Ramla v. Basheer, Salim and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 3249 of 2010() -----------------------------CRA.24/2010 OF THE ADDL. SESSIONS JUDGE (ADHOC-II), ERNAKULAM. MC.101/2009 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER: APPELLANT/PETITIONER ----------------------------------------- RAMLA, AGED 32 YEARS, D/O. SAINUDHEEN, NANGELI HOUSE, SREEMOOLANAGARAM. BY ADV. SRI.V.M.ALI RESPONDENTS: RESPONDENTS/STATE/RESPONDENT ------------------------------------------- 1. K.P.BASHEER, S/O. PAREETH, AGED 39 YRS, KANNAMKUDY HOUSE, VENGOLA P.O., PERUMBAVOOR.- 683554 2. SALIM, S/O. PAREETH, AGED 40 YRS, KANNAMKUDY HOUSE, VENGOLA P.O., PERUMBAVOOR.- 683554 3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R3 BY PUBLIC PROSECUTOR SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.11.2010, THE COURT ON 6.12.2010, PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.R.P. No. 3249 of 2010** **----------------------------------------** Dated the 6[th] day of December, 2010 ## **ORDER** The revision petitioner, who is the former wife of the first respondent, approached the court of Judicial First Class Magistrate, Perumbavoor by filing a petition under section 12 of the the Protection of Woman from Domestic Violence Act, seeking the custody of the children and release of the gold ornaments and money and also for compensation. In the trial court, the revision petitioner herself was examined as PW1, no other documentary evidence or materials were produced. From the side of the husband, husband himself was examined as RW1 and produced Exts.D1 to D3 documents. Finally, by order dated 26.11.2009 in M.C.No.101/2009, the learned Magistrate dismissed the petition. 2. Aggrieved by the order of the learned Magistrate in dismissing her petition, the revision petitioner had preferred an appeal and by judgment dated 3.7.2010 in Crl.A.No.24/2010, the court of Additional Sessions Judge (Adhoc-II), Ernakulam dismissed the appeal. It is against the CRLR.P No.3249/10 **:-2-:** above judgments of the courts below, the wife, who is the aggrieved person approached this court by preferring this Crl.R.P. 3. I have heard Sri V.M.Ali, the learned counsel appearing for the revision petitioner and I have gone through the judgments of the courts below. 4. The short facts leading to the impugned judgments of the court below are as follows: The marriage between the revision petitioner and the first respondent was solemnized on 23.4.95 and thereafter they were residing in the house of the first respondent at Vengola and out of that wedlock, four children were born. Second respondent is the brother of the first respondent. According to the aggrieved person, she had obtained gold ornaments weighing 20 sovereigns and a sum of Rs,75,000/- as presentation at the time of marriage and the said gold ornaments and cash were entrusted with the first respondent, her husband. It is the further case of the revision petitioner that after the marriage, the first respondent had gone abroad and CRLR.P No.3249/10 **:-3-:** during that period, the revision petitioner and the children were residing in the house of the first respondent at Vengola. It is also alleged that another brother of the first respondent had made sexual advances towards the revision petitioner and she went to the Mosque at Ervadi in the month of September,2007, with the consent of the first respondent, her husband. According to the petitioner, the respondents raised false allegations against her stating that she had eloped with another man and the first respondent pronounced Talaq on the revision petitioner. At the time of filing petition before the court, she is residing in her parental house. It is also the allegation that the 2[nd] respondent had taken the daughters of the petitioner from her parental home. It is the further contention of the petitioner that though the petitioner had demanded back the gold ornaments and the cash, the first respondent refused to give back those items. So, in the petition filed before the trial court, she sought the custody of the children and also for an order to get back the gold ornaments and cash and also to order CRLR.P No.3249/10 **:-4-:** compensation of Rs.5 lakhs for the mental harassment. 