Saidu, s/o Abdullla, Kammukkanatte Purakkal, Puthangadi Kadappuram Pachattiri Amsaom, Paravanna Desom, Tirur Taluk, Malappuram v Sabira d/o Rayin, Puzhakalath, Vallikunnu Amsaom, Kadalundi Nagaram, Tirurangadi Taluk, Malappuram; State of Kerala through Public Prosecutor

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: ## THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 19TH DAY OF JULY 2013/28TH ASHADHA, 1935 ## Crl.MC.No. 3423 of 2010 ## ---------------------------- AGAINST THE JUDGMENT IN CRRP 6/2009 of ADDITIONAL SESSIONS COURT (ADHOC)-i, MANJERI ## AGAINST THE ORDER IN MC 44/2007 of JUDICIAL FIRST CLASS MAGISTRATE-II, PARAPPANANGADI ## PETITIONER: SAIDU, S/O.ABDULLA, KAMMUKKANTE PURAKKAL, PUTHANGADI KADAPPURAM PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK MALAPPURAM. BY ADVS.SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA SRI.G.SUDHEER (THURAVOOR) SRI.RAJAN VISHNURAJ ## RESPONDENTS: ## 1. SABIRA, D/O.RAYIN, ## PUZHAKALAKATH, VALLIKUNNU AMSOM, KADALUNDI NAGARAM TIRURANGADI TALUK, MALAPPURAM, PIN-676101. ## 2. STATE OF KERALA, ## REP. THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R2 BY ADV. PUBLIC PROSECUTOR MR. PADMALAYAN R1 BY ADV. SRI.K.T.SHYAMKUMAR AND ADV. SRI.HARISH R. MENON THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-07-2013, THE COURT ON 19.7.2013 PASSED THE FOLLOWING: ## ANNEXURES: ANNEXURE 1: A CERTIFIEED COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND 1ST RESPONDENT AT THE TIME OF DIVORCE. KS. ## TRUE COPY P.S. TO JUDGE ## **K.RAMAKRISHNAN, J.** ## **======================** ## **CRL.M.C.NO. 3423 OF 2010** ## **======================= Dated this the 19[th] day of July 2013 ORDER** The above petition was filed by the Revision Petitioner in Crl.R.P.No.6 of 2009 on the file of the Additional Sessions Court(Adhoc-I), Manjeri and counter petitioner in M.C.No.44 of 2007 on the file of the Court of Judicial First Class Magistrate-II, Parappanangadi to quash the orders passed by the Additional Sessions Judge and the Judicial First Class Magistrate in the above proceedings under Section 482 of the Code of Criminal Procedure. 2. The above proceedings were initiated on the basis of the petition filed by the first respondent herein under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as 'the Act'). Crl.M.C.No.3423 of 2010 ## **:: 2 ::** It is alleged in the petition that the petitioner in the above proceedings was given in marriage to the counter petitioner in the lower court as per Muslim custom on 28.04.2002. After marriage, they resided together as husband and wife and a female child was born to them in the wedlock. At the time of marriage, 26 ½ sovereigns of gold ornaments and Rs.1,00,000/- were given to the counter petitioner as trust money and this amount was entrusted 15 days prior to the marriage as he wanted to meet certain urgent needs. After the marriage, the gold ornaments were given to his sister Ayisha Beevi. They started ill-treated her both physically and mentally. Since it was revealed that it was not possible for them to live together, in the mediation held, he had agreed to return the trust money entrusted to him and also the gold ornaments given to her which were entrusted to him and she was made to sign an agreement threatening that unless she signed the same, she would not get back gold ornaments and the amount and so she had signed the Crl.M.C.No.3423 of 2010 ## **:: 3 ::** documents. Thereafter, she filed M.C.No.625/2005 on the file of the Family Court, Manjeri wherein the counter petitioner herein contended that she is a divorced wife and she is not entitled to get maintenance and the Family Court accepted his contention and denied maintenance to her and granted maintenance to the minor child alone. Now she is the divorced wife of the counter petitioner. No amount was paid for maintenance during the period of iddat and no fair and reasonable provision was provided at the time of divorce. He is conducting a hotel and getting not less than Rs.10,000/-per month. He is also having landed properties and getting good income from the properties. She estimates a sum of Rs.6,000/- for maintenance during the period of iddat and Rs.2 lakhs as mattah (fair and reasonable provision). The respondent is liable to pay these amounts. Hence the petition. 