K. MOHAMED SHAFI v. SHAMSIYA and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 6TH DAY OF MAY 2014/16TH VAISAKHA, 1936** **Crl.MC.No. 4031 of 2012** **----------------------------------** **AGAINST THE ORDER IN MC 9/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT-V, KOZHIKODE AGAINST THE ORDER/JUDGMENT IN CRL.RP 18/2011 of ADDITIONAL SESSIONS COURT, KOZHIKODE** **----------------** ## **PETITIONER(S)/1ST RESPONDENT IN REVISION PETITION/RESPONDENT IN M.C.:** - **-------------------------------------------------------------------------------------------------------------------** **K. MOHAMED SHAFI, S/O.LATE C.AHAMMED KOYA, AGED 36 YEARS, KALATHINKAL HOUSE, ASMATH BUILDING, KALLITHODI ROAD, FEROKE, CHUNGAM, KOZHIKODE NOW RESIDING AT KALATHINKAL HOUSE, KOTTA, KUTTIPALAKKAL, POST MUKKAM, KOZHIKODE DISTRICT.** **BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA** **RESPONDENT(S)/REVISION PETITIONER/2ND RESPONDENT/IN REVISION PETITION/PETITIONER IN M.C. AND STATE:** **-------------------------------------------------------------** **1. SHAMSIYA, D/O.SAITHALI, AGED 30 YEARS, KALATHINKAL HOUSE MANIYATTUPARAMBU, NORTH BEPUR P.O., KOZHIKODE 673008.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **R1 BY ADVS. SRI.V.V.SURENDRAN1 SRI.P.A.HARISH** **R2 BY PUBLIC PROSECUTOR SRI.N.SURESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01-04-2014 THE COURT ON 06-05-2014, PASSED THE FOLLOWING:** **PJ** **Crl.MC.No. 4031 of 2012** **----------------------------------** ## **APPENDIX** **PETITIONER(S) ANNEXURES ----------------------------------------ANNEXURE-A1: CERTIFIED COPY OF THE ORDER IN M.C.NO.9 OF 2007 PASSED BY THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, KOZHIKODE. ANNEXURE-A2: CERTIFIED COPY OF THE ORDER DATED 9.5.2012 IN CRL.R.P. NO. 18 OF 2011 PASSED BY THE FIRST ADDITIONAL SESSIONS COURT, KOZHIKODE DIVISION. RESPONDENTS' ANNEXURES -----------------------------------------NIL.** **/ TRUE COPY / P.S. TO JUDGE** **PJ** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.4031 of 2012 .................................................. Dated this the 6[th] day of May, 2014. ## **O R D E R** This is a petition filed by the counter petitioner in M.C.No.9/2007 on the file of the Judicial First Class Magistrate Court-V, Kozhikode and the respondent in Crl.R.P.No.18/2011 on the file of the First Additional Sessions Court, Kozhikode to quash the proceedings to the extent objected by the petitioner in Cr.R.P.No.18/2011 under Section 482 of the Code of Criminal Procedure (herein after referred to as 'the Code'). 2. The original proceedings in M.C.No.9/2007 was taken on file on the basis of a petition filed by the respondent herein under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act. The case of the original petitioner in the petition was that she is the former wife of the petitioner herein. The marriage between the petitioner and the respondent was solemnised on 1.4.1993. At the time of marriage, the parents of the respondent herein had given 25 sovereigns of gold ornaments and paid cash of Rs.25,000/- to the petitioner herein. After the marriage, mother of the petitioner obtained gold Crl.M.C.No.4031 of 2012 2 ornaments of the respondent herein for keeping the same in her safe custody. Subsequently, with the help of the father of the respondent, who was working abroad, the petitioner herein went abroad and after 14 months, he returned from Gulf. After some time, he obtained Rs.50,000/- from the father of the respondent and went to Gulf again. That time also, he returned within a few months. The gold ornaments given to her were appropriated by the petitioner herein. In the marital relationship, two children were born to them. He was working as a Peon in Agricultural Department at the time of marriage. She was ill treated by the petitioner herein and also his relatives demanding dowry. She was taken to his quarters in the working place. There also the ill treatment continued. He had married another woman by name Rahmath and he was residing with her. In connivance with the second wife, she was driven out of the house. Since she was unable to tolerate the ill treatment at the hands of the petitioner herein and his relatives, she filed a complaint before the Magistrate court which was forwarded to the police and a crime was registered. While so, he pronounced triple talaq and intimated the same to the respondent herein by letter dated 7.1.2006. Thereafter Crl.M.C.No.4031 of 2012 3 she observed iddath. He has not paid any maintenance during the period of iddath and he had not returned her gold ornaments or the cash received at the time of marriage and also at the time when he went abroad. He is getting Rs.8,000/as salary. She claimed Rs.6,000/- towards maintenance during iddath period and return of 25 sovereigns of gold ornaments or its value Rs.1,77,000/- and Rs.3,00,000/- towards fair and reasonable provision and also return of Rs.75,000/- obtained by the petitioner herein from her parents at the time of marriage and also at the time when he went abroad on the second occasion. 