IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 Crl.Rev.Pet.No. 223 of 2002() ----------------------------- MC.61/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... REVN. PETITIONER(S): COUNTER PETITIONER IN MC.61/99 --------------------------------------------------- C.H.SALIM, S/O.HAMSA, CHATHANKOTTIL VAZHACODE, MULLURKKARA VILLAGE, THALAPPILLY TALUK. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU RESPONDENT(S): PETITIONER IN MC 61/99 ------------------------------------- ASURA, D/O.ABDULLA, NEDUMBURA VILLAGE, THALAPPILLY TALUK. ADV. SRI.SANTHEEP ANKARATH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/07/2009, ALONG WITH CRL.R.P.NO.2202/2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.Nos.223 of 2002 & 2202 of 2009 -------------------------------------- Dated this the 27th day of July, 2009. ORDER These revisions arise from the order passed by learned Judicial First Class Magistrate, Vadakara in M.C.No.61 of 1999 under Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act (for short, “the Act”). Parties are referred as petitioner and respondent as in the trial court for convenience. 2. Marriage was on 25.9.1997. Petitioner/divorced wife, claimed that at the time of marriage she was given thirty sovereigns of gold ornaments. Rs.40,000/- was given to the respondent/former husband, at the time of marriage. Later, she was also given house hold articles. They lived together till 6.12.1997 when respondent went abroad in connection with employment. Petitioner claimed that thereafter she was being subjected to ill-treatment by her in laws and ultimately she had withdrawn to her parental home and later on 22.9.1999 respondent pronounced talaq. Following that she filed petition in the court below under Section 3(1) of the Act claiming that she has to get Rs.6,000/- as expenses during the period of iddat and Rupees five lakhs as reasonable and fair provision for maintenance (hereinafter referred as future maintenance). She alleged that as respondent has misappropriated her gold ornaments she is Crl.R.P.Nos.223/2002 & 2202/2009 2 entitled to get Rs.1,50,000/- on that account. Further claim is the return of sum of Rs.40,000/- allegedly entrusted with the respondent and Rs.10,000/- by way of the value of the house hold articles which also retained by the respondent. She claimed that herself and respondent hailed from reasonably affluent circumstances and respondent was earning abroad at the rate of Rs.25,000/- per month apart from his income from landed properties. Respondent denied the allegations as regards cruelty, claim of wife and alleged misappropriation of gold ornaments, money and house hold articles. He claimed that he is working as a waiter in a hotel abroad earning only Rs.4,000/- per month. Both sides adduced evidence in the court below. Learned magistrate found that petitioner is entitled to get Rs.2,000/- per month as expenses during the period of iddat and at the same rate calculating future maintenance for five years awarded Rs.1,20,000/- towards reasonable and fair provision for future maintenance. Further claims of petitioner were rejected. Respondent has filed Crl.R.P.No.223 of 2002 in this Court challenging the award of Rs.1,20,000/- as against him. Petitioner, aggrieved by the rejection of certain claims made by her preferred Crl.R.P.No.110 of 2001 in the court of learned Sessions Judge, Thrissur. Considering the pendency of Crl.R.P.No.223 of 2002 in this Court, Crl.R.P.No.110 of 2001 was withdrawn to this Court and re-numbered as Crl.R.P.No.2202 of 2009. It is thus that parties are before me. Learned counsel for respondent contended that the amount awarded in favour of petitioner is Crl.R.P.Nos.223/2002 & 2202/2009 3 excessive and without entering a definite finding as to the status of parties as well as income of respondent. It is also contended that a mechanical observance of iddat by petitioner is not sufficient. According to learned counsel for petitioner there is no reason to interfere with the amount already awarded and at the same time learned magistrate was not correct in rejecting the claims regarding gold ornaments, money entrusted with the respondent and household articles retained by him. 3. This being an exercise of revisional power under Sections 397 and 401 of the Code of Criminal Procedure (for short, “Code”) revisional court is not required to re-appreciate the evidence. Function of the revisional court is to look into the findings entered by the subordinate criminal courts to see whether there is any illegality, irregularity or impropriety in such finding or in the order and reference to the evidence is permissible only for that limited purpose. 4. So far as contention of learned counsel for respondent as to the observance of iddat is concerned, argument is that a mechanical observance is not sufficient. It is admitted by both sides that they were living separate for about two years immediately preceding the pronouncement of talaq on 22.9.1999. Petitioner when examined as PW1 has stated that she observed iddat for three months. Contention of respondent is that it was unnecessary for her to observe iddat. That does not mean that because she observed iddat, she is disentitled to make any claim under Section 3(1) of the Act. Crl.R.P.Nos.223/2002 & 2202/2009 4 5. So far as the amount awarded in favour of petitioner is concerned, she gave evidence as PW1 and asserted that respondent was earning at the rate of Rs.25,000/- per month while respondent in his evidence as DW1 denied that and claimed that he was working as waiter in a hotel abroad earning Rs.4,000/- per month. It is also his case that as his salary was too meager and insufficient to sustain him, he relinquished that job and returned to his native place. He however did not adduce evidence as to what exactly his income was nor did he adduce evidence to show the nature of his employment. On these matters he could have adduced documentary evidence. Though petitioner in her evidence as PW1 claimed and, her father (PW2) asserted that latter has about seven acres of land, no documentary evidence in that line is produced. But respondent when examined as DW1 stated that PW2 is having around