her husband through her father. But for obscure reasons without any explanation such written document has not been produced. RW1 who was examined on behalf of the petitioner surprisingly chose to take a stand that there was no such written document at all. This runs counter to the specific assertions in para.4 of Ext.P2 which has been read to me in detail. The learned Magistrate drew adverse inference against the petitioner and it was thus the finding of fact was entered that 27 sovereigns of gold ornaments remain to be returned by the husband to the wife. That finding, to say the least, is absolutely fair, reasonable and just and does not call for invocation of extraordinary inherent jurisdiction under Section 482 Cr.P.C 5. Coming to the quantum of maintenance during the period of iddat and the fair and reasonable provisions for the Crl.M.C. No.534 of 2009 5 future, I note that the amounts fixed are absolutely fair, reasonable and just. Taking note of the totality of circumstances, which are relevant for the purpose of quantifying the amounts payable as explained in various decisions culminating in Aboobacker v. Rahiyanath [2008(3) KLT 482]; considering the length of the period of matrimony, the fact that no children are born in the matrimony, that the wife was compelled to seek dissolution through court which was allowed by the court and the fact that the petitioner enjoys a sound financial position having secured employment abroad for a long period of time, I am satisfied that the quantum fixed does not, at any rate, warrant interference. 6. This Crl.M.C is, in these circumstances, dismissed. (R.BASANT, JUDGE) rtr/-