IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 Crl.MC.No. 4140 of 2006() ------------------------- CRRP.79/2004 of ADDL.SESSIONS COURT, FAST TRACK NO.1(AD HOC), MANJERI. MC.46/2002 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... PETITIONER: REVISION PETITIONER/RESPONDENT ------------------------------------------------------- VELLACHOLA ABDLUL SALAM, S/O.MOHAMMED, KARIPARAMBU, AREACODE, REP.BY HIS POWER OF ATTORNEY HOLDER VALLANCHIRA MOHAMMED, KARIPARAMBU, AREACODE. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S)/RESPONDENT/PETITIONER & STATE: ------------------------------------------------------------- 1. VALLIKKATTU SHAKKEELA, D/O.MOHAMMED (LATE), MUNDUMUZHI, VAZHAKKAD P.O., MALAPPURAM DISTRICT. 2. STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI THOMAS JOHN AMBOOKKEN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/3/2009, ALONG WITH CRMC NO. 472 OF 2007, THE COURT ON 03/04/2009 PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.7466/06 IN Crl.M.C.NO.4140/06 //DISMISSED// 3.4.09 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. --------------------------------------- CRL.M.C.Nos.4140/2006 & 472/2007 --------------------------------------------- DATED THIS THE 3rd DAY OF APRIL, 2009 O R D E R The petitioner in Crl.M.C.4140/06 is the husband and petitioner in Crl.M.C.472/2007 is the divorced wife, who preferred these petitions under Section 482 of Cr.P.C. challenging the common judgment dated 16.9.2006 in Crl.R.P.No.78/2004 and 79/2004 passed by the learned Additional Sessions Judge, Fast track Court No.-I(Ad hoc), Manjeri. 2. The facts of the case as narrated in these two petitions are as follows: The petitioner in Crl.M.C.4140/2006 is the revision petitioner in Crl.R.P.No.79/2004 and the respondent in M.C.No.46/2002 before the Court of J.F.C.M., Malappuram. The first respondent herein/divorced wife filed a petition under Section 3(1) of Muslim Women (Protection of Rights on Divorce) Act, 1986. She claimed Rs.1,25,000/- being the money received by the husband at the time of marriage from the brother-in-law of her mother, Rs.2,62,500/- being the value of 75 sovereigns of gold CRL.M.C.Nos.4140/06 & 472/07 -2- ornaments belong to her and appropriated by the husband, Rs.6,000/- as maintenance amount for “Iddat' period at the rate of Rs.2,000/- per month, Rs.3,60,000/- as fair and reasonable provision for her future maintenance and Rs.9,000/- for the maintenance of the child for 9 months at the rate of Rs.1,000/- per month. In that petition, PWs 1 to 3 were examined and marked Exhibits P1 to P6 on the side of the complainant- petitioner in Crl.M.C.472/07. On the side of the petitioner in Crl.M.C.4140/06/respondent in M.C.46/02, RW1 who is the father and the power of attorney holder was examined. Considering the evidence adduced by both parties, the trial court has ordered to pay Rs.2,38,000/- towards the price in respect of the gold ornaments and also to pay an amount of Rs.1,25,000/- which was received by him from PW2 and ordered to pay an amount of Rs.6,000/- as maintenance for the iddat period and a sum of Rs.1,20,000/- as reasonable and fair provision under Section 3(1) (a) of the Act. The respondent was further ordered to pay an amount of Rs.4,500/- as maintenance of the child for 9 months. Copy of that judgment is produced as Annexure A1. Thereafter, CRL.M.C.Nos.4140/06 & 472/07 -3- Crl.R.P.No.78/2004 and Crl.R.P.No.79/04 were filed by the petitioner and the respondent challenging Annexure-I judgment. The revision petition, Crl.R.P.No.78/2004 filed by the petitioner- wife for enhancing the amount was dismissed. Crl.R.P.No.79/04 filed by the respondent-husband was allowed in part and the direction to pay Rs.1,25,000/- as money of the petitioner appropriated by the respondent was set aside and the petitioner was found to be entitled to get a total amount of Rs.3,65,800/- under various heads as per Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Thereafter, Crl.M.C.4140/06 is filed by the respondent-husband with the prayer to set aside the order dated 9.8.2004 in M.C.No.46/02 as modified and confirmed by the learned Additional Sessions Judge, Fast track Court -I(Ad hoc), Manjeri in Crl.R.P.No.79/04. Crl.M.C.No.472/2007 is filed by the petitioner-divorced wife with the prayer to set aside the judgment in Crl.R.P.No.78/04 and to enhance the amount awarded to the petitioner as per order in M.C.No.46/2002 of the Court of J.F.C.M., Malappuram, to secure the ends of justice. CRL.M.C.Nos.4140/06 & 472/07 -4- 3. Heard the learned counsel appearing for the petitioners and the first respondent in both petitions. 