Kerala High Court
Nasar vs Fousiya on 25 October, 2024
2024:KER:79566
Crl.R.P.No.1022/2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
CRL.REV.PET NO. 1022 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 20.10.2023 IN CRA NO.2 OF
2023 OF DISTRICT COURT & SESSIONS COURT, KOZHIKODE ARISING OUT OF
THE ORDER DATED 30.11.2022 IN MC NO.3 OF 2019 OF JUDICIAL
MAGISTRATE OF FIRST CLASS, PERAMBRA
REVISION PETITIONERS/APPELLANTS/RESPONDENTS:
1 NASAR,
AGED 48 YEARS,
S/O. AMMAD, ALORACHALIL HOUSE,
KAYANNA AMSOM,MATTANOD DESOM, KOYILANDI TALUK,
KOZHIKODE DISTRICT, PIN - 673527.
2 ALEEMA,
AGED 66 YEARS,
W/O. AMMAD, ALORACHALIL HOUSE,
KAYANNA AMSOM, MATTANOD DESOM,
KOYILANDI TALUK, KOZHIKODE DISTRICT, PIN - 673527.
BY ADVS.
SANTHARAM.P
REKHA ARAVIND
PAUL P. ABRAHAM
P.G.GOKULNATH
RESPONDENTS/RESPONDENTS/APPLICANTS:
1 FOUSIYA
AGED 44 YEARS
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Crl.R.P.No.1022/2024 2
D/O. PAKROOTTY, AYOLI HOUSE,
CHENOLI AMSOM, VALUR DESOM,
KOYILANDI TALUK, KOZHIKODE DISTRICT, PIN - 673525.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 07.10.2024, THE COURT ON 25.10.2024 PASSED THE FOLLOWING:
A. BADHARUDEEN, J.
================================
Crl.R.P.No.1022 of 2024
================================
Dated this the 25th day of October, 2024
ORDER
This revision petition has been filed under Section
438 and 442 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (`BNSS' for short) challenging judgment dated
20.10.2023 in Crl.Appeal No.2/2023 on the files of the
Additional Sessions Court, Kozhikode, arising out of order
in MC.3/2019 on the files of Judicial First Class Magistrate
Court-I, Perambra, and the revision petitioners are
respondents 1 and 2 in the M.C and the appellants in the
Criminal Appeal.
2. Heard the learned counsel for the revision
petitioners and the learned Public Prosecutor on admission.
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3. I shall refer the parties in this Revision Petition with
reference to their status before the trial court as the `petitioner' and the
`respondents'.
4. Brief facts: According to the petitioner, the 1 st
respondent married her on 01.05.2014 and thereafter lived together as
husband and wife. At the time of marriage 2 ½ sovereigns of gold
ornament was given to the petitioner as `Mahar' by the respondent.
Moreover, 18 ½ sovereign of gold ornaments were given to the petitioner
at the time of marriage by her parents. Subsequently, while living together
as husband and wife at the matrimonial house the 1st respondent
misappropriated her gold ornaments. Apart from that both the respondents
were harassed the petitioner demanding more money and ornaments. Due
to the continuous harassment of the respondent, the property having an
extent of 7 ½ cent owned by the mother of the petitioner was disposed and
rupees three lakh fifty thousand was also given to the 1 st respondent. By
using this amount, the 1st respondent started bakery business. The
petitioner and the 1st respondent lived together at her matrimonial house
for a period of 2 years and thereafter shifted to a rented house. The facts
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being so, on 14.01.2018 the 1st respondent physically manhandled the
petitioner and brought her to her house. Thereafter, there was mediation
talk, but it was not materialized. The petitioner has no income of her own
for maintenance. Therefore, the petitioner sought monthly maintenance of
Rs.7,000/- from the 1st respondent contending that the 1st respondent has
been earning Rs.30,000/- from the bakery business. Therefore, the
petitioner sought protection order under Section 18(a)(d) of the Domestic
Violence Act (`D.V Act' for short), maintenance under Section 20(1)(d) of D.V
Act, the value of gold ornaments misappropriated by the 1 st respondent and to
realise Rs.30,50,000/- given to the 1st respondent under Section 19(8) of the
D.V Act.
