Muhammadali v. Rahiyanath and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 2ND DAY OF APRIL 2014/12TH CHAITHRA, 1936** ## **Crl.MC.No. 4244 of 2013** ## **-----------------------------------** ## **M.C.NO.18/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - 1, PERINTHALMANNANA** ## **C.R.P NO. 41/2011 OF ADDITIONAL DISTRICT AND SESSIONS COURT, MANJERI** ## **------------------** ## **PETITIONER/RESPONDENT:** **----------------------------------------** **MUHAMMADALI, AGED 32 YEARS, S/O.ALIKKOTTIL SAIDALAVI, EDACKAL ALIPARAMBU, VAZHENKADA, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER SIADALAVI.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENTS/PETITIONERS AND STATE:** **--------------------------------------------------------------** **1. RAHIYANATH, AGED 27 YEARS,** **D/O.PADUVAMBADAN MUHAMMED @ BAPPU, VAZHENKADA DESOM, P.O VAZHENKADA, (VIA) THOOTHA, MALAPPURAM DISTRICT - 679 357.** **2. STATE OF KERALA** **REPRESENTED BY THE STATION HOUSE OFFICER, PERINTHALMANNA POLICE STATION, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 31.** **R1 BY ADV. SRI.U.K.DEVIDAS R2 BY PUBLIC PROSECUTOR SRI.N.SURESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-03-2014, THE COURT ON 02-04-2014 PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 4244 of 2013** ## **-----------------------------------** ## **APPENDIX** **---------------** ## **PETITIONER(S)' ANNEXURES:** **ANNEXURE A1: TRUE COPY OF THE MEMORANDUM OF MC 18/2008. ANNEXURE A2: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER/ RESPONDENT IN MC 18/2008. ANNEXURE A3: TRUE COPY OF THE DEPOSITION OF PW1. ANNEXURE A4: TRUE COPY OF THE DEPOSITION OF DW1. ANNEXURE A5: TRUE COPY OF THE ORDER DATED 03.08.2011 IN MC 18/2008. ANNEXURE A6: CERTIFIED COPY OF THE JUDGMENT IN CRL.R.P 41/2011 PETITION FOR STAY.** ## **RESPONDENT(S)' ANNEXURES:** ## **NIL** **//TRUE COPY//** ## **P.S.TO JUDGE.** Msd. K. RAMAKRISHNAN, J. -----------------------------------------------------------------Crl.M.C. No.4244 of 2013 ------------------------------------------------------------------------Dated this the 2[nd] day of April, 2014 ## O R D E R This criminal miscellaneous case is field by the respondent in Crl.R.P.No.41/2011 on the file of the Additional District and Sessions Judge, Manjeri, and counter petitioner in M.C.No.18/2008 of Judicial First Class Magistrate Court-I, Perinthalmanna, to set aside the order in Crl.R.P.No.No.41/2011 of Additional District and Sessions Judge, Manjeri, under Section 482 of the Code of Criminal Procedure (hereinafter called the ‘Code’). 2. The first respondent herein is the divorced wife of the petitioner herein. She filed M.C.18/2008 under Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, claiming return of 25 sovereigns of gold ornaments or its present value 50,000/- cash given at the₹ time of marriage, three lakhs as reasonable and fair provision and 15,000/- as maintenance during iddath. ₹ Crl.M.C. No.4244 of 2013 2 3. It is alleged in the petition that, the petitioner has no independent income to maintain herself and she is having two children to look after, of which one is the child born in the wedlock of the petitioner with the respondent. Further, the petitioner herein is having good income and claimed the above reliefs. Respondent in the main case, who is the petitioner herein, filed counter denying the allegations in the petition. He denied the allegation that at the time of marriage, 30 sovereigns of gold ornaments and 50,000/- cash was given and 25₹ sovereigns of gold ornaments and 50,000/- cash were appropriated by the respondent, who is the petitioner herein. In fact, while he was working abroad, she gave birth to the child in the illegal intimacy with some person and that led to the divorce. She has not observed iddath. She is not entitled to get any fair and reasonable provision from the petitioner. Further, the income said to have been fetched for the petitioner herein from his employment and Crl.M.C. No.4244 of 2013 3 landed properties, as claimed by the petitioner in the lower court, who is the first respondent herein, is not correct. They were exorbitantly shown. So the petitioner in the lower court is not entitled to get any relief claimed in the petition. The first respondent herein was examined as PW1 and two witnesses were examined as PWs 2 and 3 on the side of the petitioner in the lower court and Ext.P1 was marked on her side. The power of attorney holder and the father of the petitioner herein was examined as DW1. After considering the evidence on record, the learned magistrate found that the first respondent herein has failed to prove the appropriation of 25.5 sovereigns of gold ornaments and ₹ 50,000/- cash, as claimed by her and ExtP1 cannot be relied on for the purpose of fastening the liability on the petitioner herein and found that, she is not entitled to get those items and rejected that claim. But the learned magistrate found that, first respondent herein is entitled to get maintenance at the rate of 1,500/- for three months₹ Crl.M.C. No.4244 of 2013 4 namely, 4,500/-, during the iddath period and taking 120₹ months monthly maintenance awarded 1,80,000/- towards₹ reasonable and fair provision and allowed the application to that extent. 