4. The parties would be referred according to their rank in M.C. as petitioner and respondent respectively to narrate the facts of their case before the courts below. The respondent married the petitioner on 23.5.2000 and divorced her on 15.6.2002 are admitted. The petitioner filed M.C.No.46/2002 before the Court of J.F.C.M., Malappuram under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 as the divorced wife of the respondent wherein she has claimed Rs.1,25,000/- being the money received by the husband at the time of marriage from the brother-in-law of her mother, Rs.2,62,500/- being the value of 75 sovereigns of gold ornaments belongs to her and appropriated by the husband, Rs.6,000/- as amount for “Iddat' period of three months, Rs.3,60,000/- as fair and reasonable provision for her future maintenance and Rs.9,000/- for the maintenance of the child for 9 months. Considering the evidence adduced by both parties, both oral and documentary, the trial court has ordered to pay a CRL.M.C.Nos.4140/06 & 472/07 -5- total sum of Rs.4,93,500/- as follows: Rs.2,38,000/- : Value of 68 sovereigns of gold ornaments. Rs.1,25,000/- : Money received from her relative. Rs. 6,000/- : 'Iddat' expenses. Rs.1,20,000/- : Reasonable and fair provision for future maintenance Rs. 4,500/- : Maintenance for the child. 5. Both the petitioner and the respondent challenged that finding of the trial court by filing revision petitions before the learned Additional Sessions Judge, Fast Track Court No.I (Ad hoc), Manjeri. The learned Additional Sessions Judge reappreciated the finding of the trial court and as per common judgment dated 16.9.2006, produced as Annexure B in Crl.M.C.472/07, dismissed the criminal revision petition filed by the divorced wife and allowed the criminal revision petition filed by the respondent/former husband in part, whereby the order of the trial court to pay Rs.1,25,000/- as money to the petitioner/ divorced wife appropriated by the respondent/ husband was set aside. The total amount to which the divorced wife was entitled to get from her former husband was reduced to Rs.3,68,500/- CRL.M.C.Nos.4140/06 & 472/07 -6- under Section 3 of Muslim Women (Protection of Rights on Divorce)Act, 1986 under the heads of value of 68 sovereigns, expenses during iddat period, reasonable and fair provision for future maintenance and maintenance for the child. Legality, propriety and correctness of that order of the revisional court is questioned by both parties before this Court by filing separate petitions under Section 482 of Cr.P.C. Both petitioners contend that the finding of the revisional court is illegal, irregular and has got injustice, as far as it is concerned against them. 6. As far as the petitioner in Crl.M.C.4140/06 is concerned, he has suffered the direction under Section 3 of Muslim Women (Protection of Rights on Divorce)Act, 1986. The petitioner was initially directed by the learned Magistrate to pay an amount of Rs.4,93,500/- under different heads to the first respondent. The learned Additional Sessions Judge in revision partly modified that direction. The present direction to the petitioner in this Crl.M.C. is to pay an amount of Rs.3,68,500/-. The petitioner claims to be aggrieved by that revised direction. 7. A finding of fact was entered that 68 sovereigns of CRL.M.C.Nos.4140/06 & 472/07 -7- gold ornaments belonging to the divorced wife were in the hands of the petitioner and he had made use of the same. The learned Magistrate directed payment of an amount of Rs.2,38,000/- on that head. The learned Additional Sessions Judge found that quantification of the amount is correct and confirmed the same. 8. According to the learned counsel for the petitioner in the present case, marriage, paternity and divorce are admitted. The averment that the respondent was having 75 sovereigns of gold ornaments at the time of marriage is denied. She was having small quantity of gold ornaments and the same was in her custody. No gold or money belonging to the respondent was misappropriated by the petitioner, it is submitted. It is also argued by the learned counsel for the petitioner that there is no convincing evidence regarding misappropriation of gold ornaments by the petitioner and that Exhibit P1 series produced before the trial court are only quotations for 67¾ sovereigns of gold. It do not contain either the names of the jewellery or purchaser and the same were relied on by both courts to allow value of gold ornaments in favour of the respondent, which is CRL.M.C.Nos.4140/06 & 472/07 -8- manifestly illegal, irregular and is to be corrected, to meet the ends of justice, it is submitted. According to the learned counsel, since the respondent has obtained talaq at her instance, it can be presumed that she has taken away whatever gold ornaments she was having at the time when she went to her home. So also, there is no material evidence to show that the respondent required any amount for her maintenance during the iddat period. The monthly income of the petitioner calculated by both courts is without any basis and the courts below erred in holding that the respondent is entitled to get Rs.1,20,000/- as reasonable and fair provision in the absence of convincing evidence in proof of the income of the petitioner and the requirements of the respondent, which also caused injustice to the petitioner. 9. It is argued by the learned counsel appearing for the 1st respondent/wife in Crl.M.C.No.4140/06 that the petitioner/ husband was having an avocation in abroad and was getting an amount of Rs.30,000/- per month in addition to the income from the landed properties. The contention of the petitioner that he was working as a cleaner in a workshop in Saudi Arabia and was CRL.M.C.Nos.4140/06 & 472/07 -9- getting only 500 Saudi Riyal per month as salary, which is not sufficient even to look after his family members, etc. are false. The finding of both the lower courts that the income of the petitioner can be fixed at Rs.10,000/- per month is incorrect and that amount has been arrived at by the courts below without considering the evidence on record. According to the learned counsel, the revisional court did not consider that the amount granted by the trial court is too meagre to meet the expenses of the first respondent and her child. The 1st respondent was aged 22 years only at the time of divorce and the courts below ought to have taken the calculation for 15 years instead of taking the multiplier of 5 in calculating the amount towards reasonable and fair provision. It is also argued by the learned counsel for the 1st respondent in this petition that if a further opportunity is given to the 1st respondent herein to adduce evidence with regard to her claim in respect of the gold ornaments, she will be able to prove the same by examining additional witnesses. 10. It is revealed from the order of the trial court that the 1st respondent-husband had not entered into the witness box to CRL.M.C.Nos.4140/06 & 472/07 -10- substantiate his contentions raised in the counter statement. RW1 examined on the side of the respondent is the father and the power of attorney holder of the 1st respondent. The trial court has considered the evidence adduced by both parties and the finding of the trial court was partly modified by the revisional court as per Annexure B order dated 9.8.2004.. The learned Additional Sessions Judge has reappraised the evidence adduced by both parties and reduced the amount awarded in favour of the divorced wife and found that she is not entitled to get Rs.1,25,000/- as ordered by the trial court towards the money appropriated by the respondent. This finding of the learned Additional Sessions Judge in Crl.R.P.No.78/2004 is challenged by the respondent-divorced wife by filing Crl.M.C.No.472/07 before this Court. 11. A second revision petition is not legally maintainable in view of the bar under Section 397(3) Cr.P.C. and that explains why the petitioner and respondent are attempting to gain access into this Court through the door of Section 482 of Cr.P.C. by filing separate petitions. Any and every error committed by CRL.M.C.Nos.4140/06 & 472/07 -11- subordinate courts in law or on facts cannot ipso facto persuade this Court to invoke the extraordinary inherent jurisdiction under Section 482 of Cr.P.C. Has justice failed? Is there miscarriage of justice? Is there abuse of process of the Court? These are the crucial questions that this Court will have to consider when invited to invoke the powers within the contours of the jurisdiction under Section 482 of Cr.P.C. 12. Regarding the claim of value of gold ornaments, both the courts have come to the conclusion that 68 sovereigns of gold ornaments were handed over and were used by the respondent-husband, can be accepted. The gold ornaments have to be returned. That has to be done at the time of divorce or thereafter. If that obligation is not discharged, the divorced wife must be adequately compensated under Section 3 of Muslim Women (Protection of Rights on Divorce)Act. Both the courts found that oral evidence of PWs 1 and 2 and Exhibit P1 series (6 numbers) can be accepted and in the light of that evidence, both oral and documentary, Rs.2,38,000/- was ordered as value of 68 sovereigns of gold ornaments in favour of the petitioner-wife. CRL.M.C.Nos.4140/06 & 472/07 -12- The courts below have concurrently found that Exhibit P1 series can be accepted and acted upon. Sitting as a court exercising inherent jurisdiction under Section 482 of the Cr.P.C., I find no reason to doubt the wisdom or correctness of the said concurrent conclusion of facts of the courts below. While calculating the price of the gold, fairness and reasonableness demands that it must be computed as on the date on which the liability to return arises. The respondent divorced the petitioner by pronouncing talaq on 15.6.2002. About 8 years elapsed after the divorce. Even then the proceedings are still pending and not finalised. A further remand at this stage as argued by the learned counsel for the petitioner-divorced wife will definitely be an injustice and can be avoided. Both courts below have committed no error in coming to the conclusion that Rs.3,500/- per sovereign can be reckoned safely as the value. Going by the current rates, even that does appear to me to be grossly inadequate. In the absence of challenge from the claimant, it is not necessary to go into that question in detail. In these circumstances, I am of the opinion that the courts below have committed no error in coming to the CRL.M.C.Nos.4140/06 & 472/07 -13- conclusion that 68 sovereigns of gold ornaments were with the petitioner and she is entitled to get Rs.2,38,000/- as the value of the same from the respondent. Absolutely, nothing has been shown to exist for this Court to invoke the powers under Section 482 of Cr.P.C. to interfere with that concurrent finding. 13. In Crl.M.C.No.4140/06 filed by the respondent before this Court, he challenges the award of Rs.1,20,000/- under the head “reasonable and fair provision for future maintenance” and contended that the courts below erred in awarding a very huge amount under that head. In Crl.M.C.No.472/07 filed by the petitioner before this Court, she challenges that the amount awarded towards reasonable and fair provision is highly unreasonable and meagre and that the courts below went wrong in calculating the income of the 1st respondent as Rs.10,000/- per month. According to the petitioner, the amount granted by the courts below is too meagre a sum to meet her expenses and her child. Thus the challenge is mounted against the quantum of the amount directed to be paid. Both courts below found that there was satisfactory indications and evidence to show the financial CRL.M.C.Nos.4140/06 & 472/07 -14- affluence of the respondent. He was employed at abroad and his monthly income was accepted as Rs.10,000/-. Considering the evidence on record, the courts below took the view that an amount of Rs.1,20,000/- for 60 months at the rate of Rs.2,000/- each would be sufficient for discharging the liability of the respondent towards fair and reasonable provision for future maintenance of the petitioner/divorced wife. 14. Reasonable and fair provision for future maintenance is payable by the former husband on divorce under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act. This liability is cast upon the husband on account of the past advantage received by him by reason of the relationship with the divorced woman or on account of the past disadvantage suffered by her by reason of matrimonial consortium. It is in the nature of a compensatory gift or a solatium to sustain the woman for her life after the divorce. Besides paying maintenance to the divorced wife for the iddat period, former husband has to provide reasonably and fairly for the future needs of the divorced wife, ie; needs of the divorced wife after the period of iddat and till her CRL.M.C.Nos.4140/06 & 472/07 -15- marriage or death. 15. The petitioner aged 22 years only lost support of her husband. She continues to be a divorced woman. The needs of the divorced woman are relevant in fixing the quantum of “reasonable and fair provision for future maintenance” under Section 3(1) (a) of the Muslim Women (Protection of Rights on Divorce) Act. 'Maintenance' includes the expenses for maintenance of a woman in the same way as she was being maintained before divorce. All reasonable amenities in life of a divorced woman which she enjoyed at the time of and during the continuance of marriage could also be expected to be continued in her future life after divorce as well. The quantum of reasonable and fair provision for future maintenance should be fixed, taking into account the status of life of the divorced woman at the time of marriage and during the continuance of marriage. 