3. The counter petitioner appeared and filed counter affidavit contending as follows: Crl.M.C.No.3423 of 2010 ## **:: 4 ::** He had admitted that the petitioner was his wife, but denied the allegation that at the time of marriage 26½ sovereigns of gold ornaments were given to the petitioner and Rs.1,00,000/- was given to him 15 days prior to the marriage as trust money. He had also denied the allegation that the gold ornaments were entrusted to his sister Ayisha Beevi and he along with his sister and parents ill-treated her. The allegation that due to the intervention of mediators, he had returned the gold ornaments and Rs.1,00,000/- entrusted to him as trust money and at that time she was forced to sign in an agreement written and brought by the counter petitioner. In fact, the petitioner was finding fault with the counter petitioner without any reason and she was of quarrel some nature and it was due to the unbearable character of the petitioner and quarrels some nature, that they have decided to live separately and divorce agreement was executed on 7.2.2005 in the presence of mediators Puzhakkalath Muhammed and K.P. Kutttiamu. An amount Crl.M.C.No.3423 of 2010 ## **:: 5 ::** of Rs.1,00,000/-- was paid towards iddat and mattah expenses. An agreement was executed in this regard. Suppressing these facts, she filed petition before the Family Court for maintenance for herself and her child and the Family Court on consideration of evidence that she is a divorced wife and she had received the amounts payable as expenses during iddat and mattah expenses declined maintenance to her and granted maintenance to the child alone. He had already discharged his liability towards the petitioner. He is not liable to pay any amount to the petitioner as claimed in the petition. So he prayed for dismissal of the application. 4. The petitioner was examined as PW1 and the counter petitioner was examined as CPW1 and Exts.D1 to D4 were marked on his side. After considering the evidence on record, the learned Magistrate found that Ext.D1 could be treated only as an agreement acknowledging partial discharge of liability regarding the gold ornaments and amount paid as trust money and it Crl.M.C.No.3423 of 2010 ## **:: 6 ::** cannot be treated as an agreement regarding payment of maintenance during iddat and mattah expenses as claimed by the counter petitioner and directed the counter petitioner to pay an amount of Rs.4500/- towards maintenance during iddat and Rs.90,000/- as fair and reasonable provision and allowed the petition accordingly. 5. Dis-satisfied with the orders of the learned Magistrate, the petitioner herein filed revision petition before the Sessions Court as Crl.R.P.No.6/2009 and the same was made over to the Additional Sessions Court (Adhoc-I), Manjeri for disposal and the learned Additional Sessions Judge by the impugned order confirmed the order of the Magistrate and dismissed the revision petition. Dissatisfied with the same, the petitioner had come to this Court to quash the orders by filing this application. 6. Heard the counsel on both sides and perused the records. Crl.M.C.No.3423 of 2010 **:: 7 ::** 7. Counsel for the petitioner submitted that the respondent No.1 had admitted Ext.D1 agreement which contains a clause that amount payable during the iddat period and mattah expenses amount payable to the first respondent herein were paid and this fact was accepted by the Family Court in Ext.D2 judgment in M.C.No.625/2005 filed by the first respondent herein claiming maintenance and one of the witnesses to Ext.D1 was examined before that court. Once the petitioner herein had proved that he had discharged his liabilities in the event of divorce to his divorced wife, the burden is on the petitioner in the lower court to prove the circumstances under which Ext.D1 was executed. Further, once he had discharged his liabilities by executing a document, then the petitioner in the lower court is estopped from claiming the amounts again under Section 3 of the Act. He relied on the decision reported in **Moideen v. Safiya[1993(2)KLT** **322]** in support of his case. So according to him, the lower courts were not justified in awarding the amount Crl.M.C.No.3423 of 2010 ## **:: 8 ::** claimed by the petitioner in the proceedings in the lower court and he prayed for allowing the application. 