IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 Crl.MC.No. 3647 of 2010() ------------------------- CRRP.23/2009 of SESSIONS COURT, TRIVANDRUM MC.10/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... PETITIONER(S): ----------------------- SHAJAHAN, S/O.MUHAMMED KUNJU SAJIDU MANZIL, VELAMKONAM, KUDAVOOR VILLAGE BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): ------------------------ 1. SAJINATH, D/O.ABIDA BEEVI SAJITHA MANZIL, VELAMKONAM, KUDAVOOR DESOM NAVAIKULAM VILLAGE - PIN 695 603. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN FOR R2 SRI.NAGARAJ NARAYANAN FOR R2 SRI.SAIJO HASSAN FOR R1 SRI.PRATHAP PILLAI FOR R1 SRI.I.J.AUGUSTINE FOR R1 SRI.BENOJ C AUGUSTIN FOR R1 SRI.RAFEEK. V.K. FOR R1 SRI.SEBIN THOMAS FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ds Crl.MC.No. 3647 of 2010() APPENDIX PETITIONER'S ANNEXURES: A1: COPY OF THE ORDER DATED 16/01/2009 IN M.C. NO.10/2007 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, VARKALA. A2: COPY OF THE ORDER DATED 15/06/2010 IN CRIMINAL R.P. NO. 23/09 OF THE COURT OF THE SESSIONS JUDGE, THIRUVANANTHAPURAM. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ PA TO JUDGE N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. No: 3647 OF 2010 (B) ------------------------------------------ Dated this the 15th day of December, 2011 O R D E R The former husband of the 1st respondent (hereinafter referred to as respondent) is the petitioner. He filed an application before the learned Magistrate under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, claiming maintenance of the Iddat period, reasonable and fair provision, value of gold ornaments and also for return of the amount which had been paid to the petitioner as 'acharam' (gift/pocket money). Admittedly, the respondent was divorced by the petitioner. The petitioner denied the liability to pay the amount claimed in the petition. The respondent and two witnesses were examined before the learned Magistrate as PWs 1 to 3 and Exhibits P1 (the Thalak chit) and P2 (letter) were marked on her side. The Counter petitioner and two other witnesses were examined on his side as CPWs 1 to 3. Exhibits D1 and D2 were also marked. Crl. M.C. No: 3647 OF 2010 (B) -2- 2. The learned Magistrate, after a thorough examination of the entire evidence allowed the petition directing the petitioner to pay Rs.1,00,000/- to the respondent being the amount received by the petitioner as 'acharam'. He was also directed to return 50 sovereigns of gold ornaments or its value to the respondent. Further, he was directed to pay Rs.3,00,000/- as the reasonable and fair provision. Besides Rs.9,000/- was directed to be paid by the petitioner to the respondent as maintenance for the Iddat period. That order was challenged by him before the learned Sessions Judge. The learned Sessions Judge modified the order so far it relates to reasonable and fair provision, reducing the same to Rs.2,16,000/- but confirmed the order of the learned Magistrate in all other respects. 3. This petition under section 482 has been filed by the former husband contending that the quantification of the amounts done by the Courts below is incorrect. The learned Crl. M.C. No: 3647 OF 2010 (B) -3- counsel for the respondent the divorced wife, would submit that no question of law is involved in this case nor are the findings of the two courts below grossly erroneous or perverse so as to invoke the jurisdiction of this Court under section 482 Cr.P.C. It is not disputed that both courts have discussed in detail each and every aspect. The reasons given by the Courts below cannot be said to be wholly erroneous or perverse. 4. The learned counsel for the petitioner would submit that no document has been produced by the divorced wife to show what were the gold ornaments given to her at the time of marriage which were alleged to have been misappropriated or taken away by the petitioner. It is also contended that except stating that a sum of Rs.1,00,000/- was given by the parents of the respondents to the petitioner at the time of marriage, there is no convincing evidence. This contention has been stiffly Crl. M.C. No: 3647 OF 2010 (B) -4- resisted by the learned counsel for the respondent/divorced wife pointing out that there is evidence to show that the brothers and near relatives of the divorced wife were employed in Gulf country during and prior to the marriage of the respondent. In fact, the evidence given to that effect by PW2 remains unchallenged. 5. It was also not disputed that 40 cents of landed property was given to the respondent by her mother immediately before her marriage. That also would show that the respondent and her family members were affluent or capable of raising funds to purchase gold ornaments for the purpose of marriage. Considering the circumstances mentioned above, the case of the former husband that only 7 sovereigns of gold ornaments were given at the time of marriage was rightly not accepted by the Court below. 6. It is argued on behalf of the petitioner that if the petitioner had any dishonest intention, certainly the said Crl. M.C. No: 3647 OF 2010 (B) -5- property, measuring 40 cents in the name of the divorced wife, could have been some how or other got transferred by the petitioner. It is not necessary to make such surmises. The question whether it was improbable or unreasonable to assume that the gold ornaments as spoken to by the wife had been given to her at the time of marriage and whether it was also reasonable to hold that a sum of Rs.1,00,000/- was given by her parents to the petitioner at the time of marriage. It was observed by the Courts below that usually the marriage ceremonies among Muslims used to be had in camera and as such there was no possibility of getting much evidence to prove the payment of 'acharam' as well as delivery of gold ornaments. It is not uncommon that at the time of marriage among Muslims such 'acharam' used to be paid to the bridegroom. The fact that the respondent's father was employed in Gulf during and prior to the date of marriage and her near relatives were also working abroad Crl. M.C. No: 3647 OF 2010 (B) -6- were duly taken note by the Courts below to accept the evidence given by Pws 1 and 2. That evidence was supported, to a certain extent, by PW 3 as well. 7. Therefore I find no reason to upset the findings entered by the two Courts below. Since it is only a petition under section 482 of Cr.P.C., it is not necessary to narrate the evidence given by the parties. 8. The other ground that has been projected and pointed out by the learned counsel for the petitioner is that the amounts directed to be paid towards reasonable and fair provision is excessive. Though the learned Magistrate directed Rs.3,00,000/- to be paid on that count, the learned Sessions Judge, after re-appreciation of the sum reduced the sum to Rs.2,16,000/-. The petitioner was and is working abroad. The contention that he is getting only a meagre income did not inspire the confidence of both the Courts below. Crl. M.C. No: 3647 OF 2010 (B) -7- 9. Exhibit D2, letter was rightly found to be un- acceptable as the competency of the person to issue such certificate was doubtful. The contention that he was getting only Rs.5,500/- per month was also rightly turned down by the Courts below. Even, by doing coolie work in India can earn more than Rs.5,500/- per month. Further, CPW 1 had no case that he is unable to work. 10. Considering all the aspects, the learned Sessions Judge found that the divorced wife would require atleast Rs.3,000/- per month for her maintenance. Calculating at that rate, the maintenance for the Iddat period of three months was assessed at Rs.9,000/-. The divorced wife was aged about 34 years and she was having four children born through the petitioner. As such it was observed by the court below that possibility of her re-marriage is remote and that she has to look after herself and her minor children. The learned Sessions Judge calculated the lumpsum Crl. M.C. No: 3647 OF 2010 (B) -8- amount as the amount payable for six years at the rate of Rs.3000/- per month. The amount so calculated is found to be just and reasonable. It requires no interference. 11. In the result I find no reason to invoke the jurisdiction under section 482 of Cr.P.C., to upset the order passed by the learned Sessions Judge. It is hence dismissed. N.K. BALAKRISHNAN, JUDGE jjj