16. It has come out in evidence that at the time of marriage and even at the time of tendering evidence of the parties before the lower court, the respondent was working in Saudi Arabia. The respondent did not appear before court to CRL.M.C.Nos.4140/06 & 472/07 -16- adduce evidence. On the other hand, his father, who has no direct knowledge of the relevant facts except what is informed by his son, gave evidence. As regards the salary drawn by the respondent, his case in the counter is that he was getting only 500 Saudi Riyal per month as a Cleaner in a workshop. The salary drawn by the respondent could very well be proved by documentary evidence. What exactly was the salary drawn by him is a fact especially within his knowledge and under Section 106 of the Evidence Act, the burden is on him. The respondent having not discharged the burden of proof cast on him, the divorced wife cannot be faulted for not proving the exact amount of salary drawn by the former husband. The evidence adduced by the wife in that respect is to be accepted in the absence of any positive evidence from the side of the husband, especially when the burden of proof is on him. It is true that the trial court has taken the view that payment of a lumpsum amount equivalent to 5 years of monthly maintenance would be sufficient discharge of the liability under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act. The same is confirmed by the learned CRL.M.C.Nos.4140/06 & 472/07 -17- Sessions Judge also in the revision. But that is far from saying that maintaining the divorced wife for a period of 5 years after her divorce would be sufficient discharge of such liability. The fair and reasonable provision which a divorced husband must make is for the welfare of his divorced wife till she is remarried or till the end of her life, whichever event occurs earlier. We have convincing indications and there is no contention contra that the wife is not remarried till date. Taking into account the admitted and proved facts in this case, it is only just and reasonable to fix the quantum of reasonable and fair provision for future maintenance at Rs.1,20,000/- as ordered by the courts below, which by no stretch of imagination can be stated to be excessive. 11. So also no failure of justice results from the impugned order by awarding Rs.6,000/- as the expenses during iddat period and Rs.4,500/- as the maintenance of the child for 9 months and the same is based on the evidence on record. At any rate, I am satisfied that the said concurrent finding of the courts below is not vitiated by any incorrectness or impropriety much less perversity which can persuade this Court to invoke its power CRL.M.C.Nos.4140/06 & 472/07 -18- under Section 482 of Cr.P.C. Therefore, the said quantum fixed by the courts below does not warrant interference by invoking the extraordinary inherent jurisdiction available to this Court under Section 482 of Cr.P.C. 12. Considering the allegations in the petition filed by the petitioner-divorced wife and the oral evidence of PWs 1 and 2, the learned Additional Sessions Judge found in Crl.R.P.No.79/04 filed by the respondent-husband that the said amount of Rs.1,25,000/- was paid by PW2 directly to the respondent and such payment would not come within the mischief of clause (d) of Section 3(1) of the Muslim Women (Protection of Rights on Divorce)Act. Accordingly, the learned Sessions Judge found that the petitioner is not entitled to get Rs.1,25,000/- from the respondent on that head and that amount ordered by the trial court was reduced in Crl.R.P.No.79/04 preferred by the respondent. In the absence of any evidence to deviate from that conclusion, which has been reappreciated by the learned Additional Sessions Judge in revision, I find that no interference is required by this Court in respect of that finding by invoking the CRL.M.C.Nos.4140/06 & 472/07 -19- power under Section 482 of Cr.P.C. 13. In any view of the matter, I am of the opinion that interference with the impugned order of the learned Additional Sessions Judge, Fast Track Court-I(Adhoc), Manjeri, by invoking the powers under section 482 of Cr.P.C. at the instance of the petitioner and the respondent before the courts below is totally unnecessary. Crl.M.C.No.4140 filed by the former husband and Crl.M.C. 472/07 filed by the divorced wife are devoid of merits and are accordingly dismissed. In the result, both petitions are dismissed. M.C.HARI RANI, JUDGE. dsn