5. The 2[nd] respondent in the proceedings filed a counter statement stating that the 2[nd] respondent is an unnecessary party to the petition and also admitted that the revision petitioner is the wife of the first respondent and he is the elder brother of the first respondent. He has also stated that in the said wedlock, there are four female children, all are below the age of 9 years. It is the specific contention of the 2[nd] respondent that the petitioner was leading an immoral life when her husband had gone abroad and according him, the petitioner had eloped with one person namely, E.A.Yousef who is working as a teacher in the Madrassa which is situated near the house of the first respondent. According to the 2[nd] respondent, the aggrieved person had locked the four children in a room and eloped with the said Yousef. It is also stated that thereafter as per SRO Annamandada, on 14.9.2007, they got married and both of them are living as man and wife. Thus according to the 2[nd] respondent, the first Respondent reached his native place CRLR.P No.3249/10 **:-5-:** on hearing the news on 16.9.2007 and thereafter he filed a complaint before the police, based upon which crime No.1414/2007 of the Perubmavoor police station was registered for man missing. Subsequently, the police had arrested the petitioner and produced her before the court and the court set her at liberty. It is also specifically contended that when the petitioner eloped with the said Yousef, she had taken her gold ornaments and savings. Thus, according to the 2[nd] respondent, the first respondent pronounced Talaq on the petitioner. 6. The trial court as well as the appellate court, after considering the entire facts and evidence involved in the case, was of the opinion that the revision petitioner is not entitled to get any of the reliefs sought for by her. 7. I have heard the learned counsel for the petitioner and carefully considered his arguments. 8. According to the learned counsel, though Talaq was pronounced on the petitioner, she is entitled to get maintenance being a divorced wife. It is also the contention of the learned counsel that the orders of the CRLR.P No.3249/10 **:-6-:** courts below declining the reliefs sought by the petitioner for return of gold ornaments and cash, is illegal and according to the counsel, such relief cannot be refused because of non production of documentary evidence. It is also the submission of the learned counsel that as the respondents have miserably failed to deny the allegations contained in the petition, the courts below ought to have drawn an adverse inference against the respondents and treat the same as their admission. The learned counsel for the revision petitioner challenged the findings of the courts below on the strength of the decisions of this Court, i.e., **Sajeev Kumar v. Dhanya** (2008 (1) KLT 978); **Bexy Michael v. A.J.Michael** (2010 (4) KHC 376(DB) and **Louiz v. Augustin** (2004 (3) KLT 71). 9. I am unable to sustain the above contentions. The learned counsel miserably failed to point out any miscarriage of justice or violation of law or procedure to interfere with the concurrent findings arrived on by the trial court as well as the appellate court. Going by the findings and the evidence and materials on record, it can CRLR.P No.3249/10 **:-7-:** be seen that the antecedents of the revision petitioner is not so good and she was leading an immoral life when the first Respondent, her husband was abroad. Exts.D1 to D3 documents would show that the petitioner has eloped along with one Yousef. It is also the specific contention of the 2[nd] respondent that the revision petitioner had eloped with the said Yousef and their marriage was registered in the office of the SRO at Annamanada on 14.9.2007. It is thereafter the first respondent returned from Gulf country hearing the news regarding the elopement of the revision petitioner along with Yousef and on his arrival he lodged the complaint before the police, based upon which crime No.1414/2007 was registered in the Perumbavoor police station and subsequently the revision petitioner was arrested and produced before the court but the court allowed her to go according to her wishes. Both the courts below have concurrently found that the revision petitioner eloped with the said person, according to her whims and fancies, that too, after locking the children in a room and after elopement, she had informed the CRLR.P No.3249/10 **:-8-:** respondents regarding the confinement of the children in the room. So I find no reason to interfere with the findings of the courts below that the revision petitioner has no interest in her children, who are all below the age of nine years. 