Kerala High Court
Thasni B.Bangera vs State Of Kerala on 24 September, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942
Crl.Rev.Pet.No.835 OF 2014
AGAINST THE ORDER IN MC NO.3/2012 OF THE CHIEF JUDICIAL MAGISTRATE
COURT, KASARAGOD
REVISION PETITIONER/PETITIONER:
THASNI B.BANGERA
AGED 25 YEARS
D/O.BEERAN MAMMU, R/AT KAILASAPURA ROAD,
MAHIN NAGAR, UDAYAGIRI, VIDYANAGAR POST,
KASARAGOD TALUK, KASARAGOD DISTRICT
BY ADV. SRI.K.P.HARISH
RESPONDENTS/STATE & RESPONDENT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031
2 AMMERURAHIMAN,
AGED 33 YEARS
S/O.USMAN HAJI, R/AT RAHMANIYA MANZIL,
KUNNIL HOUSE, OPPOSITE KUNNIL SCHOOL,
THALANGARA VILLAGE AND POST, KASARAGOD-671351
R2 BY ADV. SRI.P.V.ANOOP
SRI.B.JAYASURYA, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
24.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.R.P No.835 of 2014
2
ALEXANDER THOMAS, J.
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Crl.R.P No.835 of 2014
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Dated this the 24th day of September, 2020
ORDER
The prayer in the above Criminal Revision Petition filed under Sec.397 read with Sec.401 of the Code of Criminal Procedure, 1973 is as follows :
"............. to allow this Criminal Revision Petition and set aside the order dated 21.02.2014 as far as it declines certain claims to the petitioner and allowing this petition by directing the respondent to pay the entire claim from the date of filing the M.C.No.3 of 2012 before the court below."
2. Heard Sri.K.P.Harish, learned counsel appearing for the petitioner, Sri.P.V.Anoop, learned counsel appearing for the 2nd respondent and Sri.B.Jayasurya, learned Public Prosecutor appearing for the 1st respondent.
3. The order under challenge is the one rendered by the Chief Judicial Magistrate, Kasaragod on 21.02.2014 in M.C.No.3/2012 filed by the petitioner herein under Sec.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
4. The parties are Muslims and the marriage between the petitioner herein and the 2nd respondent herein was solemnized on Crl.R.P No.835 of 2014 3 01.02.2007. The petitioner filed original petition for divorce before the Family Court, Kasaragod, in which judgment was rendered in the said O.P No.117/2010, granting divorce and the marriage between the parties was thus dissolved on 25.02.2011. Later, the petitioner herein has re-married another person on 14.04.2012.
5. The case of the petitioner is that she had brought in gold ornaments weighing 95 sovereigns as well as Rs.2 lakhs at the time of her marriage, which was entrusted to the respondent herein for custody as demanded by him. Further that, after the dissolution of the marriage, the petitioner herein has observed the iddath period and she has not been paid the iddath maintenance. Further that, the respondent herein has not given her the Mahar of 5 sovereigns of gold, as agreed at the time of the marriage. The petitioner has also claimed maintenance for the period in question at the rate of Rs.5,000/- per month and she has also prayed that she is entitled to get Rs.10 lakhs for fair and reasonable provision for future maintenance.
6. The court below had noted that though the claim of the petitioner is that she had entrusted 95 sovereigns of gold as well as Rs.2 lakhs after her marriage with the respondent, the latter has taken the stand that she had brought in only 4o sovereigns of gold and that Crl.R.P No.835 of 2014 4 the same has been taken back by her when she had gone away to her parental home and that at no point of time, the petitioner herein or her relatives have handed over Rs.2 lakhs to the respondent either before the marriage or after the marriage. The court below has found that no convincing evidence has been brought on record by the petitioner to at least strongly infer that she had entrusted any gold ornaments with the husband before or after the marriage, as claimed by the petitioner, except her unilateral assertions in the oral evidence. Since the said oral evidentiary version of the petitioner herein has been strongly opposed by the 2nd respondent herein, who has asserted that at no point of time, the abovesaid gold ornaments or money has been entrusted to him, the court has taken the stand that the said crucial aspect has not been proved by the petitioner and therefore, held that the said claim for return of gold ornaments and the abovesaid amount of Rs.2 lakhs is liable to be rejected.
