Kerala High Court
Mijas K. Mohammed vs State Of Kerala on 9 November, 2021
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
BAIL APPL. NO. 3770 OF 2021
CRIME NO.147/2021 OF KOLLAM EAST POLICE STATION.
PETITIONER/ACCUSED:
MIJAS K. MOHAMMED, AGED 33 YEARS
KOTTAPURATH HOUSE, MOOLEPADAM NAGAR, KALAMASSERY,
ERNAKULAM.
ERNAKULAM, PIN - 683104
BY ADV C.Y.VINOD KUMAR
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
ERNAKULAM, PIN - 682031
2 FATHIMA RASHEEDA BEEVI, AGED 30 YEARS
D/O JAMALUDHEEN, PANDAPLAVIL HOUSE, VRINDAVAN NAGAR,
KADAPPAKADA, KOLLAM.KOLLAM, PIN - 691008
BY ADVS.
PUBLIC PROSECUTOR
S.MUHAMMED HANEEFF
M.H.ASIF ALI
T.T.SHANIBA
SMT. SEETHA .S (SR PP)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
This is an application for anticipatory bail.
2. The petitioner is the accused in Crime No.147/2021 of Kollam East police station, alleging commission of offences under Sections 498A and 494 of the Indian Penal Code and and Section 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 (hereinafter referred to as 'the Act').
3. The petitioner got married to the de facto complainant in the year 2015. It is alleged that at the time of marriage, a huge amount of money and nearly 150 sovereigns of gold were given as dowry. It is submitted that an apartment was also purchased in the name of the de facto complainant. Petitioner was working in Saudi Arabia at that time. It is stated that he lost his job and returned to India and he wanted to sell the apartment for the purpose of starting a business. This was objected to by the de facto complainant. The de facto complainant was sent back to her house and on 24.12.2018, by Annexure-A1 document an irrevocable Talak was allegedly pronounced. The de facto complainant approached the Family Court, challenging the pronouncement of Talak and also claiming restitution of conjugal rights. The Family Court directed the parties to attempt settlement through mediation. However, due to the Covid-19 pandemic, no mediation took place, except one formal sitting. It is alleged that while matters stood thus, the petitioner married another woman in January, 2021. It is also submitted that it is only after the de facto complainant approached this court that a serious investigation is made into the complaint filed by the d e facto complainant.
4. Learned counsel appearing for the petitioner would submit that Annexure-A1 is not an irrevocable talak and therefore, Sections 3 and 4 of the Act is not attracted. He also submits that there is no question of the petitioner having committed an offence under Section 494 of the Indian Penal Code as Muslim personal law permits him to marry upto four times. It is also submitted that he had not harassed the de facto complainant for dowry in any manner and that he is paying maintenance at the rate of Rs.4,000/- (Rupees four thousand) per month to the de facto complainant.
5. Learned counsel appearing for the de facto complainant would submit that the marriage in 2015 in so far as the petitioner and the de facto complainant were concerned was the second marriage for both of them. He submits that huge amount was demanded and collected as dowry at the time of marriage and when proceedings before the Family Court were going on regarding the validity of the talaq and for restitution of conjugal rights, the petitioner married again in January, 2021. It is also submitted that the police did not carry out any proper investigation in the matter and even today, the provisions under the Dowry Prohibition Act have not been incorporated despite clear assertion that the petitioner had committed offences under the provisions of that Act. It is also submitted that Rs.4,000/- that is being paid is as maintenance for the son born out of the relationship between the petitioner and the de facto complainant and not a single rupee is being paid to the de facto complainant as maintenance. Learned counsel appearing for the petitioner agrees that in addition to the amount of Rs.4000/- being paid as maintenance to the son of the petitioner and the de facto complainant, a further amount of Rs.5,000/- (Rupees five thousand only) per month can be paid to the de facto complainant towards maintenance which has to be adjusted against any maintenance order that would have passed by any court .
6. Having regard to the facts and circumstances of the case and considering the fact that the custodial interrogation of the petitioner may not be necessary for the purpose of investigation into crime No.147/2021 of Kollam East Police station, I am inclined to grant anticipatory bail to the petitioner subject to strict conditions.
In the result, this application is allowed. It is directed that the petitioner shall be released on anticipatory bail, in the event of arrest in crime No.147/2021 of Kollam East police Station subject to the following conditions:-
(i) Petitioner shall execute bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the likesum to the satisfaction of the jurisdictional Court;
(ii) Petitioner shall appear before the investigating officer in Crime No..147/2021 of Kollam East Police station as and when summoned to do so;
(iii) The petitioner shall not attempt to contact the de facto complainant or interfere with the investigation or to influence or intimidate any witness in Crime No.147/2021 of Kollam East police station;
(iv) The petitioner shall pay a sum of Rs.5,000/- (Rupees five thousand only) each month to the de facto complainant as interim maintenance to be adjusted against any order for payment of maintenance by any court in future. This amount shall be in addition to Rs.4000/- per month which is being paid by the petitioner to the de facto complainant towards maintenance for the child born out of the relationship between the petitioner and the de facto complainant. Both these amounts shall be paid on or before the 5 th day of every month.
(v) The petitioner shall not involve in any other crime while on bail.
If any of the aforesaid conditions are violated, the investigating officer in Crime No..147/2021 of Kollam East police station may file an application before this Court, for cancellation of bail.
SD/-
GOPINATH P. JUDGE ajt