Farisha v. C. T. Abdul Jaleel & The State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 6TH DAY OF DECEMBER 2012/15TH AGRAHAYANA 1934 Crl.Rev.Pet.No. 3933 of 2007 ( ) -------------------------------CRRP.11/2006 of ADDITIONAL DISTRICT COURT (ADHOC), MANJERI MC.24/2005 of C.J.M.,MANJERI REVISION PETITIONER(S)/RESPONDENT NO.1/PETITIONER:: -------------------------------------------------- FARISHA, D/O. IBRAHIM T.T., THYTHOTTIL HOUSE, MAMPAD P.O., NILAMBUR TALUK MALAPPURAM DISTRICT. BY ADV. SRI.O.V.MANIPRASAD COMPLAINANT(S)/REVISION PETITIONER/CR.PETITIONER AND ST: -------------------------------------------------------- 1. C.T. ABDUL JALEEL, S/O. MOOSA, CHEMBRATHODI HOUSE, KINARADAPPAN, VETTIPPARA POST MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. ROY THOMAS BY ADV. SRI.BABU S. NAIR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## N.K. Balakrishnan, J. ................................................. **Crl.R.P. No. 3933 of 2007** .................................................. Dated: 6th December, 2012 ## ORDER Petitioner, the divorced wife of the first respondent filed petition before the Chief Judicial Magistrate, Manjeri under Section 3(1) of Muslim Women (Protection of Rigths on Divorce) Act, claiming maintenance for the iddat period, reasonable and fair provision, for return of ` 50,000/- and ` 2,70,000/-, being the value of 60 sovereigns of gold ornaments which were taken away or appropriated by the respondent. Their marriage took place on 24-082003. It was contended that though it was agreed that 75 sovereigns of gold ornaments and ` 75,000/- would be given, her parents could give only gold ornaments worth 60 sovereigns and a cash of ` 50,000/- only. It was alleged that she was subjected to physical and mental cruelty by the inmates of the respondent. Subsequently, the respondent Crl.R.P. No. 3933 of 2007 -:2:- pronounced thalaq and thus divorced the petitioner in February, 2005. Respondent denied the allegations. The contention that ` 50,000/- and gold ornaments worth 60 sovereigns were also given and were appropriated by the respondent was denied. 2. The petitioner was examined as P.W.1 and the power-of-attorney of the respondent was examined as CP.W.1. Ext. R1 the power-of-attorney was also marked. No other evidence was adduced. 3. The learned Magistrate directed ` 7,500/- as maintenance for the iddat period of three months, ` 2,00,000/- as reasonable and fair provision and ` 50,000/as the money which was given to the respondent at the time of marriage and also for return of ` 2,00,000/- as the value of the gold ornaments taken by the respondent. Thus, a total amount of ` 5,27,500/- was ordered to be given by the respondent. Crl.R.P. No. 3933 of 2007 -:3:- 4. The above order was challenged by the respondent before the Sessions Court. The learned Sessions Judge confirmed the order for payment of ` 7,500/- as maintenance for the Iddat period and ` 2,00,000/- the amount fixed as reasonable and fair provision. The direction that the respondent should pay back the sum of ` 50,000/- which was the amount he had obtained at the time of marriage was also confirmed. But the direction issued by the trial Court to pay ` 2,70,000/being the value of gold ornaments was set aside. Though the respondent challenged the order pertaining to the maintenance for the Iddat period, reasonable and fair provision, and also the direction to pay ` 50,000/-, that Revision Petition was dismissed by this Court. This petition is filed by the petitioner contending that the order of the appellate court negativing the claim for ` 2,70,000/-, the value of gold ornaments, is unjust and unreasonable. -:4:- Crl.R.P. No. 3933 of 2007 5. The learned counsel appearing for both sides have been heard. It is submitted by the learned counsel for the petitioner that the evidence given by P.W.1 the divorced wife could have been accepted by the Sessions Court since that evidence was found acceptable by the trial Court. The further fact that the respondent/husband did not himself mount the witness box to deny the claim made by the petitioner also should have been given due weight. 6. The learned counsel for the respondent would submit that there is only the ipse dixit of the petitioner as P.W.1 who contends that gold ornaments worth 60 sovereigns were given to her at the time of marriage. The fact that the respondent himself did not mount the witness box, is no reason to hold that the claim made by the petitioner is to be allowed since the evidence given by P.W.1 was found to be totally unacceptable, being mutually inconsistent and unfounded, it is further argued. Crl.R.P. No. 3933 of 2007 -:5:- 7. The learned counsel for the respondent would submit that there is only a casual statement made by P.W.1 in evidence that she is entitled to get back ` 2,70,000/being the value of 60 sovereigns of gold ornaments. It is true that regrading ` 50,000/- which was stated to have been given to the respondent at the time of marriage also, there was only the testimony of P.W.1. However, that was allowed. It is not necessary to probe into that aspect. The question is whether there is legal evidence to hold that at the time of marriage gold ornaments worth 60 sovereigns were given to the petitioner. It is pointed out by the learned counsel for the respondent that the respondent left for gulf country on the 15th day of their marriage. According to P.W.1, it was the respondent's mother who asked her to part with the gold ornaments and, accordingly, she removed the entire gold ornaments and handed over to the respondent's mother. Crl.R.P. No. 3933 of 2007 -:6:- 8. According to the learned counsel, that is against the allegation made in the petition. Respondent's mother is not made a party to the proceedings. The learned counsel for the petitioner submits that when such a specific statement was made by P.W.1 the respondent's mother should have been examined to deny that statement. It is further argued that the statement given by P.W.1 that when the mother asked her (P.W.1) to give the entire gold ornaments, she without any objection, removed the entire gold ornaments and handed over the same to her mother-in-law, is too hard to be digested. 