7. After hearing both sides, this Court is of the view that the abovesaid approach and conclusion made by the learned Magistrate cannot be faulted and it cannot be branded as an unreasonable or perverse decision. Hence, no interference is called for regarding the said finding.
Crl.R.P No.835 of 20145
8. However, the court below has found that the petitioner (PW1) in her oral evidence has convincingly stated that she has observed iddath for a period of three months soon after the dissolution of the marriage granted by the Family Court and that the court finds no reasons whatsoever to disbelieve her version and that she is entitled for iddath period maintenance for three months. However, the court below has found that the iddath period maintenance is to be calculated only at the rate of Rs.3,000/- per month and has thus ordered that the respondent should pay only Rs.9,000/- (viz. Rs.3,000/- X 3 months = Rs.9,000/-) as iddath period maintenance. The said quantum of maintenance so arrived at by the court below would require enhancement for reasons to be stated by this Court hereinafter.
9. The court below has noted that the case of the petitioner is that the value of the Mahar was 5 sovereigns of gold ornaments and the same has not been paid by the 2 nd respondent till date, whereas, the 2nd respondent herein has taken the stand that the Mahar of 5 sovereigns of gold ornaments was given in favour of the petitioner at the time of solemnization of the marriage and that the Mahar was not deferred, as alleged by the petitioner herein. The court below found that the version of the petitioner cannot be believed and has acted upon Crl.R.P No.835 of 2014 6 the unilateral assertions of the 2nd respondent herein that the Mahar of 5 sovereigns of gold ornaments has been given in favour of the petitioner at the time of solemnization of the marriage itself.
10. After hearing both sides, this Court is constrained to take the view that the said approach made by the trial court is rather unreasonable and perverse. The court below on the one hand only believes the oral evidence given by the petitioner that she has observed iddath and therefore, she is entitled for iddath period maintenance. The said version of the petitioner was strongly opposed by the 2nd respondent herein still the court below found that the version of the petitioner herein regarding the observance of iddath is to be believed. However, for no proper reasons, the court below would take a contradictory stand on the other prayer and would hold that the version of the petitioner that the Mahar deferred cannot be believed and the version of the 2nd respondent herein that the Mahar was given in favour of the petitioner at the time of solemnization of the marriage itself is fully acted upon. Going by the yardstick taken by the court below in respect of the acceptability of the oral evidence of the petitioner herein regarding observance of iddath period, the approach made by the trial court to disbelieve her version regarding deferment of Mahar is Crl.R.P No.835 of 2014 7 unreasonable and perverse. Hence, this Court would reverse the said finding of the court below that the petitioner is not entitled in that regard and would order that the respondent should give the Mahar of 5 sovereigns of gold to the petitioner herein.
11. The last aspect is regarding the computation of the maintenance. The petitioner herein has taken out a case that the 2nd respondent herein was then employed in a Gulf country and that he was having an income of not less than Rs.1 lakh per month, whereas, the 2nd respondent herein has taken up a case that he was employed only as a Chef in a hotel and he was only getting Rs.8,000/- per month. The court below has noted that the 2nd respondent herein would require at least Rs.5,000/- per month towards his basic expenses and that he could have saved hardly about Rs.3,000/- per month. It is on this basis, the court below has taken the stand that the future maintenance amount as well as the iddath period maintenance amount should be computed at the rate of Rs.3,000/- per month. The abovesaid approach made by the trial court in reckoning the income of the 2 nd respondent herein is far from satisfactory and is not a reasonable approach and would require interdiction. Both sides have taken extreme contentions. On the one hand, the petitioner would contend that the income of the Crl.R.P No.835 of 2014 8 2nd respondent, who was then employed in a Gulf country comes to Rs.1 lakh per month, whereas the 2 nd respondent herein would go to the other extreme and say that he is hardly getting only Rs.8,000/- per month. It may not be right and proper for this Court to remit the matter to the trial court for this limited purpose, especially in view of the long pendency of the matter.
