IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 4TH JANUARY 2007 / 14TH PAUSHA 1928 Crl.Rev.Pet.No. 3282 of 2004() ------------------------------ MC.1/1998 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER - PETITIONER: ----------------------------- SHYLA,ASEEF MANZIL, NETHAJI ROAD,POOJAPPURAM,TRIVANDRUM. BY ADV. SRI.J.HARIKUMAR SRI.SUMAN CHAKRAVARTHY RESPONDENT - RESPONDENT: ------------------------ SHAJIR,MUKKUKADA ROAD HOUSE, MARUTHIKUNNU,NAVAIKULAM. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/01/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO. 3282 OF 2004 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of January, 2007 O R D E R ------------------ When the matter came up for consideration, counsel on both sides submitted that Criminal Revision Petition itself can be disposed. Hence Criminal Revision Petition itself is heard and disposed of as agreed to by counsel on both sides. 2. Criminal Revision Petition is filed by the petitioner in M.C. No.1 of 1998 pending before the Additional Chief Judicial Magistrate, Thiruvananthapuram challenging the order passed by the learned Munsiff dismissing the complaint filed by her for default. Petitioner filed the compliant under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 against her husband claiming fair and reasonable provision and maintenance. Complaint was filed as early as in 1998. Case was posted on 21.7.2004. On that day she was absent. Learned Magistrate took the view that complainant was absent contrary to a direction issued to her to be present on that day. It was also recorded that her counsel was absent. Hence petition was CRL. R.P. NO. 3282 OF 2004 -: 2 :- dismissed for default. 3. Learned counsel, Shri Suman Chakravarthy, appearing for revision petitioner, has strenuously argued before me that case was filed as early as in 1998. Petitioner was present on almost all posting dates. It is submitted that on the particular day she was unable to attend the court for the reasons beyond her control. It is further submitted that it was a case in which petitioner was examined and cross examined as early as on 2.1.2002 and case was adjourned only because of the request of the respondent-husband. Court below dismissed the complaint under Section 203 Cr.P.C. as if there was no failure on the part of the petitioner to take steps for prosecuting the case. Certified copy of the deposition made available by counsel for petitioner shows that petitioner was examined on 22.6.2001. She was cross examined elaborately. Again she was recalled and further examined on 2.1.2002. 4. Since petitioner has already adduced evidence, learned Magistrate ought to have considered whether there was sufficient materials to allow the prayer claiming fair and reasonable provision and maintenance and disposed of the CRL. R.P. NO. 3282 OF 2004 -: 3 :- matter on its merits. Dismissal of the complaint for default after recording evidence is illegal and liable to be interfered with. In the result, this Criminal Revision Petition is allowed. Order passed by the Additional Chief Judicial Magistrate on 21.7.2004 dismissing M.C. No.1 of 1998 is hereby set aside. Learned Magistrate is directed to take back M.C. No.1 of 1998 to file and dispose of the same afresh on merits in accordance with law after affording a reasonable opportunity to both sides to adduce evidence. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ================================ CRL. R.P. NO. ================================ O R D E R ------------------------------------------------------- 4TH JANUARY, 2007