8. On the other hand, counsel for the first respondent argued that both the courts below have concurrently found that Ext.D1 cannot be treated as agreement whereby the petitioner had received the amount payable during the period of iddat and mattah expenses as claimed by the petitioner herein and it can only be treated as document to prove discharge of gold ornaments given to the first respondent at the time of marriage entrusted to the petitioner herein and the amount of Rs.1,00,000/- paid as trust money in connection with the marriage. So invoking the power under Section 482 of the Code of Criminal Procedure, this Court cannot re-appreciate the evidence and substitute its finding. Further, the evidence will go to show that Ext.D1 cannot be treated as an agreement whereby she had acknowledged the receipt of the amounts due to her on Thalak as claimed by the petitioner herein. So, according Crl.M.C.No.3423 of 2010 ## **:: 9 ::** to him, there is no merit in the petition. He prayed for dismissal of the application. 9. It is true in the decision reported in **Moideen v. Safiya[1993(2)KLT 322 ]** it has been held that if the dissolution of marriage was effected by executing a mutually agreed documents whereby the wife had received certain amount and relinquished her right to get future maintenance, Section 3 of the Act does not transgress to the terms of any agreement between the parties and she is not entitled to any further provision as envisaged in Section 3 of the Act. In that case a divorce agreement was executed between a Muslim wife and husband whereby an amount of Rs.11,000/- was paid towards future maintenance and maintenance towards iddat period and that was accepted by the wife in full and final settlement of all claims in respect of the divorce effected as per the agreement and this fact was admitted by her as well. But in this case though PW1 had admitted her signature in Ext.D1 document, the alleged agreement Crl.M.C.No.3423 of 2010 ## **:: 10 ::** executed between the petitioner and the counter petitioner, she had denied having received the amount towards iddat maintenance and mattah expenses as mentioned therein. So, it cannot be said that she had admitted the contents of the document and as such the dictum laid down in the above decision is not applicable to the facts of this case. 10. Further in the decision reported in **Crl.M.C.No.967 of 2009** [ **Shihabudheen @Mahin v. Shybi and Another],** this Court observed that while exercising the power under Section 482 of the Code of Criminal Procedure, it is not for this Court to re-appreciate the evidence and substitute the factual findings of the learned Magistrate or the revisional court. Even the revisional court can re-appreciate the evidence, only if appreciation of evidence by the Magistrate was perverse or any material evidence was omitted or overlooked. If these things are not available, then this Court cannot reappreciate the evidence while considering the application Crl.M.C.No.3423 of 2010 ## **:: 11 ::** under Section 482 of the Code of Criminal Procedure. With these principles in mind, the case in hand has to be considered. 11. It is an admitted fact that the petitioner herein married the first respondent and both of them belong to Muslim community. It is also in a way admitted that the first respondent herein is the divorced wife of the petitioner herein. In the petition itself, the first respondent herein had categorically stated that during settlement, she was made to sign an agreement on the pretext that unless she signs the document, she will not be given gold ornaments and the trust money entrusted in connection with the marriage. It is true that she filed M.C.No.625 of 2005 before the Family Court claiming maintenance and in that the petitioner herein contended that she is a divorced wife and produced Ext.D1 agreement before that court and examined one of the witnesses to Ext.D1 agreement before that court and as per Ext.D2 document, the Family Court found that the first Crl.M.C.No.3423 of 2010 ## **:: 12 ::** respondent herein is a divorced wife and she is not entitled to get maintenance and maintenance is allowed only to the child alone. It is also true that Ext.D2 judgment, it was observed that an amount of Rs.5,000/was paid towards maintenance during the period of iddat and Rs.95,000/- was paid as mattah expenses as per Ext.D1 document. But a perusal of Ext.D1 document will go to show that such a payment of any specific amount was absent. In Ext.D1, it was only mentioned that she had received the expenses during iddat and mattah expenses and the quantum of amount paid was not mentioned in the document. It is for the first time in the counter statement and in the proof affidavit filed by the petitioner herein that the amount was mentioned. CPW1 had admitted in his evidence that he has nothing to say if the quantum of maintenance paid during iddat and mattah expenses was not mentioned in Ext.D1 document. Further PW1 had categorically stated that she did not receive any amount towards maintenance during iddat Crl.M.C.No.3423 of 2010 ## **:: 13 ::** and mattah expenses as mentioned in Ext.D1 and she had made to sign Ext.D1 on the pretext that she was signing that document acknowledging the receipt of gold ornaments and the trust money paid at the time of marriage. It was admitted by CPW1 that she is an illiterate lady. So, in the circumstances and in the absence of specific mentioning about the quantum of amount paid towards the liability in Ext.D1, the courts below were perfectly justified in coming to the conclusion that Ext.D1 will not absolve the liability of the petitioner herein to pay the amount payable under Section 3 of the Act to his divorced wife and Ext.D1 only represents the document showing partial discharge of his liability regarding the return of gold ornaments and payment of amount due to the divorced wife as trust money entrusted to him at the time of marriage. I do not find any reason to interfere with the factual findings of the courts below in this regard in the the circumstances. The Additional Sessions Judge also came to the conclusion that the Crl.M.C.No.3423 of 2010 ## **:: 14 ::** observation made in Ext.D2 that Rs.1,00,000/- was paid towards iddat maintenance and mattah expenses is also without any evidence and such a conclusion is perfectly justifiable in the circumstances of the case. So, under the circumstances, the courts below are perfectly justified in coming to the conclusion that Ext.D1 is not sufficient to absolve the petitioner herein from his liability of payment of the amount payable by him towards iddat maintenance and mattah expenses to his divorced wife as provided under Section 3 of the Act. The quantum of maintenance fixed under the circumstances of the case cannot be said to be excessive as well. The courts below have fixed the monthly maintenance amount of Rs.1500/- and capitalized the same by taking 5 as multiplier and awarded Rs.90,000/- as amount payable for fair and reasonable provision and Rs.4500/- fixed as maintenance during iddat period of three months at the rate of Rs.1500/- and this is also perfectly justifiable and it cannot be said to be excessive in the circumstances of the case. So, there is Crl.M.C.No.3423 of 2010 **:: 15 ::** no illegality or perversity in the orders passed by the courts below which entitled this Court to interfere with the same invoking the power under Section 482 of the Code of Criminal Procedure. The petition lacks bona fides and the same is liable to be dismissed. In the result, the petition is dismissed. **Sd/K.RAMAKRISHNAN, JUDGE** **ks.** ## **TRUE COPY** **P.S.TO JUDGE** Crl.M.C.No.3423 of 2010 **:: 16 ::** ## **S.S.SATHEESACHANDRAN, J.** **------------------------------------------------** Crl.M.C.No.3423 of 2010 & Crl.M.A.No.5087 of 2010 **------------------------------------------------Dated this the 11[th] day of December, 2012** **==> picture [70 x 11] intentionally omitted <==** ## **Crl.M.C.No.3423 of 2010** Issue notice to the 1[st] respondent by speed post. In addition, petitioner shall also serve a copy of the Crl.M.C.No.3423 of 2010 ## **:: 17 ::** petition on the counsel appearing for 1[st] respondent before the court below and fle e o. ublic rosecutor takes notice for the 2[nd] respondent. ## **Crl.M.A.No.5087 of 2010** Issue notice to the respondent by speed post. ublic rosecutor takes notice for the 2[nd] respondent. 2. Interi stay for four weeks on condition of petitioner depositing a su of Rs.50,000/- within a period two weeks before the court below. If any pay ent has been ade on the clai s ade by the 1[st] respondent, credit shall be given to that a ount in the deposit. Of su ordered. A ount, if any, deposited as directed shall be released to the 1[st] respondent. ost after three weeks. Crl.M.C.No.3423 of 2010 **:: 18 ::** **(S.S.SATHEESACHANDRAN) JUDGE** sk/-