two acres of land. It has come in evidence that sisters of petitioner were sent in marriage in reasonably good circumstances and that her first cousins were working abroad. Coming to the side of respondent he has admitted that his family owned about two acres of land. There also he did not produce documentary evidence to show the extent of landed property his family owned. Thus, there is evidence to show that the parties hailed from reasonably sound circumstances. Petitioner has studied upto PDC and according to the respondent he is a SSLC fail. When considering the amount payable for future maintenance court has to take into account circumstances in which the parties Crl.R.P.Nos.223/2002 & 2202/2009 5 are placed including their economic background. In this case, respondent is able bodied and earning. He has studied upto SSLC. It is not as if he is incapable of earning. Petitioner was aged 21 years at the relevant time. Future maintenance should take in her basic needs such as food, clothe, accommodation, medicine and all other necessaries. I am not inclined to think that Rs.2,000/- per month awarded to the petitioner as expenses during the period of iddat and on that basis awarding future maintenance is excessive or beyond the capacity of respondent or, is an assessment made without reference to the relevant circumstances in which the parties are placed. As such there is no reason to interfere with the maintenance awarded during the period of iddat. 6. So far as future maintenance is concerned, it is seen that learned magistrate has taken only ‘five’ as the multiplier (sufficiency of which does not require consideration here since there is no claim for enhancement on that count) and accordingly Rs.1,20,000/- (2,000 x 12 x 5) was awarded as reasonable and fair provision for future maintenance which on the facts and circumstances stated above does not appear to me as excessive calling for interference. 7. Then what remained is whether learned magistrate was justified in rejecting other claims made by petitioner. I have referred to the nature of claim she made and its denial by respondent. PWs 1 and 2, wife and her father stated in their evidence that thirty sovereigns of gold ornaments were given to Crl.R.P.Nos.223/2002 & 2202/2009 6 the former at the time of marriage and that Rs.40,000/- was given to the respondent at the same time. PW3 is a broker who is claimed to have arranged the marriage. He supported the claim of petitioner. PW4 is the gold smith who is said to have made the gold ornaments for petitioner as instructed by PW2, father. He stated that PW2 had given some old ornaments to him to be melted and make new ornaments for the daughter and accordingly he did so. PW5, jeep driver said that he took the household articles to the house of respondent a few days after marriage. Contra evidence is given by respondent. He denied the allegations. He also denied that it was PW3 who had arranged the marriage. According to him it was DW2 who arranged the marriage. DW2 stated that there was no such payment of Rs.40,000/-, household articles or that petitioner was given thirty sovereigns. Learned magistrate has considered the evidence and found that there is no acceptable evidence to show entrustment of gold ornaments, money or household articles as stated by petitioner and at any rate that the same were misappropriated by respondent. 8. Ext.P3 is said to be a list of ornaments which PW4 made for (PW1) petitioner as instructed by PW2 (father). It has come out in evidence of PW4 that himself had been arrested for cheating a co-operative bank by pledging spurious gold ornaments and even during the time of the case on hand, that case was pending against him. His evidence did not find favour with Crl.R.P.Nos.223/2002 & 2202/2009 7 learned magistrate. According to petitioner, immediately after marriage her gold ornaments were collected by respondent from her and kept in his custody. It has come out in evidence that quite some time after marriage petitioner and respondent had gone for reception and at that time petitioner was wearing some of her ornaments. There is no reason to think that while petitioner was attending the reception she was not permitted to wear the entire gold ornaments. It is also to be remembered that at the time when petitioner admittedly withdrew to her parental home respondent was abroad. These circumstances were taken into account by the learned magistrate to disallow the claim for gold ornaments. According to respondent there was no custom of giving household articles immediately after the marriage, as that custom was to give household articles when the wife went back to matrimonial home after delivery which contingency had not occurred in this case. I have gone through the evidence rendered by both sides and the order of learned magistrate and find that it is after consideration of the evidence on record that learned magistrate refused to uphold claim of petitioner as regards gold ornaments, money and household articles. I find no illegality, irregularity or impropriety in the finding of the court below in that regard. 9. It is submitted by counsel on both sides that respondent has already deposited Rs.60,000/- in the court below pursuant to the order under challenge out of which petitioner has already withdrawn Rs.30,000/-. Crl.R.P.Nos.223/2002 & 2202/2009 8 Respondent has no objection in petitioner withdrawing the rest of the amount in deposit. Accordingly, petitioner/former wife is permitted to withdraw balance amount if any in such deposit. Learned counsel for respondent requested that respondent may be granted three months’ time to deposit the balance amount as per the impugned order. According to learned counsel, respondent is unable to raise the amount immediately on account of financial difficulties. Considering the circumstances stated by learned counsel, respondent is granted three months’ time from today to deposit balance amount in the court below. Result of my above discussion is that there is no reason to interfere with the order impugned at the instance of either petitioner or the respondent. These revisions fail and are accordingly dismissed. THOMAS P.JOSEPH, Judge. cks