3. The petitioner herein, who is the respondent in the main proceedings, appeared and filed counter contending as follows: He admitted the marriage and birth of two children in the marriage. He had also admitted that on 7.1.2006, he divorced her and informed the same to her by sending a registered letter. He denied the allegation that at the time of marriage, 25 sovereigns of gold ornaments were given and Rs.25,000/- cash was given which were misappropriated by him. He had also denied the allegation that the father of the respondent herein Crl.M.C.No.4031 of 2012 4 paid Rs.50,000/- to him at the time when he went abroad on the second occasion. According to him, on the first occasion, he went to Gulf on visiting visa and after the period of visa, he came back. He did not get any employment there. On the second occasion, he went there,but did not get any proper job. So he immediately came back. According to him, the attitude of the respondent changed after he returned from Gulf without getting any proper employment there. The allegation that she was residing in her house for a long period after the marriage is not correct. She resided there only after a few days and thereafter she was taken to his tharavadu house and thereafter she was taken to the quarters allotted to him in his work place. According to him, she was not satisfied with the amenities available there and she wanted to go and live in her house. In fact, after the filing of the false complaint to the police, she left the house. At that time, she had taken all the ornaments with her. She was given only ornaments less than 20 sovereigns which were kept by her and taken by her at the time when she left the house. He was getting only Rs.3,000/- and odd after deduction which is hardly sufficient to meet the requirements of his family. While the respondent Crl.M.C.No.4031 of 2012 5 herein left the house, the children were with him and without his consent, she had taken them from the school and though a complaint was filed, that was not properly prosecuted by the police. She filed M.C.No.205/2007 claiming maintenance for herself and children and later she had withdrawn the same when she came to understand that it is not maintainable. The respondent herein, who is the petitioner in the main case, is not entitled to get any of the reliefs claimed in the petition. However the amounts claimed are also exorbitant. So he prayed for dismissal of the application. 4. PWs 1 to 3 were examined and Exts.P1 to P6 series were marked on the side of the respondent herein in the lower court. The petitioner herein was examined as RW1 and Ext.D1 was marked on his side. After considering the evidence on record, the learned Magistrate awarded Rs.6,000/- as maintenance during the period of iddath and also awarded Rs.1,68,000/- as reasonable and fair provision, but rejected the claim for return of gold ornaments or its value and the amount alleged to have been paid at the time of marriage and also at the time when the petitioner went abroad on the second occasion. Dissatisfied with the dismissal of the claims, the 6 Crl.M.C.No.4031 of 2012 respondent herein filed Crl.R.P.No.18/2011 before the Sessions Court, Kozhikode and it was disposed of by the First Additional Sessions Judge by the impugned judgment and allowed the claim for return of 5 sovereigns of gold ornaments or its value of Rs. 1 lakh and also directed the petitioner to pay Rs.25,000/- being the amount paid at the time of marriage. The learned Additional Sessions Judge had fixed the monthly maintenance amount payable at Rs.2,200/- and awarded Rs.6,600/- being the maintenance at the time of iddath and also taken 16 as multiplier and assessed Rs.4,22,400/- being the reasonable and fair provision payable but awarded only Rs.3,00,000/- being the amount claimed in the petition as fair and reasonable provision payable to the respondent herein. Aggrieved by the enhancement of fair and reasonable provision and also allowing the claim for return of 5 sovereigns of gold ornaments and the cash of Rs.25,000/-, the petitioner filed this petition under Section 482 of the Code to quash the order to the extent mentioned above. 5. Heard the counsel for the petitioner, the respondent and the learned Public Prosecutor. 6. The counsel for the petitioner submitted that the trial Crl.M.C.No.4031 of 2012 7 court has disbelieved the evidence of Pws 2 and 3 and disallowed the claim for return of gold ornaments and also return of cash. The revisional court went wrong in re appreciating the evidence and granting the relief in part to the respondent herein. Further, it will be seen from Ext.D1 that the petitioner was getting only Rs.3,263/- after all his deductions. So the amount awarded by the Additional Sessions Court is exorbitant and beyond the capacity of the petitioner. Further, the total amount awarded is also exorbitant. The learned counsel relied on the decision reported in **Majeed C.A v. Afira and Another** (2011 (1) KHC 776) for the proposition that when a fair and reasonable compensation is awarded, then no separate amount can be awarded towards maintenance during iddath period. According to PW1, there is none witnessed the payment of the amount either at the time of the marriage or at the time of the petitioner went abroad on the second occasion. But, according to PW3, he had witnessed the same which is not believable. Even the revisonal court did not believe the evidence of PW3 regarding the amount claimed as amount paid by the father of the respondent herein to the petitioner for meeting the expenses to go abroad on the Crl.M.C.No.4031 of 2012 8 second occasion. So, according to the counsel for the petitioner, the court below was not justified in granting the relief to the respondent herein over and above what has been granted by the trial court. 