5. The respondents filed objection and resisted the
petitioner. According to them, no gold ornaments of the petitioner were
taken by the respondents and no money or gold ornaments were given at
the time of marriage. The father of the 1st respondent had pledged gold
ornament of the petitioner for Rs.70,000/- and the 1 st respondent was ready
to hand over the same. The income of the 1st respondent was denied and
illicit relation of the petitioner with another man also alleged. It was also
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contended that the income derived by the 1st respondent from the bakery
business was meagre.
6. The trial court ventured the matter. PW1 to PW3 were
examined and Exhibits P1 to P4 were marked on the side of the petitioner.
On the side of the respondents, the 1st respondent got examined as RW1.
On appreciation of evidence the learned Magistrate granted reliefs as
under:
"1. The respondents are prohibited from committing
any act of domestic violence against the applicant.
2. The first respondent is directed to give Rs.6,000/-
per month to the applicant as maintenance from the date of the order.
3. The first respondent is directed to return the 16
sovereigns of gold ornaments or its value to the applicant."
7. Although an appeal was filed before the Sessions Court,
the Additional Sessions Judge also concurred the finding of the trial court
and dismissed the appeal.
8. While impeaching the concurrent verdicts, it is argued
that as per the contentions raised by the petitioner, 16 sovereigns of gold
ornaments belonging to the petitioner, 2 ½ sovereigns given as mahar and
1 sovereign of ring belonged to her. During evidence it was revealed that
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she herself pledged some of the gold ornaments. Therefore, finding of the
trial court as well as the appellate court holding that the respondents are
bound to return 16 sovereigns of gold ornaments to the petitioner without
support of any documentary evidence is erroneous. It is also submitted that
grant of Rs.6,000/- as monthly maintenance to the petitioner ignoring the
meagre income, as contended by the 1st respondent also, is on higher side.
9. On perusal of the order, the trial court relied on the oral
version of the PW1, the petitioner and PW2, the brother of PW1 and also
the evidence of PW3 who intervened in the dispute between the petitioner
and the 1st respondent. While holding that the respondents committed
domestic violence, the trial court granted Rs.6,000/- per month to the
petitioner as maintenance from the date of the order. In order to justify
grant of Rs.6,000/- per month as monthly maintenance, the trial court
considered the fact that no evidence was let in to find any independent
income of the petitioner and also considered the fact that admittedly the 1st
respondent has been running the bakery business. Even though the income
in fact derived by the 1st respondent from bakery business is not
established, the trial court granted only Rs.6,000/- per month as
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maintenance and the same appears to be very reasonable, considering the
living index. Therefore, no interference is called for in the maintenance
granted by the trial court and confirmed by the appellate court.
10. Regarding return of 16 sovereigns of gold ornaments or
its value to the petitioner, in paragraph 15, the trial court considered this
issue and it was found by the trial court that as per Ext.P4, it was alleged
that the 1st respondent pledged 2 ½ sovereigns of gold ornaments in Kerala
Gramin Bank, Chalikara branch and as regards to gold ring having ¾
sovereign also, the trial court found that the same was given by the 1 st
respondent to the petitioner. But the trial court ordered 16 sovereigns of
gold ornaments mainly relying on the evidence of the 1 st respondent during
cross examination by admitting that his father had pledged certain gold
ornaments of the petitioner and he was ready to return the gold ornaments.
In the objection it was contended that, the 1st respondent's father pledged
gold ornaments for the value of Rs.70,000/-. Thus the quantity of the gold
ornaments is not disclosed. Admittedly gold ornaments belonging to the
petitioner were pledged for Rs.70,000/-. The trial court also considered
Ext.P1 sale deed, whereby the mother of the petitioner sold her property
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and gave Rs.3,50,000/- to the 1st respondent. But the trial court did not
consider the same since the sale consideration shown in Ext.P1 was
Rs.50,000/-. Thereby the said relief was denied.
11. On considering materials within the limited power of
revision, it could not be held that the trial court or the appellate court
committed any patent illegality so as to interfere with the concurrent
verdicts by exercising power under Sections 438 and 442 of BNSS.
Hence this petition must fail and is accordingly dismissed.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