4. Dissatisfied with the quantum of maintenance awarded and also the rejection of the claim of return of gold ornaments and cash, the first respondent herein preferred Crl.R.P.No.41/2011 before the Sessions Court, Manjeri, and by Annexure-A6 impugned judgment, the learned Additional Sessions Judge, Manjeri, allowed the revision in part and enhanced the fair and reasonable provision to 2,40,000/-, taking 2,000/- as monthly income₹ ₹ and 120 months multiplier and also relying on Ext.P1, directed the petitioner herein to return 22.5 sovereigns of gold ornaments or its amount equivalent to its present market value and 50,000/-, but rejected the claim of₹ maintenance during the iddath period, relying on the decision reported in **Majeed v. Afria [2011(1) KLT 199].** Crl.M.C. No.4244 of 2013 5 5. Aggrieved by the enhancement of the quantum of fair and reasonable provision and direction to return the gold ornaments or its present value and ₹ 50,000/- cash, the petitioner has filed this petition to set aside the order of the revisional court to the extent mentioned above. 6. Heard the counsel for the petitioner, first respondent, and learned Public Prosecutor. 7. The counsel for the petitioner submitted that, the revisional court has gone beyond its power in reversing the finding of the trial court, which had considered the question, on the basis of evidence and the revisional court was not justified in relying on Ext.P1 agreement, in which the petitioner was not a party and it was executed between the fathers of both the petitioner and the first respondent and it is not binding on the petitioner and as such, the revisional court was not justified in relying on Ext.P1, eschewing the evidence adduced on the side of the first Crl.M.C. No.4244 of 2013 6 respondent in the lower court, regarding their capacity to give gold ornaments and cash etc., Further, the revisional court was not justified in enhancing the fair and reasonable provision as well. So he wanted the interference of this court in the matter to the above extent. 8. On the other hand, the leaned counsel for the first respondent argued that, being the revisional court, that court is entitled to go into the question of irregularity and impropriety in appreciating the evidence by the court below and the revisional court has correctly appreciated the evidence and rightly set aside the finding of the trial court. Further, the petitioner did not go to the witness box and only his father, as his power of attorney holder went to the witness box to give evidence as DW1. He had no case that, no gold ornaments were given to the first respondent at the time of marriage, but his case was that, he was not aware of the quantity of gold ornaments given and what happened to the same. He had admitted his signature in Ext.P1 and also Crl.M.C. No.4244 of 2013 7 the circumstances in which he had to put his signature as well. He had also admitted that, he had put the signature in the presence of one of the witnesses and PWs 2 and 3 had categorically stated that Ext.P1 was prepared after discussion and it was signed by the parties and the witnesses after understanding the contents of the same. So, the revisional court was perfectly justified in correcting the mistake of mis-appreciation of evidence committed by the trial court and right in relying on Ext.P1 and granting the relief to the respondent herein. 9. It is settled law that, this court under Section 482 of the Code of Criminal Procedure has only limited power in re-appreciating the findings entered into by the courts below and only, if the findings were perverse and against law, then only this court can interfere with the orders passed by the courts below. 10. It is an admitted fact that, the petitioner married the first respondent and one child was born to them Crl.M.C. No.4244 of 2013 8 in the wedlock. It is also an admitted fact that, the respondent had given birth to another child in her extra marital relationship, with somebody else, when the petitioner was not in India. It is also in away admitted that, the divorce was affected on account of this fact. It is also in away admitted by PW1 and DW1 that the financial capacity of both parties was not that good at the time of marriage. But at the same time, though it was denied in the counter statement by the petitioner that, the respondent herein was not given 30 sovereigns of gold ornaments and 50,000/-,₹ cash, they have no case that, no gold ornaments were given. Petitioner did not go to the witness box as well. Further PW1 had given evidence regarding this aspect. Father of PW1 is no more now. It is also in away admitted that, there was a discussion regarding the extra marital relationship and the child born in that relationship for the respondent herein, between the parents of both parties and there was intervention of mediators as well in this regard. DW1 had Crl.M.C. No.4244 of 2013 9 in away admitted that, as requested by the Panchayath President, he put his signature in a stamped paper, as a result of the understanding arrived at between them in the discussion. Further, DW1 had stated in his evidence that, he did not know how much sovereigns of gold ornaments were given to PW1 at the time of marriage. He had also stated that, he did not know as to what happened to the same as well. So under such circumstances, it can only be presumed that, gold ornaments were given to the respondent at the time of marriage and according to PW1 those ornaments were appropriated by her husband/PW1 and their family members. She had also narrated the circumstances, during which these gold ornaments were appropriated by him. It is also admitted that, after marriage only the petitioner got employment abroad. 11. It is an admitted fact that nowadays scenario in reality even persons with less financial background were providing gold ornaments to their daughters at the time of Crl.M.C. No.4244 of 2013 10 marriage and that has become part of custom in all societies. It is very difficulty to prove by documentary evidence, as to how much gold ornaments was purchased and given at the time of marriage. So under such circumstances, Ext.P1 will have to be considered, as a piece of evidence, regarding this aspect. PWs 2 and 3 have given evidence that, when the parents of the petitioner and the first respondent have decided to dissolve the marriage, they have discussed about the modalities and the liabilities as well and it was under such circumstances that Ext.P1 was executed and also admitted in Ext.P1 that 22.5 sovereigns of gold ornaments and 50,000/- cash given to PW1 at the₹ time of marriage, were agreed to be returned to the respondent, in the event of divorce. The petitioner did not go to the witness box to say that, his father was not authorised to participate in the discussion and agree for a settlement. PW1 had stated that, her father had participated on her behalf. Further it was an admitted fact Crl.M.C. No.4244 of 2013 11 that, the petitioner was not in India at that time. There is nothing to disbelieve the evidence of PWs 2 and 3 in respect of execution of Ext.P1 document by DW1 and father of the respondent herein. So, if the execution of the document is proved and the discussions were also mentioned by PWs 2 and 3, which were incorporated in Ext.P1, then it can be presumed that, not only the execution of document but also the contents of the document were proved by these witnesses. 12. The trial court also come to the conclusion that Ext.P1 is a document executed between DW1 and the father of the respondent herein. Since the petitioner is not a party to the document, it is not binding on him. There is no dispute regarding that proposition. But at the same time, when a dispute arose in respect of the quantity of gold ornaments given and amount of cash provided at the time of marriage, when there is an admission in the document from the side of the father of the petitioner regarding same and Crl.M.C. No.4244 of 2013 12 the liability to return the same, then it can be used as a piece of evidence to prove that fact and once that fact is proved, then if the petitioner has not returned the same, he is bound to return same at the time of divorce, as those articles will be in the possession of the petitioner, as husband of the respondent in the capacity of a trustee. Further it is settled law that, mis-appreciation of evidence by the court below in respect of admissibility of a document is a question of law, which can be corrected by the revisional court, invoking the revisional power. So under the circumstances, the Sessions Judge was perfectly justified in relying on Ext.P1 and making the petitioner liable to return 50,000/- and 22.5 sovereigns of gold₹ ornaments or its present value to the petitioner, which he is liable to return under Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, as the articles given to the respondent at the time of marriage, either by her parents or her relatives, at the time of divorce. So, there Crl.M.C. No.4244 of 2013 13 is no illegality committed by the Sessions Judge, in reversing the finding of the court below, on this aspect and making the petitioner liable to pay the same. 13. As regards the maintenance amount is concerned, considering the status of both parties, court below was perfectly justified in re-fixing the fair and reasonable provision payable to the petitioner also by increasing the monthly maintenance to 2,000/- and taking₹ 120 months as multiplier to capitalise this amount to assess the fair and reasonable provision payable to the respondent by the petitioner. Further the amount awarded cannot be said to be excessive under the circumstances as well. So there is no illegality committed by the Sessions Judge, in passing the order challenged, which requires interference at the hands of this court, invoking the power under Section 482 of the ‘Code’ and the application lacks merits and it is liable to be dismissed. In the result, the petition is dismissed. The order Crl.M.C. No.4244 of 2013 14 of the Additional Sessions Judge Manjeri in Crl.R.P.No.41/2011 is hereby confirmed. Office is directed to communicate this order to the court below and refer the reasons to the court below at the earliest. Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss