IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 Crl.MC.No. 1078 of 2006() ------------------------- CRRP.202/2004 of II ADDL. SESSIONS COURT, PALAKKAD MC.38/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... PETITIONER: REVISION PETITIONER/COUNTER PETITIONER: ------------------------------------------------------------------ HAKKIM, S/O. MEERAN, KADAVALAVU STREET, THATTAMANGALAM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.T.K.CHINNAN RESPONDENT(S): RESPONDENTS/PETITIONERS: ---------------------------------------------------- 1. NILAVARNEESA, W/O. HAKKIM, PLACHIMADA, KANNIMARI, MOOLATHARA VILLAGE, PALAKKAD DISTRICT. 2. NIFILA (MINOR), D/O. NILAVARNEESA, REPRESENTED BY HER MOTHER AND GUARDIAN, NILAVARNEESA, W/O. HAKKIM, PLACHIMADA, KANNIMARI, MOOLATHARA, PALAKKAD DIST. SRI.P.VIJAYA BHANU FOR R1 & R2 SMT.P.MAYA FOR R1 & R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.1690/06 IN CRL.M.C.NO.1078/06 //DISMISSED// 13.1.09 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.1078 OF 2006 ----------------------------------------------------- DATED THIS THE 13th DAY OF JANUARY, 2009 O R D E R Petitioner is the counter petitioner in M.C.No.38/02 on the file of Judicial First Class Magistrate's Court-III, Palakkad. Respondents 1 and 2 are the petitioners in that case. This petition is filed by the petitioner under Section 482 of Cr.P.C. with the prayer to quash Annexures II and III. Annexure II is the copy of the order dated 19.11.2004 in M.C.No.38/02 passed by the J.F.C.M.-III, Palakkad. Annexure III is the order in Crl.R.P.No.202/04 dated 27.1.2006 passed by the learned Sessions Judge, Palakkad. 2. The statement of facts as alleged in this petition are as follows: The first respondent is the wife of the petitioner herein. Second respondent is their daughter. Originally, a petition was filed by the wife under Section 125 of Cr.P.C. for getting maintenance to her and their daughter, from the petitioner herein and as per a compromise decree in M.C.No.39/97, Rs.400/- was allowed to the CRL.M.C.No.1078/06 -2- first respondent and Rs.200/- to the second respondent as their maintenance per month. Subsequently, the first respondent herein filed a petition under Section 127 of Cr.P.C. for enhancement of maintenance amount and as per order dated 21.12.2002 in M.C.No.38/2002, it was ordered by the learned Magistrate to pay maintenance at the rate of Rs.750/- per month each to the respondents. The petitioner herein challenged that order before the Sessions Court, Palakkad and the learned Sessions Judge, as per order dated 21.8.2004 in Crl.R.P.No.146/03 set aside the order in M.C.No.38/02 and remitted the case to the Court of J.F.C.M.-III, Palakkad. The learned Sessions Judge also directed the petitioner to pay Rs.600/- per month as interim maintenance to the respondents. Certified copy of that order is produced as Annexure I. Subsequent to the remand, further evidence has been adduced by the parties and as per order dated 19.11.2004, the learned Magistrate ordered to pay maintenance at the rate of Rs.700/- and Rs.600/- per month to respondents 1 and 2 respectively. Copy of that order is produced as Annexure II. The petitioner challenged that order before the Sessions Court, Palakkad and as per order dated 27.1.2006 in Crl.R.P.202/04, CRL.M.C.No.1078/06 -3- the learned Sessions Judge has dismissed the revision petition confirming the order of the learned Magistrate. Certified copy of that order is produced as Annexure III. Accordingly, the present petition is filed with the prayer to quash Annexures II and III. 3. Heard the learned counsel appearing for the petitioner and the respondents. 4. It is submitted by the learned counsel appearing for the petitioner that the reasoning of the learned Sessions Judge in Annexure III is not based on the evidence in the case. Further, the petitioner herein has no means to pay the enhanced maintenance at the rate of Rs.700/- and Rs.600/- per month to respondents 1 and 2 respectively, as ordered by the learned Magistrate which is confirmed by the learned Sessions Judge. The finding of the learned Sessions Judge on the basis of the counter statement filed by the respondents herein and the evidence in the earlier M.C.No.39/97 which was closed on compromise is against law and there are no change of circumstance to enhance the quantum of maintenance already ordered in M.C.No.39/97. 5. The prayer in this petition is opposed by the learned counsel CRL.M.C.No.1078/06 -4- appearing for respondents. It is submitted that the quantum of maintenance as ordered by the learned Magistrate at the rate of Rs.700/- and Rs.600/- per month to respondents 1 and 2 respectively is reasonable and the petitioner herein has got sufficient means to pay that amount. That amount was ordered by the learned Magistrate on the basis of the evidence adduced by the parties and considering the means and responsibility of the petitioner who is the husband of the first respondent and also the father of the minor second respondent. Thus, according to the learned counsel, that order passed by the learned Magistrate was confirmed by the Sessions Court in the revision. Hence, this Crl.M.C. is devoid of merits and is to be dismissed. 6. The relationship between the parties in this petition is not disputed. Originally, the first respondent filed M.C.No.39/97 before the Court of J.F.C.M.-III, Palakkad claiming maintenance to her and to the daughter from the petitioner herein, which was allowed fixing the monthly maintenance at the rate of Rs.400/- and Rs.200/- respectively on the basis of a compromise decree. Subsequently, the petition filed under Section 127 of Cr.P.C. by the first respondent herein for CRL.M.C.No.1078/06 -5- enhanced maintenance, was also allowed by the learned Magistrate as per order dated 21.12.2002 in M.C.No.38/2002, directing the petitioner herein to pay enhanced monthly maintenance to the respondents at the rate of Rs.750/- each. That order was challenged by the petitioner before the Sessions Court and as per order dated 21.8.2004 in Crl.R.P.No.146/2003, the learned Sessions Judge set aside the order in M.C.No.38/02 and remitted the case for fresh disposal. Thereafter the learned Magistrate as per order dated 19.11.2004 in M.C.No.38/02 directed the petitioner to pay Rs.700/- to the first respondent and Rs.600/- to the 2nd respondent as monthly maintenance by enhancing the maintenance awarded to them in M.C.No.39/97 by allowing the petition filed by the first respondent under Section 127 of Cr.P.C. Copy of that order is produced as Annexure II, which would reveal that the said order has been passed by the learned Magistrate after considering the evidence adduced by the parties, both oral and documentary. The first respondent herein was examined as PW1 and Exhibits P1 and P2 were marked. The petitioner herein was examined as CPW1 and Exhibit D1 sale deed was also marked. The first respondent herein has given evidence before CRL.M.C.No.1078/06 -6- that court that the petitioner has got sufficient means to pay the enhanced rate of maintenance demanded by her at the rate of Rs.1,250/- and the earlier order in M.C.No.39/97 was passed on 28.11.1998 as per a joint petition filed by the parties, whereby the petitioner was directed to pay Rs.400/- to the first respondent and Rs.200/- to the second respondent as monthly maintenance from 1.6.1998 onwards. Due to insufficiency of that amount for the maintenance of the respondents herein, they filed a petition under Section 127 of Cr.P.C. with the prayer to enhance the amount, which was allowed by the learned Magistrate after considering the evidence adduced by the parties and ordered to pay monthly maintenance at the rate of Rs.700/- and Rs.600/- to respondents 1 and 2 respectively. That order has been confirmed by the learned Sessions Judge in the revision preferred by the petitioner herein. Thus, the petitioner is challenging the concurrent directions issued by the courts below calling upon him to pay monthly maintenance at the rate of Rs.700/- and Rs.600/- per month to the respondents herein. 7. The contention raised by the petitioner that he has to maintain his parents and also his brother who is suffering from cancer, CRL.M.C.No.1078/06 -7- etc. has been considered by the learned Magistrate. The fact of execution of Exhibit D1 sale deed, whereby the petitioner has obtained an amount of Rs.50,000/- as the sale consideration was also taken note of as revealed from the order. The learned Magistrate has also found that the petitioner has got the responsibility of maintaining his wife and the minor daughter. The first respondent has no occupation and no income to maintain herself and her daughter was considered by the courts below. The second respondent is studying in an English Medium School and the evidence adduced by the first respondent that the child used to go to the school in an autorickshaw and that to meet educational expenses of the child, the quantum of maintenance ordered earlier in M.C.No.39/97 has to be enhanced. To meet the cost of living of respondents 1 and 2, after considering the income of the parties, the concurrent finding of the courts below that both respondents are entitled to get the maintenance amount at the rate of Rs.700/- and Rs.600/- per month respectively is reasonable and based on the evidence on record. Therefore, the contentions raised by the petitioner herein that respondents are not entitled to get the amount as ordered by the courts below cannot be accepted, which is CRL.M.C.No.1078/06 -8- fair and reasonable and after considering the evidence on record. 8. Sitting as a court exercising inherent jurisdiction under Section 482 of Cr.P.C., I find no reason to doubt the wisdom or correctness of the said concurrent conclusion of the facts of the courts below. It is pertinent to note in this context that a second revision is not permissible in view of the specific bar under Section 397(3) of Cr.P.C. I find no failure of justice results from the impugned orders. In the result, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn