IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 Crl.MC.No. 788 of 2011() ------------------------ CRRP.27/2009 of ADDL.SESSIONS COURT-II, KOZHIKODE MC.5/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY .................... PETITIONER/REVISION PETITIONER/RESPONDENT --------------------------------------------- ABDUL HAMEED, SON OF MUHAMMED, RESIDING AT KAVILKUNNU HOUSE, KOTTARAKOTH, ENGAPUZHA AMSOM, MALAPPURAM DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENTS/RESPONDENTS/PETITIONER ------------------------------------- 1. MUNEERA, AGED 23 YEARS, DAUGHTER OF LATE ABU HAJI, KUNNUMMAL HOUSE, RAROTH AMSOM AND DESOM, KOZHIKODE TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: ADV SMT M K PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.788 of 2011 --------------------------------------- Dated this 14th day of March, 2011 ORDER Respondent, the former husband faced a demand for certain payments in M.C.No.5 of 2007 of the Court of Judicial First Class Magistrate-I, Thamarassery under Sec.3 of the Muslim Women Protection of Rights on Divorce Act, 1986 (for short, “the Act”). It is not disputed that petitioner married the respondent on 14.12.2003 and effected a divorce on 10.08.2006. Respondent claimed that of the 65 sovereigns of ornaments given to her, petitioner misappropriated 60 sovereigns. She also claimed that at the time of Nikah, her father gave her `.1,50,000/- as present and later a further sum of Rs.10,000/- which were entrusted to the petitioner but he misappropriated the same. She claimed that petitioner is a Contractor earning Rs.20,000/- per month and another `.10,000/- from his landed property. Respondent claimed `.6,000/- as maintenance for the period of Iddat, `.3,00,000/- towards reasonable and fair provision for future maintenance, `.4,20,000/- being the value of 60 sovereigns of gold ornaments and `.1,60,000/- the amount allegedly entrusted to the petitioner and misappropriated by him. Petitioner denied the allegations Crl.M.C.No.788 of 2011 -: 2 :- and contended that respondent had only 30 sovereigns of ornaments which is still with her. He claimed that he is working as a helper in building works earning Rs.150/- per day. With the meager income he has to maintain his family including his second wife who are dependent on him. Before the learned Magistrate respondent gave evidence as PW1 and examined her uncle as PW2. She also proved Exts.P1 to P3. Petitioner gave contra evidence as CPW1. Learned Magistrate found that her version that she was given 65 sovereigns and out of that, 60 sovereigns were misappropriated by the petitioner cannot be accepted even taking into account Ext.P2, series bills and accordingly rejected that claim. Learned Magistrate found from the evidence that petitioner and respondent belonged to middle class family and that petitioner is constructing a new building in a plot of land. Evidence of PWs.1 and 2 regarding entrustment of `.1,60,000/- to the petitioner on behalf of respondent was accepted. Petitioner was directed to pay that amount. Learned Magistrate also found that the claim for `.6,000 as expenses during the period of idaat is reasonable and allowed that claim. `.1,50,000/- was allowed towards reasonable and fair provision for future maintenance. Thus total amount awarded by the learned Magistrate is Crl.M.C.No.788 of 2011 -: 3 :- `.3,16,000/-. Petitioner challenged that order in revision. Learned Additional Sessions Judge, Kozhikode in Crl.R.P.No.27 of 2009 while confirming the finding entered by the learned Magistrate held that for the purpose of fixing reasonable and fair provision for future maintenance, monthly expenses can be fixed as `.2,000/- and accordingly fixed the amount payable at `.1,20,000/-. Thus, the total amount payable to the respondent was found to be `.2,86,000/-. That order is under challenge. Learned counsel for petitioner has contended that there is no reliable evidence to show that `.160,000/- was entrusted to the petitioner as claimed by the respondent. Evidence of PWs.1 and 2 in that regard cannot be reliable. It is also contended that at any rate learned Magistrate having found that the sum of `.1,50,000/- represented dowry which is prohibited under the provisions of Dowry Prohibition Act and could not have been recovered by way of a civil suit, should not have been allowed. It is further contended that so far as the amount awarded as Iddat and towards reasonable and fair provision of future maintenance is concerned there is no evidence to show that petitioner is capable of making such payment. Learned counsel placed reliance on the decision in Arun Garg Vs. State of Punjab and Anr. (JT 2004 Crl.M.C.No.788 of 2011 -: 4 :- (8) SC 124). 2. So far as acceptability of the evidence of PWs.1 and 2 regarding entrustment of `.1,60,000/- to the petitioner on behalf of respondent is concerned, it has come in evidence that petitioner and respondent are related and that respondent is physically disabled. PW2 is related to the petitioner and respondent and claimed to have been present at the time of Nikah and witnessed payment of `.1,50,000/- to the petitioner. He also claimed to have been present when `.10,000/- was given to the petitioner on 25.01.2006. True, no documentary evidence is produced by the respondent to prove the said payments. But, learned Magistrate found that there is no reason to disbelieve the evidence of PWs.1 and 2 and that has been confirmed by the learned Additional Sessions Judge. 3. I must bear in mind that petitioner and respondent are related. In such a situation and even otherwise, for payment of amount by the father on behalf of the respondent to the petitioner, one need not insist on documentary evidence. It is quite unlikely that in such a situation for such payment the father of the girl would obtain a document from the bride groom. This has been taken note of in the decision in Muhammed Davood Crl.M.C.No.788 of 2011 -: 5 :- and Anr. Vs. Hafsath and Anr. (2009(4) KHC 853) where it was held that so far as matrimonial disputes are concerned Courts need not necessarily insist on documentary evidence. In the case on hand evidence of PWs.1 and 2 and CPW1 have been evaluated by the trial court and revisional court and those courts concluded that there is no reason to disbelieve the evidence of PWs.1 and 2. I do not find reason to interfere with the said finding exercising supervisory jurisdiction under Sec.482 of the Code of Criminal Procedure (for short, "the Code”). 4. Then the next question is whether the sum of `.1,60,000/- is recoverable on the plea raised by the petitioner. In the decision relied by the learned counsel and referred supra, in the last but one paragraph the Supreme Court considered the question whether in considering the compenstation payable under Sec.357(3) of the Code the amount of dowry paid could be taken into account. The Supreme Court observed that complainant could not have filed a civil suit for recovery of dowry as that payment itself was illegal and prohibited under law. The Supreme Court also observed that having regard to the circumstances, the direction of the High Court for payment of Rs.Two Lakh as fine was not warranted and accordingly that Crl.M.C.No.788 of 2011 -: 6 :- direction was set aside. 5. The question is whether the said principle is applicable to the facts of the case. It is true that in paragraph 21 of the order of the trial court it is observed that it has come out in the evidence of PW1 that she is physically disabled and petitioner who is her relative married her by obtaining “dowry of `.1,50,000/-”at the time of Nikah. In paragraph 22 of the order for the purpose of deciding whether such evidence of PWs.1 and 2 can be believed learned Magistrate observed that normally 'dowry' is being paid at the time of the marriage among members of the Muslim community. Learned counsel submitted that the above said finding in paragraph 21 of the order was not challenged by the respondent in revision. But the mere fact that the said observation is not challenged, so far as she is not aggrieved by the ultimate order is no ground to accept observations. I have gone through the copy of petition preferred by the respondent before the learned Magistrate. There, in paragraph 2 what is stated is that respondent was given `.1,50,000/- as present at the time of marriage and that amount was misappropriated by the petitioner. Petitioner, under the pretext that it is required to purchase a property in the name of Crl.M.C.No.788 of 2011 -: 7 :- petitioner and respondent misappropriated it. It is further stated that on 25.01.2006 respondent was given `.10,000/- from her house which also was misappropriated by the petitioner. In other words respondent has not proceeded on the basis that the said payments were by way of dowry. In the light of the above, the mere fact that learned Magistrate observed in paragraph 21 of the order that evidence disclosed that `.1,50,000/- was given as dowry is not by itself sufficient to hold that what was given to the respondent was dowry, it was not recoverable by way of a civil suit and hence learned Magistrate went wrong in awarding the amount. Under Sec.3(d) of the Act all the properties given to respondent before, at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends are recoverable under sec.3 of the Act if divorce is effected. Hence the decision relied by the learned counsel has no application to the facts of the case. 6. What remained is whether the amount awarded as Iddat and towards reasonable and fair provision and for future maintenance are excessive. According to the respondent, petitioner is a Contractor earning `.20,000/- per month. It is also her version that he is earning `.10,000/- from landed properties. Crl.M.C.No.788 of 2011 -: 8 :- True, no documentary evidence was produced to show that petitioner has landed property but he admitted that Ext.P3 is the photograph of a building being constructed by him in his property. He claimed that he had landed property but he sold the same and he is now constructing a building at Puthupady. It is not as if what the respondent stated is a total falsehood. Petitioner had property but he did not produce documentary evidence to show that it was sold. It is revealed from Ext.P3 and the evidence of petitioner as CPW1 that he is constructing a new building in the property belonging to him. Learned Magistrate taking these circumstances into account and the fact that at any rate petitioner is able bodied, is capable of earning and the very fact that even after divorcing respondent he married again, held that the circumstances indicated his financial capacity. Learned Magistrate in the circumstances found that petitioner and respondent belonged to reasonably well placed middle class family . 7. The amount award as expenses during the period of iddat is only `.2000/- which is just around `.65/- a day. Respondent was aged 21years at the time of filing of the petition. Having regard to her needs, expenses and escalation of prices I Crl.M.C.No.788 of 2011 -: 9 :- am not inclined to think that `.65/- a day is a luxury for the respondent. At that rate, `.6,000/- has been awarded as expenses during the period of Iddat. 8. So far as future maintenance is concerned, learned Magistrate fixed it as `.1,60,000/- but the learned Additional Sessions Judge reduced it as `.1,20,000/-. I am not inclined to think, at the instance of petitioner that interference is required. Criminal miscellaneous case fails. It is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-