10. Though the first respondent had pronounced Talaq on the revision petitioner, it has also come out in evidence that the revision petitioner and the said Yousef were residing as man and wife. Under the said circumstances, the contention raised by the revision petitioner on the basis of the decision reported in **Sajeev Kumar v. Dhanya** (2008(1)KLT 978) that the revision petitioner is entitled to get maintenance by the operation of Explanation (b) to Section 125 Cr.P.C, is not sustainable in the present case. First of all, this is an application filed under section 12 of the Protection of Women from Domestic Violence Act and there is no prayer under section 125 of Cr.P.C. Even though a divorced wife is entitled to get maintenance, such right will lose while she is getting married again or living as CRLR.P No.3249/10 **:-9-:** man and wife with another person as his wife. In fact, the petitioner approached the trial court by invoking Section 12 of the Protection of women from Domestic Violence Act, which is enacted for protection of innocent and dutiful wife from violence and harassment and to secure the interest of such women and the petitioner herself proved that she is undeserved to get any of such welfare measures contemplated by the Act. 11. Regarding the prayer with respect to the return of gold ornaments and cash, the trial court as well as the appellate court was of opinion that there is no evidence to show that the petitioner had obtained those items and the same were entrusted with the first respondent. Both the courts below, after considering the evidence and materials on record, found that there was no prayer to accept the contention of the revision petitioner that she had obtained the gold ornaments and cash at the time of marriage. The petitioner has not examined any other witness to substantiate any other claim. It is also relevant to note that there is also no evidence to show that the CRLR.P No.3249/10 **:-10-:** petitioner had entrusted the gold ornaments and cash with the first respondent. It is true that this court, in the decision reported in **Bexy Michael v. A.J.Michael** (2010 (4) KHC 376(DB), held that a petition cannot be dismissed merely because no document was produced. It would be unreasonable for a court to insist for documentary evidence regarding ornaments and money that had changed hands at the time of marriage. The facts and circumstances involved in the present case are entirely different from the facts and circumstances involved in the above reported case. Here, it is a case where the husband of the revision petitioner was in gulf country connected with his job. I am not in a position to believe that he had taken all the gold ornaments and cash to his place of employment. On the other hand, it is pertinent to note that the revision petitioner had eloped along with his paramour while her husband was abroad and the facts and circumstances justified the explanation given by the respondents that when the revision petitioner eloped with the said Yousef, she had taken the gold ornaments. CRLR.P No.3249/10 **:-11-:** Therefore, under the above particular facts and circumstances, the burden is on the revision petitioner to substantiate that she had obtained the gold ornaments and cash at the time of marriage and the same was entrusted with the first respondent. The revision petitioner has miserably failed to discharge the above duty and liability. Therefore, the finding of the courts below that the revision petitioner is not entitled to get the relief sought connected with the gold ornaments and cash, is absolutely correct and perfect and no interference is warranted. According to me, the dictum laid down in **Louiz v. Augustin** (2004(3)KLT 71) is not applicable in the present case wherein the proceedings initiated herein is under section 12 of the Domestic Violence Act and not a suit as contemplated by the provisions of the CPC. More over, from the counter affidavit filed by the 2[nd] respondent and the evidence and materials produced by the respondents, it would clearly establish that the respondents have specifically denied the averments contained in the petition. CRLR.P No.3249/10 **:-12-:** 12. According to me, the trial court as well as the appellate court are correct in not awarding compensation to the revision petitioner as the revision petitioner has miserably failed to establish any incident of mental or physical harassment at the instance of the respondents. It is pertinent to note that as per the findings of the court below, it is disclosed from the records and evidence that the four female children born out of the wedlock of the revision petitioner and the first respondent, were locked in a room when she eloped with her paramour and it was the 2[nd] respondent who saved the children from there and took care of them. Therefore, the courts below are absolutely right in rejecting her claim for compensation. Therefore, the revision petitioner is not entitled to get any benefit as claimed by her. In the light of the above facts and circumstances and discussion, the trial court and the appellate court are perfectly legal and correct in declining the request and the relief sought in a petition field under section 12 of the Protection of Women from Domestic Violence Act by the CRLR.P No.3249/10 **:-13-:** revision petitioner and there is no merit in the Crl.Revision petition and accordingly, the same is dismissed. **V.K.MOHANAN, JUDGE** kvm/-