Mohammed Basheer @ Muthu v. Samiya and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944 ``` ## **`RPFC NO. 431 OF 2018`** ``` AGAINST THE ORDER/JUDGMENT IN MC 167/2014 OF FAMILY COURT, ``` ## **`MALAPPURAM`** ## **`REVISION PETITIONER/RESPONDENT:`** ``` MOHAMMED BASHEER @ MUTHU AGED 42 YEARS S/O. KADALAYI KUTTIHASSAN, KKCM THANGAL ROAD, VAZHIPPARA, ANGADIPPURAM, CHERAKKAPARAMBA, PERINTHALMANN,MALAPPURAM DISTRICT. ``` ``` BY ADVS. SRI.P.SAMSUDIN SRI.JITHIN LUKOSE ``` ## **`RESPONDENTS/PETITIONERS:`** |**`1`**|**`SAMIYA, AGED 32 YEARS`**| |---|---| ||**`D/O. MOHAMMED HANEEFA, MANHAMBRA HOUSE,`**| ||**`NEAR THEKKINKODE JUMA MASJID,`**| ||**`PERINTHALAMANNA-679 322, MALAPPURAM DISTRICT.`**| |**`2`**|**`KADEEJA NEHA`**| ||**`15 YEARS, D/O. MOHAMED BASHEER, MANHAMBRA HOUSE,`**| ||**`NEAR THEKKINKODE JUMA MASJID, PERINTHALAMANNA-679 322,`**| ||**`MALAPPURAM DISTRICT.`**| |**`3`**|**`AYISHA NADA`**| ||**`8 YEARS, D/O. MOHAMMED BASHEER, MANHAMBRA HOUSE,`**| ||**`NEAR THEKKINKODE JUMA MASJID,`**| ||**`PERINTHALAMANNA-679 322, MALAPPURAM DISTRICT.`**| ||**`(MINORS RESPONDENTS ARE REPRESENTED BY MOTHER 1ST`**| ||**`RESPONDENT)`**| ||**`BY ADVS.`**| ||**`SRI.K.JAYESH MOHANKUMAR`**| ||**`SRI.K.JAYESH MOHANKUMAR`**| ||**`SRI.PUSHPARAJAN KODOTH`**| ||**`SRI.T.SETHUMADHAVAN SR.`**| ||**`SMT.VANDANA MENON`**| ``` THIS REV.PETITION (FAMILY COURT) HAVING COME UP FOR ADMISSION ``` ``` ON 30.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RPFC NO. 431 OF 2018 ``` ``` 2 ``` ## **O R D E R** This is a revision petition filed under Section 397 and 401 of Cr.P.C., challenging order in M.C.No.167/2014 on the file of the Family Court, Malappuram dated 22.07.2016. 2. Heard the learned counsel for the revision petitioner as well as the learned counsel appearing for the respondents, who are the petitioners before the Family Court. 3. In this matter, the wife and minor children aged 11 years and 4 years (during 2014) filed petition under Section 125 of Cr.P.C., seeking maintenance on the ground that they do not have any job or sufficient income to maintain themselves and the husband, the revision petitioner herein, who had been working abroad, has sufficient income to maintain them. ``` RPFC NO. 431 OF 2018 ``` ``` 3 ``` 4. After filing objection and recording evidence, along with connected O.P.258/2014, as per common order dated 22.07.2016, the Family Court granted Rs.3,000/- to the first petitioner, Rs.2,000/- to the second petitioner and Rs.1,500/- to the third petitioner as monthly maintenance. 5. It is submitted by the learned counsel for the revision petitioner that the revision petitioner, who was working abroad lost his job and he underwent surgery and at present he has no income. Those aspects not substantiated by evidence. 6. It is submitted by the learned counsel for the respondents that the wife and children are trailing to survive since they are not even getting the meager sum granted by the Family Court, because of pendancy of this revision petition and the stay order in force. ``` RPFC NO. 431 OF 2018 ``` ``` 4 ``` 7. It is the settled law that power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397 is not wide and exhaustive to re-appreciate the evidence to have a contra finding. In the decision reported in **[(1999) 2 SCC 452 : 1999 SCC (Cri) 275], State of Kerala v. Puttumana Illath Jathavedan Namboodiri,** the Apex Court, while considering the scope of the revisional jurisdiction of the High Court, laid down the following principles (SCC pp. 454-55, para 5): “5. …... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second ``` RPFC NO. 431 OF 2018 ``` ``` 5 ``` appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ...” 8. In another decision reported in **[(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke,** the Apex Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly ``` RPFC NO. 431 OF 2018 ``` ``` 6 ``` - unreasonable or there is non consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in para.14 (SCC p.135) : “14. …... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaring unreasonable or where the decision is based on no material or where the material facts are ``` RPFC NO. 431 OF 2018 ``` ``` 7 ``` wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.” 9. The said ratio has been followed in a latest decision of the Supreme Court reported in **[(2018) 8 SCC 165], Kishan Rao v. Shankargouda** . Thus the law is clear on the point that the whole purpose of the revisional jurisdiction is to preserve power in the court to do justice in accordance with the principles of criminal jurisprudence and, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence had already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the court which would otherwise tantamount to gross miscarriage of justice. To put it otherwise, if there is non-consideration of any relevant materials or ``` RPFC NO. 431 OF 2018 ``` ``` 8 ``` fundamental violation of the principle of law, then only the power of revision would be made available. 10. I have perused the order impugned and the lower court records within the limited power of revision available to this court. It is noticed that the Family Court, relying on the evidence of PW1, found that the respondent, who was aged 38 years during 2014, is capable of maintaining the respondents and was having sufficient income, after holding that the wife and children have no income of their own for survival, granted meager amount as maintenance, as per the impugned order, as discussed. Going by the order, it has to be held that only nominal amount was granted by the Family Court, on finding entitlement. Therefore, there is no illegality in the matter of finding entitlement of maintenance as well as the quantum. In view of the matter, the order ``` 9 ``` ## **`RPFC NO. 431 OF 2018`** impugned does not require any interference. In the result, this revision petition is found to be devoid of any merits and is accordingly dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** nkr