IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 Crl.Rev.Pet.No. 3941 of 2009() ------------------------------ CRA.129/2009 of SESSIONS COURT, WAYANAD, KALPETTA MC.20/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, SULTHANBATHERY .................... REVN. PETITIONERS: APPELLANT ------------------------------ FIROZ KHAN, AGED 29 YEARS, S/O. MOHAMMEDALI, RESIDING AT KANDILADI HOUSE, IRULAM, MANALVAYAL, P.O. SUTHANBATHERY, BATHERY TALUK. BY ADV. SRI.A.V.JAMES SRI.P.DALBI EMMANUEL RESPONDENT(S): RESPONDENT ------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SABIRA, AGED 23 YEARS, D/O. MOHAMMED, RESIDING AT THAMMANSSERY HOUSE, PAKERY.P.O, THAZHEYANGAI, SULTHAN BATHERY TALUK. ADV. SMT.CELINE JOSEPH FOR R2 R1 BY P.P. SRI VENUGOAPL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 3941 of 2009 ---------------------------------------- Dated the 16th August, 2009 ORDER This Crl.R.P. is preferred challenging the order dated 21.10. 2009 in Crl.A.No.129/2009 of the court of Sessions Judge, Wayanad, Kalpetta and also challenging the order dated 30.11.2007 in M.C.No.20/2007 of the court of Judicial First Class Magistrate-II, Sulthan Bathery. 2. The revision petitioner herein is the former husband of the 2nd respondent herein. According to the revision petitioner, the marital bondage between the revision petitioner and the 2nd respondent herein put to an end by pronouncing Talaq by the revision petitioner. At the time of divorce, the revision petitioner had promised to return 8 ½ sovereigns of gold ornaments and Rs.35,000/- which belonging to the 2nd respondent herein. Such decision was arrived at as per the mediation of the members of the Mahal committees of the revision petitioner as well as the 2nd respondent. As there was failure on the part of the revision petitioner in paying the agreed gold ornaments and cash, the CRL.R.P.3941/09 -:2:- divorced wife filed M.C.No.20/2007 in the court of Judicial First Class Magistrate-II, Sulthan Bathery, under sections 19 (8) and 20(1)(c) of the Prevention of Women from Domestic Violence Act with a prayer to get back the above gold ornaments and cash, but the revision petitioner did not appear before the trial court even though he received summons. During the trial of the above case, the 2nd respondent herein who was the petitioner in the M.C. was examined as PW1. From the impugned order it appears that the decision was arrived at the instance of the members of the Mahal committees and though the said decision was produced, not marked. M.C.20/2007 was allowed by the learned Magistrate directing the revision petitioner herein who is the respondent therein to give back 8 ½ sovereigns of gold ornaments belonging to the 2nd respondent herein and also a sum of Rs.35,000/- which belonging to her. 3. Against the above order, the revision petitioner herein had preferred a belated appeal. The lower appellate court allowed the petition to condone the delay by imposing a CRL.R.P.3941/09 -:3:- cost of Rs.500/- and thus the delay of 568 days was condoned. Thereafter, the lower appellate court considered the appeal on merit and by a well considered order, dismissed the appeal with cost of the respondent therein. Thus it can be seen that though the marriage between the revision petitioner and the 2nd respondent was solemnized on 29.5.2005 as per the Islamic rites and ceremony and though they had resided together for a period of six months, the revision petitioner herein pronounced Talaq on 20.12.2005 and as per the Mahal committee held on 20.12.2005, in which both the parties were participated, entered into an agreement and accordingly the revision petitioner had agreed to return 8 ½ sovereigns of gold ornaments and cash of Rs.35,000/- to the 2nd respondent herein which was given at the time of marriage. On the basis of the above factual finding, the lower appellate court dismissed the appeal. 4. The learned counsel for the revision petitioner submitted that the gold ornaments and cash as agreed by him were given to the 2nd respondent. Except the bare CRL.R.P.3941/09 -:4:- submission of the learned counsel for the revision petitioner, there is no material or evidence to substantiate the above submission. In fact, the revision petitioner has got ample opportunity to substantiate his defence and though he had received the summons, he did not care to attend the proceedings in the trial court and therefore it cannot be said that he was not aware of it. Even after the disposal of the matter by the trial court, he did not challenge the same in the appellate court in time. However, though there was delay of 568 days in filing the appeal, the lower appellate court condoned the delay and heard the matter on merit and found that the order of the trial court is correct and legal and further found that the revision petitioner has miserably failed to comply with the terms of the settlement arrived through mediation at the instance of the Mahal committee. So far, there is no dispute regarding the gold ornaments and the cash received by the revision petitioner connected with the marriage between himself and the 2nd respondent and also his undertaking to return those ornaments and cash. The only submission now made before CRL.R.P.3941/09 -:5:- this Court is to the effect that the gold ornaments and cash were given back to the 2nd respondent/divorced wife. The revision petitioner has no such case before the lower appellate court. It is also relevant to note that no plea was taken before the trial court for an opportunity so as to establish his present plea about the return of the gold ornaments and cash. Hence, such a plea is taken only to protract the proceedings. Therefore, the submission of the learned counsel for the revision petitioner for remanding back the matter for fresh consideration or for enabling the revision petitioner to adduce evidence cannot be entertained at this belated stage and that too while considering the revision petition. In the result, there is no merit in this Crl.R.P and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.3941/09 -:6:-