9. Though it was stated by P.W.1 that landed property was sold for the purpose of purchasing gold ornaments and it was with that amount they went to the jewellery by name Maharani Gold Park for purchase of gold ornaments, the document as per which the landed property was stated to have been sold was not produced. No doubt, -:7:- Crl.R.P. No. 3933 of 2007 the sale deed may not reflect the actual market value of the land for which the property was sold. That apart, no bill, voucher or anything of that sort issued from the jewellery was also produced. If the petitioner or parents had gone for purchase of the gold ornaments somebody else also might have accompanied them. No such person was examined to prove the purchase of the gold ornaments from the jewellery mentioned above. It is true that when a woman is given in marriage, she would be given some gold ornaments. But at the same time the contention that she had been given gold ornaments worth 60 sovereigns cannot be accepted as such. The learned counsel for the respondent submits that if it is stated in the petition that it was 150 sovereigns of gold ornaments, given at the time of marriage then also the same would be the fate of the respondent. That is not the requirement of law, the learned counsel submits. To satisfy the judicial conscience of the -:8:- Crl.R.P. No. 3933 of 2007 Court there must be something more. There is only the casual statement made by P.W.1 in support of the averment made in the petition. The fact that the respondent himself did not mount the witness box cannot be a reason to hold that the claim made by the petitioner is true. It is pointed out that CPW1 is the brother of the respondent who was actually present at the time of marriage. His evidence also cannot be totally eschewed from consideration. He denied the averments made in the petition and also challenged the evidence given by P.W.1. Therefore, there is only the interested testimony of the rival parties (P.W.1 and of RW1) pertaining to the claim made by the petitioner regarding the gold ornaments. Therefore, in the absence of any other evidence it is not possible to hold that the petitioner was given 60 sovereigns of gold ornaments at the time of the marriage or that the entire 60 sovereigns of gold ornaments were taken away by -:9:- Crl.R.P. No. 3933 of 2007 the respondent's mother. The fact that the respondent's mother is not a party, also is a factor to be taken into consideration. According to the petitioner, the family members of the respondent had subjected her to cruelty . If as a matter of fact, there was any such incident of subjecting P.W.1 to cruelty or that her gold ornaments were taken away by the respondent or his mother, certainly, she would have approached the Jamayath/Mahal Committee. They did not approach anybody for that purpose. It is not that the parties should approach the Mahal Committe/Jamayath Committee, but it is pointed out by the learned counsel for the respondent that it is usually being done by such persons to see that the matter is settled then and there. The parents or other persons also might be having direct knowledge about the purchase of the gold ornaments or the use or misuse of the same by the respondent or his mother. In the absence of any other Crl.R.P. No. 3933 of 2007 -:10:- evidence, it is difficult to hold that the gold ornaments were taken away by the respondent or his mother. It is true that the petitioner (P.W.1) might have been given some gold ornaments at the time of marriage. But there is no guarantee that she was not wearing the same or that she did not take it with her when she returned to her parental house,for, normally, no woman will keep the gold ornaments in the husband's house, that too when there were estrangements and bickerings in the matrimonial home. 11. The learned counsel for the revision petitioner submits that the revision petitioner was denied the interest on the amount awarded as maintenance for iddat period and reasonable and fair provision which ought to have been paid by the respondent during the Iddat period or at any rate, on the date of expiry of the Iddat period. That was not done. The learned counsel has relied upon the decision of Crl.R.P. No. 3933 of 2007 -:11:- this Court in **Chand Mohammed v. Seenath - 2011(4) KLT 671,** where it was held that the divorced woman is entitled to get interest on the amount of maintenance and reasonable and fair provision at the rate of 9% per annum from the date of petition till date of payment. It is only to that extent this Revision Petition is allowed. 12. Learned counsel for the petitioner submits that the just claim of the divorced wife may not be denied simply for the reason that her case was not properly conducted by the trial Court. Learned counsel submits that there are photographs and other documents to show that she was given gold ornaments at the time of marriage. Hence, the learned counsel submits that an opportunity may be given to the petitioner to adduce further evidence. 13. In the result, this Crl.R.P. is disposed of as stated below:- The claim for interest payable on the amount as -:12:- Crl.R.P. No. 3933 of 2007 aforesaid (maintenance for iddat period and reasonable and fair provision) at the rate of 9% per annum from the date of petition till the date of payment is allowed. The respondent is directed to pay the said amount within two months from today. As regards the claim for return of gold ornaments or the value thereof, the matter is remanded to the trial Court for fresh disposal. Both parties are directed to adduce evidence on that point. Parties to cause appearance before the trial Court on **19-12-2012** . Dated this the 6th day of December, 2012. Sd/-N.K. Balakrishnan, Judge. ani. **/true copy/** ## **P.S. to Judge** Crl.R.P. No. 3933 of 2007 -:13:-