7. On the other hand, the counsel for the first respondent argued that there was no case for the petitioner herein that no gold ornaments were given to the respondent herein at the time of marriage. Further, the evidence of PW2, the goldsmith will go to show that the ornaments were made and given at the the request of the father and mother of the respondent herein in connection with the marriage of the respondent. There is nothing to disbelieve the evidence of PW2 on this aspect. Further, there is no enmity for PW3 to give evidence against the respondent as well. It was admitted by PW1 that the respondent's father was working abroad at the time of their marriage and their social position was better than the position of the petitioner herein. So under the circumstances, there is nothing to disbelieve the evidence of PW1 regarding the gold ornaments and cash given at the time of marriage. Further, Ext.P2 - the salary certificate of the petitioner produced by the respondent herein will go to show that he was getting a take Crl.M.C.No.4031 of 2012 9 home salary of around Rs.7,000/- at the time of issuance of that certificate and he had availed a loan only after the proceedings were initiated and so the Additional Sessions Judge was perfectly justified in quantifying the fair and reasonable provision on a higher rate considering the age of the respondent and remote possibility of getting remarriage etc. So, according to the him, there is nothing to interfere in the matter. 8. Under Section 482 of the Code, powers of this Court is very limited and only if the orders passed by the court below were perverse, this Court should not normally interfere with the finding of the court below. This Court cannot re- appreciate the evidence as well. 9. It is an admitted fact that the petitioner herein married the respondent and they were living together till 7.1.2006 when he pronounced the tipple talaq and dissolved the marriage. It is also an admitted fact that he was working as a Peon in Agricultural Department at the time when the marriage had taken place. The case of the respondent in the petition was that at the time of marriage 25 sovereigns of gold ornaments and Rs.25,000/- cash was given which were appropriated by the Crl.M.C.No.4031 of 2012 10 petitioner herein and his family members and they were not returned to her. The petitioner had no case that no gold ornaments were given to the respondent herein. His case was that only less than 20 sovereigns gold ornaments were given and no cash was paid and at the time when PW1 left the house, she had taken the gold ornaments. It is true that the father of PW1 was not examined. But the respondent herein herself was examined as PW1 and goldsmith, who had made the gold ornaments in connection with her marriage, was examined as PW2 and Ext.P6 series bills given by PW2 were marked on the side of the respondent herein to prove her claim. It is true that Ext.P6 series were not in a prescribed form. But the evidence of PW2 goldsmith will go to show that he is conducting a shop by name C.K. Sons Jewellery and he was not selling jewellery, but used to manufacture jewellery from old jewellery and gold coin. According to him, the father and mother of the respondent herein came and entrusted some gold coins and old gold ornaments for making gold ornaments and accordingly he had given Ext.P6 series bills. It will go to show that about 21 sovereigns of gold ornaments were made by him for and on behalf of the respondent herein in connection Crl.M.C.No.4031 of 2012 11 with her marriage at the request of her parents. Further PW1 had given evidence that some of her relatives have given gold ornaments as gift as well. The petitioner had no case that the respondent's family had no financial background to give gold ornaments. Further, it can take judicial notice in connection with the marriage that there is a custom for giving gold ornaments and cash to the female child by her parents. So, under the circumstances, there is nothing to disbelieve the evidence of PW1 that 25 sovereigns of gold ornaments were given to her and also cash of Rs.25,000/- was also given to the petitioner herein in connection with the marriage. Further, merely because printed bills were not produced by PW2 is not a ground to disbelieve the evidence on this aspect as well. Further, though RW1 had a case that he had raised loan from bank to go abroad, he had not produced any documents to prove this fact. So under the circumstances, possibilities spoken to PW1 that her gold ornaments were appropriated by RW1 for going abroad on two occasions cannot be ruled out and so the trial court was not justified in disallowing the claim of return of five sovereigns of gold ornaments taken at the time of RW1 going abroad and also cash of Rs.25,000/- paid at the time of Crl.M.C.No.4031 of 2012 12 marriage, which the Additional Sessions Judge had rightly allowed the same. If the trial court had mis appreciated the evidence, then the revisionl court is entitled to set aright that irregularity and grant the relief to the respondent herein. So, no illegality has been committed by the First Additional Sessions Judge in allowing the claim of the respondent herein regarding return of five sovereigns of gold ornaments or its value at Rs. 1 lakh and cash of Rs. 25,000/and I do not find any reason to interfere with the direction given by the First Additional Sessions Judge to return 5 sovereigns of gold ornaments or its value Rs.1,00,000/- and also return Rs.25,000/-, the amount paid at the time of marriage. 