IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 Crl.Rev.Pet.No. 3378 of 2007() ------------------------------ MC.10/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... REVN. PETITIONER(S): COUNTER PETITIONER: ---------------------------------------- NAVAS, S/O. MUHAMMED HANEEFA, DARUSSALAM, MANJAMALA, MANGALAPURAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,SRI.SHAHUL HAMEED, SHA NIVAS, VAVARA AMBALAM, ANDOORKONAM, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): PETITIONER: -------------------------- 1. ZEENATH, D/O. KHADEEJA BEEVI, SIRAJ MANZIL, SANTHI NAGAR, KOONAMVENGA, PULLAMPARA VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL HIGH COURT, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 SRI.THOMAS ABRAHAM FOR R1 SRI.DIPU.R FOR R1 SMT.MERCIAMMA MATHEW FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.3378 of 2007 -------------------------------------- Dated this the 26th day of June, 2009. ORDER This revision is in challenge of order dated 27.7.2007 of learned Judicial First Class Magistrate-II, Attingal in M.C.No.10 of 2006 under Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act (for short, “the Act”). As per the impugned order, respondent No.1/divorced wife has been awarded a total sum of Rs.5,53,000/- on various accounts. Petitioner, former husband is aggrieved in that he did not get an opportunity to contest the case by cross examining the respondent No.1. Learned counsel contends that Annexure-VIII, application was filed in the court below on 24.7.2007 to reopen the case to enable petitioner cross examine the respondent No.1 (PW1). That prayer did not find favour with learned magistrate. Learned counsel for respondent contended that Annexure-IX produced along with the revision petition would show that sufficient time was available to the petitioner to cross examine the respondent No.1 but that was not done. 2. It is seen from the copy of proceedings of the court below produced along with the revision petition that respondent No.1 was examined in the court below on 3.6.2006. Thereafter the case was being posted on several dates. But it is not clear for what purpose the case was posted on the respective dates mentioned therein. On three days there was no sitting for the Crl.R.P.No.3378/2007 2 court. On 9.4.2007 the case was adjourned to 4.7.2007 and on that day, case was posted to 15.7.2007. On 15.7.2007 the case was posted for orders on 25.7.2007. It is in the meantime that Annexure-VIII, application was preferred on 24.7.2007 to reopen the case and permit petitioner cross examine respondent No.1. That petition was not allowed. Following that, the impugned order was passed. 3. I do not forget that after examination of respondent No.1 as PW1 on 3.6.2007 there were ten postings before the case came up for orders on 25.7.2007. As stated above the purpose of those postings is not clear. But on a few posting dates it was stated that case was posted for hearing. Without waiting for the case being posted for evidence of respondent No.1, petitioner could have requested the court below to permit cross examination of respondent No.1. Fact remained that petitioner did not cross examine respondent No.1. Assuming that there was some laches on the part of petitioner, when an application for cross examination of respondent No.1 filed at least on 24.7.2007, some indulgence should have been shown to the petitioner if necessary on terms of cost. On the facts and circumstances stated by learned counsel I am inclined to give petitioner an opportunity to contest the case by cross examining respondent No.1 and if necessary adducing evidence on his side. At the same time I cannot forget respondent, the divorced wife who at the time of preferring the application was aged about 21 years. Petitioner is not disputing the fact of marriage or the divorce. He has no case that he discharged the liabilities under Section 3(1) of the Act. Failure of petitioner to Crl.R.P.No.3378/2007 3 cross examine respondent No.1 (PW1) is not due to her fault. Hence the request of the petitioner for opportunity to contest the case can be allowed only on terms. 4. It is not disputed that petitioner is working abroad. While admitting this revision this Court directed petitioner to deposit Rupees one lakh in the court below and that direction has been complied with. Considering the financial background of the parties and the circumstances from which they emerge I consider it appropriate to direct petitioner to deposit a further sum of Rupees two lakhs for payment to respondent No.1 as condition to reopen the case. It is made clear that the amount already in deposit as well as the sum of Rupees two lakhs which the petitioner is directed to be deposited, as and when deposited could be withdrawn by respondent No.1. The amount permitted to be withdrawn by respondent No.1 will be adjusted in the amount which the court below may ultimately award in favour of respondent No.1. In the circumstances stated above, order under challenge is set aside. Resultantly, this revision is allowed to the following extent: Order dated 24.7.2007 on Annexure-VIII, application and the order dated 27.7.2007 in M.C.No.10 of 2006 of the court of Judicial Magistrate of First Class-II, Attingal will stand set aside on condition that petitioner deposited in the court below for payment to respondent No.1 Rupees two lakhs within two months from this day. It is made clear that if the petitioner did not comply with the above direction this revision will stand dismissed in confirmation of the impugned orders. The amount already in deposit (Rupees one lakh) and in case Crl.R.P.No.3378/2007 4 petitioner deposited the said sum of Rupees two lakhs as per this order can be withdrawn by respondent No1. So far as the sum of Rupees one lakh in deposit is concerned, respondent No.1 can withdraw the same forthwith. Parties shall appear in the trial court on 28.8.2009. Learned Judicial First Class Magistrate is directed to expedite the trial and disposal of the case untrammelled by any observation contained herein in case, the case stands reopened as per this order. It is made clear that the amount ordered to be deposited by this Court is only a condition for re-opening the case and need not be taken as indicative of the amount payable to respondent No.1 in case she is found entitled to get any amount. Revision petition is allowed as above. Crl.M.A.No.9869 of 2007 will stand dismissed. THOMAS P.JOSEPH, Judge. cks