IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 Crl.MC.No. 2115 of 2007() ------------------------- CRRP.20/2005 of ADDL.SESSIONS COURT, ADHOC-II. THALASSERY MC.158/1994 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... PETITIONER: ACCUSED ----------------------------- E.ABOOBACKER,S/O.AMINA UMMA, AGED 65 YEARS,NO OCCUPATION,VAYAKARA POST, PADIYOTTUCHAL,VIA.PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENT(S): COMPLAINANT ----------------------------------- 1. POTHIPARAMBATH BEEPATHU, D/O.ABDUL KHADER, AGED 55 YEARS,ARAKKAL, RESIDING AT POTHIPARAMBATH HOUSE, NEAR M.U.P.SCHOOL,MATTOOL AMSOM, DESOM,P.O.MATTOOL,KANNUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM. ADV. SRI.C.MURALIKRISHNAN (PAYYANUR) FOR R1 SRI.ABRAHAM GEORGE JACOB FOR R1 PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.M.C.NO. 2115 of 2007 ======================= Dated this the 8th day of April 2009 ORDER This petition is filed under Section 482 of the Code of Criminal Procedure with the prayer to quash Annexures A6 and A8 orders dated 11-3-2005 and 29-8-2006 of the Judicial First Class Magistrate Court, Payyannur and the Additional Sessions Court(Ahoc-II), Thalassery in M.C.No.158/1994 and Crl.R.P.No. 20/2005 respectively. 2. The statement of facts as alleged in this petition are as follows:- The petitioner was the revision petitioner in Crl.R.P.No.20/2005 before the Additional Sessions Court (Adhoc- II), Thalassery which was filed challenging the order passed by the Judicial first Class Magistrate Court, Payyannur in M.C.No.158/1994 filed by the first respondent herein under Section 3(2) and 4 of the Muslim Women (Protection of Rights CRMC.2115/2007 -2- on Divorce) Act,1986. The first respondent herein filed the above M.C. claiming a total amount of Rs.3,82,000/- under different heads as follows: 1. Maintenance for Iddat period :Rs. 6,000.00 2. Maintenance for a period of two years from the date of birth of the child :Rs. 24,000.00 3. Mahar or equivalent cost of 2 sovereign :Rs. 7,000.00 4. Cost of 30 sovereign :Rs. 1,05,000.00 5. Cost of the articles taken away By the respondent. :Rs. 15,000.00 6.Amount borrowed from the father :Rs. 25,000.00 7.Future maintenance :Rs. 2,00,000.00 ------------------------- Total :Rs.3,82,000.00 ================ 3. The learned Magistrate as per Annexure A6 order produced along with this petition dated 11-3-2005 in M.C.158/1994, the petitioner herein to pay Rs.2,22,000/- to the first respondent towards her claim as a divorced Muslim women. Accordingly, the learned Magistrate has found that the first CRMC.2115/2007 -3- respondent herein/divorced wife is entitled to get the amount as follows: 1. Maintenance during iddath period : Rs. 4,000.00 2. Maintenance for a period of two years from the date of birth of the child : Rs. 18,000.00 3. Future maintenance : Rs.2,00,000.00 ---------------------------- Total : Rs.2,22,000.00 ================= 4. The petitioner/husband challenged that order by filing revision petition and as per Annexure-A8 order dated 29-8-2006 in Crl.R.P.No.20/2005 the learned Additional Sessions Judge (Adhoc-II) has dismissed the revision petition with costs of Rs.1,000/-. Thereafter this petition is filed by the petitioner/husband before this Court on 29-6-2007. 5. This court as per order dated 3-7-2007 passed the following order: “Execution of the impugned order shall stand suspended on condition that the petitioner deposits an amount of Rs.2,04,000/-(Rupees two lakhs four thousand only) i.e. CRMC.2115/2007 -4- [total amount less the amount of maintenance for two years directed to be paid in favour of the 1st respondent] [i.e.Rs.2,22,000-Rs.18,000] within a period of 30 days from this date(including the amounts, if any, already deposited before the courts below.)” 6. When this case came up for hearing on 7-4-2009, the petitioner’s counsel advanced his argument. There was no representation on behalf of the first respondent. The registry on verification as directed by this court was informed from the lower court that a total amount of Rs.65,000/- only has been remitted so far in M.C.158/1994 by the petitioner herein. It follows that the condition stipulated by this court on 3-7-2007 while suspending the execution of the impugned order has not been complied with by the petitioner. Therefore, this matter has been taken up today and heard the learned counsel for the petitioner on merits of this petition. 7. It is submitted by the learned counsel for the petitioner that the finding of both the courts below regarding the fact that the first respondent herein was divorced by the petitioner is not CRMC.2115/2007 -5- supported by any valid and cogent evidence. Therefore, the direction of the courts below as per Annexures A6 and A8 orders to pay the reasonable and fair provision as maintenance to the first respondent under Sections 3 & 4 of the Muslim Women (Protection of Rights on Divorce) Act cannot be sustained. To prove that aspect, the petitioner has produced Annexure-A9 before this court as the true copy of the certificate obtained by the petitioner from the Mattul Central Jumamasjid Commity issued by the Secretary wherein it is certified that there are no records to show that the petitioner had divorced the respondent in the year 1980. No date is noted in Annexure-A9. The non- production of that document before the trial court is not satisfactory and it cannot be admitted at this stage. After a lapse of 14 years, the learned counsel for the petitioner has also submitted that a chance may be given to the petitioner to prove Annexure-A9 by remanding this case for fresh disposal. Considering the lapse of 14 years after the filing of the M.C., I find that the said prayer made by the learned counsel for the petitioner cannot be allowed which will certainly be an injustice in CRMC.2115/2007 -6- the present case. 8. It is true that no discussion was made by the trial court as revealed from Annexure-A6 while arriving at the amount awarded in favour of the first respondent. That mistake has been corrected by the learned Additional Sessions Judge as revealed from paragraph 9 of Annexure 8. The evidence adduced by both parties have been considered by the courts below especially by the learned Additional Sessions Judge, the revisional court. The Additional Sessions Judge has reappraised the evidence adduced by both parties and confirmed the order of the trial court. 9. 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 herein is attempting to gain access into this Court through the door of Section 482 of Cr.P.C. by filing this petition. Any and every error committed by 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 CRMC.2115/2007 -7- 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. 10. The courts below have concurrently found that Ext.P1 letter dated 20-9-1993 can be accepted and came to the conclusion that the petitioner herein has divorced the first respondent on 18-2-1980. Sitting as a court exercising inherent jurisdiction under Section 482 of Cr.P.C., I find no reason to doubt the wisdom or correctness of the said concurrent conclusion of the courts below. The petitioner divorced the first respondent by pronouncing ‘talak’ on 18-2-1980. 28 years elapsed after the divorce. Even then the proceedings are still pending and not finalised. For that reason also a further remand at this stage as argued by the learned counsel for the petitioner will definitely be an injustice to the divorced wife and it can be avoided. In the circumstances, I am of the opinion that the courts below have committed no error in coming to the conclusion and nothing has been shown to exist for this court to invoke the powers under Section 482 of Cr.P.C.to interfere with CRMC.2115/2007 -8- that concurrent finding. Hence, I find that this petition is devoid of merits and is liable to be dismissed. In the result the Crl.M.C.is dismissed. M.C. HARI RANI JUDGE ks.