IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3315 of 2003(D)
1. MACHICHERI KOYAMU, S/O. MOIDEEN,
... Petitioner
Vs
1. KIZHAKKETHIL AYISHA, D/O. ALAVI,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :SRI.P.SAMSUDIN
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :13/02/2009
O R D E R
M.C.HARI RANI, J.
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CRL.M.C.No.3315 OF 2003
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DATED THIS THE 13TH DAY OF FEBRUARY , 2009
O R D E R
The petitioner in this petition is the counter petitioner in
M.C.No.8/2000 on the file of the Judicial First Class Magistrate’s
Court-I, Manjeri. That M.C. was filed by the first respondent herein
who filed a petition under Section 3(1) of the Muslim Women
(Protection of Rights on Divorce) Act, 1986. The allegation in that
petition as revealed from the statement of facts stated in this
petition is that the petitioner herein married the first respondent
about 40 years back. After the marriage, the petitioner
misappropriated gold ornaments, wooden cots, etc. and the first
respondent was divorced by the petitioner on 5.9.1999. About 10
months before 5.9.1999, she was sent out of the house by the
petitioner. Accordingly, the first respondent as the wife claimed
Rs.6,000/- towards iddat and Rs.1 lakh towards Matah and also
claimed Rs.33,000/- towards value of gold ornaments. The
allegations in that petition filed by the first respondent herein was
disputed by the petitioner who filed a counter statement wherein
the petitioner has denied the pronouncement of Talaq and also the
income of the petitioner as stated in the petition at the rate of
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Rs.8,000/- per month. It was also contended that the first respondent is
not the divorced wife and is not entitled to get any amount under Section
3(1) of the Muslim Women (Protection of Rights on Divorce) Act.
Misappropriation of gold ornaments alleged against the petitioner was
also disputed. According to the petitioner, the first respondent deserted
him and left the company of the petitioner and for that reason he has
married again and prayed for dismissal of the petition.
2. PWs 1 to 4 were examined on the side of the petitioner and
Exhibits P1 and P2 were marked. On the side of the counter petitioner in
the M.C., Rws 1 and 2 were examined and Exhibit R1 was marked.
Considering the oral testimony of the witnesses and the documents
produced at the instance of the petitioner and the counter petitioner in
the M.C., the learned Magistrate has passed an order dated 14.11.2002,
whereby the petition was allowed in part. The respondent in the M.C.
was directed to pay an amount of Rs.30,000/- to the petitioner as Matah
and Rs.1,500/- as maintenance during idath period at the rate of
Rs.500/- per month. The prayer for realisation of Rs.33,000/- towards
misappropriation of gold ornaments by the respondent was rejected.
3. Aggrieved by the finding in the M.C., the petitioner preferred
criminal revision petition before the Court of Sessions Judge, Manjeri and
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as per order dated 24.2.2003, the learned Sessions Judge has
reappreciated the evidence on record, both oral and documentary, and
came to the conclusion that the finding of the learned Magistrate was
with sufficient reasonings and on the basis of the evidence adduced by
both parties and that finding was not illegal. Accordingly, the revision
petition preferred by the counter petitioner in the M.C. was dismissed.
Subsequently, this petition was filed by the petitioner herein, who is the
counter petitioner-respondent in the M.C. with the prayer to set aside
Annexures A and B, the orders in M.C.No.8/2000 dated 14.11.2002 and
Crl.R.P.No.50/02 dated 24.2.2003 passed by the Judicial First Class
Magistrate Court-I, Manjeri and Sessions Court, Manjeri respectively.
4. Heard the learned counsel appearing for the petitioner and
also the first respondent.
5. It is submitted by the learned counsel appearing for the
petitioner that the petitioner herein is aged 78 years and that he has not
divorced the first respondent on 5.9.1999 as alleged in the M.C. and for
that reason, the first respondent is not entitled to get any amount under
Section 3(1) of Muslim Women (Protection of Rights on Divorce) Act.
According to the learned counsel, the first respondent was deserting the
petitioner for several years and the petitioner has not misappropriated
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any of the gold ornaments of the first respondent. Therefore, the
concurrent finding of both the lower courts that there was valid Talaq
and hence the first respondent was entitled to get a total amount of
Rs.31,500/- under the heads Matah and iddat are incorrect and are liable
to be set aside. According to the learned counsel, no sufficient
evidence was adduced from the side of the first respondent herein to
prove that there was valid Talaq or divorce. The learned counsel relied
on the decision reported in Ummer Farooque v. Naseema (2005(4)
KLT 565).
6. The prayer in this petition is opposed by the learned counsel
appearing for the first respondent. According to the learned counsel of
the first respondent, both courts below have appreciated the evidence of
the witnesses and though there were some minor discrepancies in their
versions, it did not affect the veracity or credibility of the witnesses and
their versions were accepted to come to the conclusion that there was
valid divorce and Talaq was already pronounced by the petitioner herein
and the first respondent was found entitled for getting the amount as
ordered by both the courts concurrently. Further, no reappreciation of
evidence is possible under Section 482 of Cr.P.C. by invoking the
inherent jurisdiction of this Court for which the learned counsel has relied
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on the decision reported in Rajathi v. C.Ganesan (1999 (6) SCC
326).
7. The learned counsel appearing for the petitioner has read the
evidence of PWs 1 to 4 as a whole. The evidence tendered by PW2 and
the document marked as Exhibit P2 as such were not relied on by the
learned Magistrate as revealed from the impugned order Annexure A.
But, in the light of the evidence adduced by PWs 3 and 4 regarding the
pronouncement of Talaq by RW1, it was found that the evidence of PW2
also can be relied on to some extent. Considering the subsequent
conduct of the petitioner herein, it can be seen that the petitioner has
not even raised his little finger and no attempt has been made to bring
the wife, the first respondent herein, who according to him has deserted
him for months together. Instead of that, he married another lady and is
now living with that newly wedded wife and has also got a child in that
wedlock. Considering the conduct of the petitioner and also the
testimonies of PWs 1 to 4 together and also the evidence tendered by
RWs 1 and 2, the learned Magistrate and also the learned Sessions
Judge came to the conclusion that the first respondent herein as the
petitioner’s divorced wife, against whom proper Talaq was pronounced by
the petitioner herein, was found entitled to get an amount of Rs.30,000/-
CRL.M.C.No.3315/03 -6-
as Matah and a total amount of Rs.1,500/- as maintenance during idath
period at the rate of Rs.500/- per month. The decision relied on by
learned counsel for the petitioner reported in Ummer Farooque v.
Naseema (2005(4)KLT 565) is not applicable to the facts of this case
and that decision was held in a case where maintenance under Section
125 was claimed by a wife. Absolutely, nothing has been shown to exist
for this Court to invoke the powers under Section 482 of Cr.P.C. to
interfere with the concurrent finding of the courts below.
8. Considering the facts and circumstances in this case, I find
that there is no illegality or irregularity in the concurrent finding of both
the courts and interference with the impugned order by invoking the
powers under Section 482 of Cr.P.C. at the instance of the petitioner is
totally unnecessary.
In the result, this Crl.M.C. is dismissed.
M.C.HARI RANI, JUDGE.
dsn