12. After hearing both sides, this Court is of the considered view that the then monthly income of the 2 nd respondent herein should have been reckoned at least as Rs.15,000/- per month and not at a low amount of Rs.8,000/- per month. In the instant case, the petitioner herein had secured divorce on 25.02.2011 based on the judgment and decree granted by the Family Court and she had remarried on 14.04.2012. Thus, the claim for future maintenance could be only for the period between 25.02.2011 and 14.04.2012, which comes to about 14 months. The 2nd respondent herein has not challenged the finding made by the court below that his monthly expenses cannot exceed Rs.5,000/- per month. Since that is the position, it has to be reckoned that the 2nd respondent herein could have easily saved at least Rs.10,000/- per month (Rs.15,000 - Rs.5,000 = Rs.10,000/-). Assuming that the 2nd respondent had other expenditure like taking care Crl.R.P No.835 of 2014 9 of his parents, etc., it has to be reckoned that at least the 2 nd respondent herein is liable to pay maintenance to the petitioner herein at the rate of Rs.6,000/- per month and not at the low amount of Rs.3,000/- per month, as determined by the trial court.
13. Accordingly, it is ordered that the petitioner will be entitled for fair and reasonable provision for future maintenance for the said period of 14 months, at the rate of Rs.6,000/- per month. Hence, for the said 14 months period, the petitioner is entitled for a total amount of Rs.84,000/- (viz. Rs.6,000 p.m. X 14 months = Rs.84,000/-). Further, it is ordered that the iddath period maintenance for three months should also be computed at the rate of Rs.6,000/- per month and since that is the position, the petitioner will be entitled to get an amount of Rs.18,000/- per month (Rs.6,000/- p.m. X 3 months = Rs.18,000/-) as iddath period maintenance. As held hereinabove, the finding made by the court below that the petitioner herein is not entitled to secure the prayers for return of gold ornaments and for return of money of Rs.2 lakhs, cannot be interfered by this Court for the aforestated reasons.
14. Accordingly, the following directions and orders are passed :
(i) The plea of the petitioner for return of gold ornaments and for Crl.R.P No.835 of 2014 10 return of Rs.2 lakhs has been rightly rejected by the trial court.
(ii) The 2nd respondent herein should pay the Mahar value of 5 sovereigns of gold to the petitioner, without any further delay.
(iii) The 2nd respondent herein is liable to pay iddath period maintenance to the petitioner herein for three months, coming to a total amount of Rs.18,000/- per month.
(iv) The 2nd respondent herein is liable to pay the petitioner a total amount of Rs.84,000/- by way of fair and reasonable provision for future maintenance for the abovesaid 14 months period.
(v) The findings and orders made by the Chief Judicial Magistrate, Kasaragod as per the impugned order dated 21.02.2014 in M.C.No.3/2012 will stand modified, as directed hereinabove.
15. The learned counsel for the 2nd respondent submits that the the 2nd respondent is now without employment and that he finds it extremely difficult to immediately pay the amounts concerned to the petitioner and seeks for time of at least six months to pay the due amounts to the petitioner herein. This is opposed by the petitioner. It Crl.R.P No.835 of 2014 11 has to be borne in mind that the impugned order in this case has been rendered by the trial court as early as on 21.02.2014. The 2nd respondent herein has not challenged the said order and he should have at least immediately paid the amounts covered by the impugned order. That does not appear to have been done. Hence, time as sought for by the 2nd respondent cannot be granted. However, taking note of the submissions made by the respondent's counsel that the 2nd respondent has lost his employment, it is ordered that the 2nd respondent should pay 50% of the abovesaid amounts to the petitioner by depositing the same before the court below concerned, within three months and the balance 50% of the due amounts, by depositing the same before the court below, within three months thereafter. On such deposits, the trial court should release the said amount to the petitioner herein. However, in case, the 2 nd respondent does not pay 50% of the total due amounts to the petitioner, within the initial time limit of three months, then the petitioner will be at liberty to forthwith thereafter set in motion execution proceedings for realizing the amounts due.
16. The Registry will forward a certified copy of this order to the Chief Judicial Magistrate's Court, Kasaragod, who has dealt with Crl.R.P No.835 of 2014 12 M.C.No.3/2012, for necessary information and further action.
With these observations and directions, the above Criminal Revision Petition will stand finally disposed of.
Sd/-
ALEXANDER THOMAS JUDGE vgd