10. As regards the maintenance amount is concerned, the learned Magistrate has taken Rs.2,000/- as monthly maintenance and awarded Rs.6,000/- as maintenance during the period of iddath and taking 7 as multiplier, awarded Rs.1,68,000/- being the fair and reasonable provision. The revisional court had taken monthly income of the petitioner as Rs.2,200/- and awarded Rs.6,600/- as maintenance during the period of iddath and taking 16 as the multiplier considering the age of the respondent herein namely 33 years, assessed Rs.4,22,400/- as Crl.M.C.No.4031 of 2012 13 fair and reasonable provision but confined the amount to Rs.3,00,000/- claimed in the petition as fair and reasonable provision. 11. The case of the petitioner herein was that he is getting only a take home salary of Rs.3,263/- as per Ext.D1 salary certificate produced by him. So, according to him, he is unable to pay that amount. But it will be seen from Ext.P2 which the respondent had obtained under the provisions of the Right to Information Act which is dated 30.6.2008 that he was getting a gross salary of Rs.9,561/- and after deduction, he is getting a take home salary of Rs.6,891/-. Ext.D1 is the certificate issued on 17.6.2010 much after the divorce. Further, it will be seen from Ext.P7 housing loan account that it was taken by him on 12.6.2009 that is during the pendency of the proceedings. So both the courts below were perfectly justified in not taking the income in Ext.D1 for fixing the monthly income of the petitioner herein. The Additional Sessions Judge had taken the monthly income of the petitioner as per Ext.D1 and assessed the monthly maintenance payable to the petitioner. But the amount payable has to be ascertained as on the date of divorce and not subsequent to the same. So, as on the date of divorce, Crl.M.C.No.4031 of 2012 14 the petitioner herein was getting a take home salary of Rs.6,891/-. It is also brought out in evidence that he had married again and he is having children in that and his mother is also living with him. So considering the circumstances, the amount of Rs.2,000/- fixed by the Magistrate as monthly maintenance appears to be reasonable and the revisional court was not justified in enhancing the same to Rs.2,200/-. Further the trial court has taken 7 as multiplier, but the Additional Sessions Judge had taken multiplier of 16 as though it is a case of awarding compensation under the provisions of the Motor Vehicles Act. So, the method adopted by the First Additional Sessions Judge for fixing the multiplier appears to be on the higher side. At the same time, the multiplier taken by the trial court is also appears to be on the lower side. So taking ten as the multiplier, the respondent herein is entitled to get a fair and reasonable provision of Rs.2,24,000/(2000x12x10) in stead of Rs.3,00,000/- awarded by the First Additional Sessions Court. To that extent, the judgment passed by the court below has to be modified. 12. The contention raised by the counsel for the petitioner relying on the decision reported in **Majeed's** case (cited supra) Crl.M.C.No.4031 of 2012 15 that since fair and reasonable provision has been directed to be paid for the remaining period, the further amount paid as maintenance is unsustainable cannot be accepted in view of the later decision of this Court reported in **Chand Muhammed v. Zeenath and Another** (2011 KHC 786) and **Danial Latifi v. Union of India** (2001 KHC 776) by the Hon'ble Supreme Court. Further if the monthly maintenance payable is taken as Rs.2,000/-, then the amount of maintenance payable during the period of iddath will be Rs.6,000/- and not Rs.6,600/- as enhanced by the Additional Sessions Court. So this amount has to be modified as stated above. 13. So the petition is allowed in part. The direction of the First Additional Sessions Judge issued to the petitioner to return 5 sovereigns of gold ornaments or its value of Rs.1,00,000/and also return Rs.25,000/- as the amount paid at the time of marriage to the respondent herein are hereby confirmed. But the amount of Rs.6,600/- awarded as maintenance during the period of iddath and also Rs.3,00,000/- awarded by the Tribunal as fair and reasonable provision are set aside and the same is modified as follows: The petitioner is directed to pay Rs.6,000/- as maintenance Crl.M.C.No.4031 of 2012 16 during the period of iddath and Rs.2,24,000/- as fair and reasonable provision to the respondent herein. Three months time is granted to the petitioner to pay this amount, if not already paid to the respondent herein. With the above modification of the impugned order passed by the First Additional Sessions Court, the petition is allowed in part. **Sd/K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge