Kerala High Court
Saidu Muhammed vs Bushara on 17 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. Nos. 2554 & 2583 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
CRL.MC NO. 2554 OF 2018
AGAINST THE COMMON ORDER/JUDGMENT DATED
28.02.2018 IN CRL.RP NO.31 OF 2016 ON THE FILE OF THE
COURT OF SESSIONS, PALAKKAD AND ORDER/JUDGMENT DATED
19.12.2015 IN MC NO.103 OF 2011 ON THE FILE OF THE
JUDICIAL MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM
PETITIONER/RESPONDENT:
SAIDU MUHAMMED
(WRONGLY SHOWN AS "SYED" IN THE IMPUGNED
ORDERS), AGED 46 YEARS, S/O.KALLIVALAPPIL
ABDUL RAHMAN, NELLIKURISSI AMSOM DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT.
BY ADVS.
SRI.SANTHEEP ANKARATH
SRI.ARUN MATHEW VADAKKAN
RESPONDENT/PETITIONER:
BUSHARA
AGED 36 YEARS, D/O.CHAKKINGAL THALIYANTHODI
ABDUPPA, KOTHAKURISSI AMSOM DESOM, OTTAPALAM
TALUK, PALAKKAD DISTRICT, PIN - 679 501.
BY ADV. SRI.P.JAYARAM - R1
SRI.SANGEETHARAJ N.R., PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 17.10.2024, ALONG WITH Crl.MC.2583/2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C. Nos. 2554 & 2583 of 2018
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2024:KER:77772
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
CRL.MC NO. 2583 OF 2018
AGAINST THE ORDER/JUDGMENT DATED 28.2.2018 IN
CRL.R.P NO.58 OF 2016 ON THE FILE OF THE COURT OF
SESSIONS, PALAKKAD AND THE ORDER/JUDGMENT DATED
19.12.2015 IN M.C.NO.103 OF 2011 ON THE FILE OF THE
JUDICIAL MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM
PETITIONER/REVISION PETITIONER/RESPONDENT:
SAIDU MUHAMMED(WRONGLY SHOWN AS "SYED" IN THE
IMPUGNED ORDERS), AGED 46 YEARS,
S/O.KALLIVALAPPIL ABDUL RAHMAN, NELLIKURISSI
AMSOM DESOM,OTTAPALAM TALUK, PALAKKAD
DISTRICT.
BY ADVS.
SRI.SANTHEEP ANKARATH
SRI.ARUN MATHEW VADAKKAN
RESPONDENTS/RESPONDENT/PETITIONER/STATE:
1 BUSHARA
AGED 36 YEARS,D/O.CHAKKINGAL THALIYANTHODI
ABDUPPA,KOTHAKURISSI AMSOM DESOM,OTTAPALAM
TALUK,PALAKKAD DISTRICT,PIN-679501.
2 STATE OF KERALA, REPRESENTED BY ITS PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
KOCHI - 682 031
BY ADV SRI.P.JAYARAM
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 17.10.2024, ALONG WITH Crl.MC.2554/2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C. Nos. 2554 & 2583 of 2018
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2024:KER:77772
P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. Nos.2554 & 2583 of 2018
----------------------------------------------
Dated this the 17th day of October, 2024
ORDER
These two Criminal Miscellaneous cases are
connected and therefore, I am disposing of these two
Criminal Miscellaneous Cases by a common order.
2. The petitioner and the 1st respondent are
same in these cases. The parties are mentioned in
accordance to their rank in the trial court hereafter.
3. The petitioner who is the 1st respondent
herein filed a petition under Section 3(1) of the Muslim
Women (Protection of Rights on Divorce) 1986 (for
short 'Act 1986'), before the Judicial First Class
Magistrate Court-I, Ottappalam against the
respondent, who is the petitioner in these two cases.
The petitioner claimed different amounts in the petition
Crl.M.C. Nos. 2554 & 2583 of 2018
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under Section 3(1) of Act 1986 and the respondent
defended the same by filing a counter. To substantiate
the case, the petitioner and the respondent were
examined as PW1 and RW1. After going through the
evidence and other materials, the learned Magistrate
as per Annexure A1 order allowed MC No.103/2011 in
part and directed the respondent to pay Rs.6000/-
towards maintenance during iddat period and Rs
2,40,000/- towards the reasonable and fair provision
of maintenance. Accordingly, a total amount of
Rs.2,46,000/- is directed to be paid to the petitioner
by the respondent.
4. Aggrieved by the above order, petitioner and
the respondent filed separate criminal revision
petitions before the Sessions Court, Palakkad. The
revision filed by the petitioner is numbered as Crl.R.P.
No.31/2016 and revision filed by the respondent is
Crl.M.C. Nos. 2554 & 2583 of 2018
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numbered as Crl.R.P. No.58/2016. Crl.R.P. No.31/2016
and Crl.R.P. No.58/2016 are considered together and
as per the common order dated 28.02.2018, both the
revisions were disposed of. The Revisional court
allowed Crl.R.P. No.31/2016 in part and dismissed
Crl.R.P. No.58/2016. Aggrieved by the order in Crl.R.P.
No.58/2016 of the Sessions Court, Palakkad, Crl.M.C.
No.2583/2018 is filed. Aggrieved by the order in
Crl.R.P. No.31/2016 Crl. M.C. No. 2554/2018 is filed.
5. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.
6. The counsel for the respondent submitted
that the orders impugned are liable to be set aside,
and the trial court and the Revisional court has not
considered the matter in a proper manner. The counsel
appearing for the petitioner submitted that there is
Crl.M.C. Nos. 2554 & 2583 of 2018
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nothing to interfere with the impugned orders.
7. I will consider Crl.M.C. No.2554/2018 first.
This is the petition filed under Section 482 Cr.P.C
against the order in Crl.R.P. No.31/2016 of the
Sessions Court, Palakkad. Admittedly, Crl.R.P.
No.31/2016 is filed by the petitioner in M.C.
No.103/2007 on the file of the Judicial First Class
Magistrate Court-I, Ottapalam. The learned Sessions
Judge allowed Crl.R.P. No.31/2016 in part. Aggrieved
by the same, Crl.M.C. No.2554/2018 is filed by the
respondent in Crl.R.P. No.31/2016. I am of the
considered opinion that the remedy of the respondent
against the order passed in Crl.R.P. No.31/2016 is to
file a revision before this Court because he was the
respondent in Crl.R.P. No.31/2016 in which an order is
passed against him. Therefore, primafacie, a petition
under Section 482 Cr.P.C. is not maintainable because
Crl.M.C. Nos. 2554 & 2583 of 2018
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a remedy of revision is there to the respondent. But,
since the Crl.M.C. is admitted by this Court long back
and the matter is pending before this Court, I am of
the considered opinion that this Crl.M.C. need not be
dismissed on the question of maintainability at this
distance of time. Therefore, I am of the considered
opinion that the matter can be considered on merit.
8. As per the impugned order, the revisional
court enhanced the maintenance towards Iddat period
to Rs.3,000/- and consequently fair and reasonable
provision towards her future maintenance is also
enhanced taking Rs.3,000/- as monthly maintenance.
The learned Magistrate fixed Rs.2,000/month for a
period of three months as maintenance towards Iddat
period and Rs.2,000/month for a period of 120 months
was assessed as fair and reasonable provision for
future maintenance. The revisional court considered
Crl.M.C. Nos. 2554 & 2583 of 2018
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the matter in detail and also considered the financial
status of the parties in the revisional order. The
revisional court found that the maintenance @
Rs.2,000/- ordered by the learned Magistrate is too
insufficient for the respondent to maintain herself.
Hence the same is increased to Rs.3,000/- by the
revisional court. I see absolutely no reason to
interfere with the same. Thereafter the revisional
court assessed the fair and reasonable provision for
future maintenance @ Rs.3,000/-. There is nothing to
interfere with the same also.
9. The trial court as per Annexure A1 order
rejected the prayer of the 1st respondent regarding the
claim for gold ornaments. It will be better to extract
the relevant portion of Annexure A1 order:
"12. Learned counsel for the petitioner
argued that as per the version of PW1 she was
given 30 sovereigns of gold ornaments and Rs.
50,000/- at the time of her marriage which was
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misappropriated by the respondent. Later
respondent had given back nine sovereigns out of
the same as per the agreement entered between
them, at Dy.S.P. Office, Shornur.
13. Here there is an allegation of
misappropriation of 21 sovereigns gold ornaments
and Rs. 50,000/- by the respondent. But no
document is produced by PW1 to show that she
was having 30 sovereigns of gold ornaments and
Rs.50,000/- at the time of marriage which was
misappropriated by the respondent. On the other
hand respondent is denying such handing over of
money and gold ornaments by PW1, to him. PW1
had a version that as per the agreement arrived
by them at the Dy.S.P. office, Shornur, she was
given back nine sovereigns of gold ornaments and
the rest of gold ornaments were undertook to be
given back by the respondent later. No such
agreement is produced before the court by PW1.
14. There is no evidence before the court
that the respondent had misappropriated 21
sovereigns of gold ornaments and Rs.50,000/-
from the petitioner. Only evidence available
regarding misappropriation is the interested
testimony of PW1. There should be proof to show
that the respondent had taken away those 21
sovereigns and Rs.50,000/- as alleged by the
Crl.M.C. Nos. 2554 & 2583 of 2018
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petitioner.
