IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 Crl.MC.No. 3166 of 2007() ------------------------- CRRP.13/2004 of SESSIONS COURT, KASARAGOD MC.7/2002 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... PETITIONER: REVN. PETITIONER ------------------------------------------------ BAVA @ BAPPUNHI, S/O. LATE IBRAHIM, R/AT UKKINADKA, ENMAKAJE VILLAGE, P.O.UKKINADKA, KASARAGOD TALUK, (REP. BY HIS MOTHER ASSIAMMA, AGED 59 YRS, W/O. LATE IBRAYHIM, R/AT UKKINADKA, ENMAKAJE VILLAGE, P.O.UKKINADKA, KASARAGOD TALUK). BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MARIYAMBI, D/O. ABDULLA, RESIDING AT KADAMANE, PALLATHADKA P.O., BADIADKA VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.3166 of 2007 = = = = = = = = = = = = = = Dated this the 7th day of January, 2008 ORDER In this petition filed under Section 482 Cr.P.C, the petitioner challenges the order passed concurrently by the courts below awarding maintenance to the 2nd respondent at the rate of Rs.350 per month under Section 125 Cr.P.C. 2. The second respondent herein filed M.C.No.7 of 2002 before the J.F.C.M, Kasaragod raising, inter alia, the following contentions: The petitioner is the legally wedded wife of the respondent and their marriage took place on 11.04.01 in accordance with the rites and ceremonies prevailing in the Muslim community. After the marriage the petitioner and the respondent lived together as husband and wife in the matrimonial home. But the behaviour of the respondent and the inmates of his house was not satisfactory. They tortured the petitioner for getting dowry to the tune of Rs.50,000/- and gold ornaments worth 50 soverigns. The petitioner had no means to meet the illegal demand made by her husband and his relatives. The petitioner Crl.M.C.No. 3166/07 2 was subjected to cruelty . She was denied food and clothing. The respondent had misappropriated the cash and gold ornaments given to the petitioner at the time of her marriage. The respondent has a monthly income of Rs.15,000/- of which Rs.18,000/- per annum is from landed properties. She prays for a monthly maintenance of Rs.1,500/-. 3. The application for maintenance was resisted by the petitioner herein contenting, inter alia, as follows: He is a mentally retarded person. As per the order passed in C.M.P.No.3880 of 2002 he was allowed to be represented through his mother subject to medical evaluation of his mental retardation. There has been no marriage between the petitioner and the respondent as alleged on 11.04.01 or any other day. the alleged marriage as well as the payment of Rs.50,000/-and 50 soverign of gold ornaments are false. The allegation of misappropriation of the amounts and ornaments as alleged by the respondent is also false. The petitioner is an expert tailor, she gets Rs.70/- per day. The alleged income stated in the application was false. In fact, he is unable to maintain himself and he is not having any income and he is maintained by his Crl.M.C.No. 3166/07 3 mother. 4. On the side of the applicant, four witnesses were examined as PW1 to PW4 and three documents were marked as Exhibits P1 to P3. On the side of the petitioner herein, his mother was examined as CPW1. 5. On the side of the petitioner herein a certificate dated 9.10.02 issued by a Medical Board to the effect that the patient therein aged 27 years was assessed to have a mental maturity of 8 years and I.Q at 30 and that primary functions like attention, concentration and orientation are impaired, was sought to be admitted in evidence. The said attempt was opposed by the applicant contenting, inter alia, that it did not pertain to the petitioner herein. In spite of that, no attempt was made to produce the petitioner herein before the trial court which was deprived of an opportunity to see and examine the person. No attempt was made to establish as to whether identification marks mentioned in the certificate of the Medical Board, relied on by the petitioner herein pertains to him. 6. With regard to the marriage besides Ext.P1 marriage certificate, PWs1 to 4 gave evidence in respect of the marriage. Crl.M.C.No. 3166/07 4 Even though no evidence was adduced in support of the income of the petitioner herein, on the view that he is an able bodied person said to be doing the job of fish vendor doing door-to-door business, the trial court fixed his monthly income at the rate of Rs.1000/-. It was on these findings that the trial court fixed maintenance allowance as Rs.350/- per month. 7. The order passed by the trial court has been confirmed by the Sessions Court in revision filed by the petitioner herein. 8. The learned counsel appearing for the petitioner reiterated the contentions of the petitioner that he had prayed for an opportunity to substantiate his contentions by getting the medical certificate marked after examining one of the doctors of the medical board. He also relied on Annexure A8 deposition of the 2nd respondent's brother in a proceeding under Section 498A IPC against the petitioner herein. In his deposition, the suggestions put to him that the petitioner herein has not attained sufficient mental development and he is unable to take a decision by himself and taking advantage of his mental incapacity people used to make him a laughing stock etc. were admitted 9. The findings recorded by the court below are on the Crl.M.C.No. 3166/07 5 basis of a careful evaluation of the oral and documentary evidence in the case. The Medical certificate was not relied on for the reason that the identity of the patient who was examined by the Medical Board was not even faintly attempted to be related to the petitioner herein. None of the doctors who allegedly examined the petitioner was cited or examined as a witness. The alleged admission made by the brother of the 2nd respondent herein in a different proceedings cannot be used against the 2nd respondent. Except the interested testimony of the mother of the petitioner herein, no other independent witness was examined to counter the testimony of respondents 1 to 4 regarding the marriage and the avocation of the petitioner. The findings recorded by the court below are on the basis of an appreciation of the evidence. This Court exercising extraordinary inherent jurisdiction under Section 482 Cr.P.C will be loath to interfere with the said findings. This Crl.M.C. is therefore dismissed. V. RAMKUMAR, JUDGE sj