15. There is no evidence pertaining to the
taking of money and subsequent misappropriation
by the respondent. Here there is only the
interested testimony of PW1 who is the petitioner
herein. No oral or documentary evidence is
produced by the petitioner to show the same. The
respondent hadn't admitted the handing over of
money to him. In this circumstances such relief
can not be given to petitioner, in the absence of
any reliable evidence.
16. At this juncture it is pertinent to note
that the petitioner failed to prove that the
respondent had misappropriated Rs.50,000/- and
21 sovereigns of gold ornaments which were the
properties of petitioner herein. Here she is not
entitled to get Rs.50,000/- as well as the value of
21 sovereigns of gold ornaments as claimed by
her. Hence point No.2 and 3 are found against the
petitioner."
10. It is true that the revisional court directed to
give back 21 sovereigns of gold ornaments or
Rs.4,00,000/- as its value and also Rs.50,000/-
presented to him during their marriage. The finding of
Crl.M.C. Nos. 2554 & 2583 of 2018
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the revisional court in this regard is extracted
hereunder:
"16. The court below has turn down the
prayer of PW1 to get back the jewels worth 21
sovereigns or its value and ₹50,000/- said to have
been presented by her kith and kin during her
marriage. The money and gold were squandered
by her former husband, she urged. She was
presented 30 sovereigns of jewels during her
marriage. The entire jewels were obtained by RW1
out of which 9 sovereigns were given back to her.
A mediation talk was held at the intervention of
the Deputy Superintendent of Police, Shornur, she
deposed. He deposed before the Deputy
Superintendent of Police at the outset that her
jewels were pledged by him and at the next blush
he insisted for getting her share in the landed
property purchased in their joint names conveyed
in his favour. As she refused for that, he did not
give back the rest of the gold. The said property
according to her is the one purchased by her
father utilizing his own fund in their joint names.
According to her, on a second occasion also they
had been to the office of the Deputy
Superintendent of Police, Shornur and at that time
he brought the rest of the gold but refused to give
Crl.M.C. Nos. 2554 & 2583 of 2018
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back to her as she did not heed to his demand to
convey the property exclusively in his name. Of
course it is seen brought out by the respondent
during cross examination that such details were
not elaborately stated by her in her application.
Her father also accompanied her to the office of
the Deputy Superintendent of Police. RW1 came
along with his brother-in-law. None of them were
made to sign any records pursuant to the talks
held by the Deputy Superintendent of Police.
17. According to PW1, her former husband
was employed abroad for around 25 years. As per
his version he worked Overseas for around 10 to
18 years, having been employed as a driver in
Qater. According to him, she had only 10 to 15
sovereigns of gold. He himself stated that during
their matrimony they were leading a reasonably
high standard of living. His father was a trader in
grocery and his parents have land property. He
equally admitted that PW1's father was in gulf
countries. In such a family status it is not
assumable that he preferred to marry PW1
without getting jewels and cash. While
determining the credibility of the claim put forth
by PW1, it has to be borne in mind that RW1
married her while he was working abroad, that
too, for reasonably a long period. The court below
Crl.M.C. Nos. 2554 & 2583 of 2018
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disbelieve the version of PW1 for the reason that
she failed in bringing home any document showing
that she was having 30 sovereigns of gold
ornaments at the time of marriage. It is too idle to
assume that a bride while entering into her
matrimonial home would keep all bills and receipts
regarding purchase of jewels for her marriage.
Her parents are also not expected to keep such
records anticipating a marital clash between the
spouses in future. Whether the bride was
presented with adequate jewels during marriage
could be discerned only from the attending
circumstances and the relevant status of the
parties to the marriage. In the given case on a
sensible approach of the evidence let on record by
both of them, it could be well gathered that PW1
was given reasonably good number of ornaments.
She herself admitted that 9 sovereigns of
ornaments were given back by RW1 to her. If she
was making unreasonable talks and false claims,
she could have hushed up the said aspect also and
could have claimed the entire 30 sovereigns of
gold from him. He himself having admitted that
she was seen wearing around 15 sovereigns of
gold, it has to be assumed that what narrated by
the petitioner is not a false story. If her intention
is to put forth false and frivolous claims, she could
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have claimed more quantity of gold.
18. On the mere fact that no documents
could be made available by her in respect of the
settlement talks held at the office of the. Deputy
Superintendent of Police, Shornur, it cannot be
simply assumed that she was uttering only
falsehood. She made out a specific case that RW1
withdrew from his word to give back the rest of
the gold when she refused to adhere to his
request to convey her share in the landed
property in his favour. On a total evaluation of the
entire factual niceties, I am guided to believe her
version as true and correct. It is well come out in
her evidence that she made to believe that her
jewels were pledged by him. It is not probable for
a wife/daughter-in- law to get any document in
that regard from her husband. Only because RW1
preferred to deny all such allegations, it cannot be
assumed that what he stated is only the truth. The
court below repeatedly observed that there is no
evidence before the court that the respondent had
misappropriated 21 sovereigns of gold ornaments
from the petitioner. The learned Magistrate did not
favourably accept the solitary narration of PW1 in
this regard.
19. As rightly submitted by the learned
counsel for the petitioner, production of
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documents relating to jewels by the wife in a
proceeding of this nature need not be insisted to
determine her entitlement over the claims set
forth. Here the version of PW1 itself is sufficient to
hold that she is entitled to get back 21 sovereigns
of gold ornaments or its equivalent value from her
former husband. In view of the pendency of a
criminal prosecution under Section 498(A) of the
Indian Penal Code against RW1, the version of
PW1 about the intervention of the Deputy
Superintendent of Police, Shornur cannot be
totally disbelieved. At the risk of repetition, I
would say that such talks had not been there,
PW1 need not have raised such a plea at the cost
of 9 sovereigns of gold. RW1 admitted that the
ration card of his family was in the status of APL.
20. Her version about presentation of
₹50,000/- by her parents to her former husband
also is a matter believable to the court, when
tested in the normal and natural sequence of
events. There is no legal or factual impediment in
believing her version having regard to the financial
status of RW1 and his family when his marriage
was solemnized. Just like the jewels, no court cant
expect a documentary proof in that regard to
substantiate the factum of presentation of cash to
the bridegroom by his in-laws. So in view of the
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above discussion I disagree with the finding
arrived at by the court below in respect of the
claim for gold and cash put forth by the petitioner.
It is well brought out in the evidence that PW1 is
unemployed and she has no income of her own.
The purpose of the enactment is to save a
divorced lady from penury. The gold and cash
misappropriated by her former husband are her
properties which she is entitled to recover back
from him and her claim in that regard is factually
and legally permissible. In that view of the matter,
I prefer to interfere with and to reverse the finding
of the court below."
11. The revisional court allowed the prayer for
gold ornaments based on the oral evidence of the 1 st
respondent. The trial court considered the matter in
detail and rejected the prayer of the 1 st respondent
because there was no documentary evidence. The
revisional court ordered the return of the gold
ornaments based on the presumption that the 1 st
respondent may have such quantity of gold ornaments.
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Rs.50,000/- is also ordered based on oral evidence. I
am of the considered opinion that the order passed by
the revisional court in that respect is unsustainable.
Trial court considered the matter in detail and passed a
speaking order. There is nothing to interfere with the
same. Therefore that portion of the order is to be set
aside.
12. Crl.M.C. No.2583/2018 is filed challenging
the concurrent finding in M.C. No.103/2011 and
Crl.R.P. No.58/2016. The jurisdiction of this Court to
interfere with the same invoking the powers under
Section 482 Cr.P.C. is very limited. Unless there are
patent illegalities or jurisdictional error, this Court
cannot interfere with the concurrent finding of fact by
the trial court and the revisional court. This Court
anxiously considered the contentions of the respondent
and also the impugned judgments. I am of the
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considered opinion that there is nothing to interfere
with the same. Therefore, there is no merit in this
Crl.M.C.
Accordingly, Crl.M.C. No.2583 of 2018 is
dismissed. Crl.M.C. No.2554 of 2018 is allowed and
the direction of the revisional court to give back 21
sovereigns of gold ornaments or Rs.4,00,000/- as its
value and also to pay Rs.50,000/- by the petitioner is
set aside.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
Crl.M.C. Nos. 2554 & 2583 of 2018
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PETITIONER ANNEXURES
ANNEXURE A1:- CERTIFIED COPY OF ORDER DATED
19.12.2015 IN CRL.M.C.NO.103/2011
PASSED BY JUDICIAL FIRST CLASS
MAGISTRATE COURT-1,OTTAPALAM.
ANNEXURE A2:- CERTIFIED COPY OF COMMON ORDER DATED
28.2.2018 IN CRL.R.P.NO.58/2016 ON
THE FILE OF THE COURT OF SESSION,
PALAKKAD.
Crl.M.C. Nos. 2554 & 2583 of 2018
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PETITIONER ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF ORDER DATED
19/12/2015 IN CRL.MC.NO.103/2011
PASSED BY JUDICIAL FIRST CLASS
MAGISTRATE'S COURT-I, OTTAPALAM.
ANNEXURE A2 CERTIFIED COPY OF COMMON ORDER DATED
28/2/2018 IN CRL.R.P.NO.31/2016 ON
THE FILE OF THE COURT OF SESSION,
PALAKKAD.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
