Dismissed

Pulpara Ahammedkutty v. Mampadan Kadeeja

Kerala HC23 Mar 2009Crl.MC/3913/2006

Case brief

AI extract

What is this about?

High Court dismissed a criminal miscellaneous petition seeking to quash maintenance orders. The Court held that the inherent powers under Section 482 CrPC should not be invoked to re-examine evidence or findings on limitation already settled by lower courts.

What did the court decide?

The criminal miscellaneous petition was dismissed without any order of maintenance modification.

Pulpara Ahammedkutty Vs Mampadan Kadeeja — Maintenance and Alimony | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MRS. JUSTICE M.C.HARI RANI

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MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931

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Crl.MC.No. 3913 of 2006()

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------------------------CRRP.6/2004 of ADDL.SESSIONS COURT(ADHOC)II, MANJERI MC.25/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI

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PETITIONER/REVISION PETITIONER: RESPONDENT:

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PULPARA AHAMMEDKUTTY,

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S/O. MOHAMMED MOLLA, PEMMULLE P.O., EDAYATHUR, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.

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BY ADV. SRI.SAJU.S.A

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RESPONDENT/RESPONDENT/ PETITIONER:

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MAMPADAN KADEEJA, D/O. ALAVI, MAMPADAN HOUSE, KARAVAN CHOLA, NEELANCHERI, KALIKAVE, NILAMBUR TALUK, MALAPPURAM DISTRICT.

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ADDL.R2:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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(IMPLEADED AS ADDL.RESPONDENT NO.2 AS PER ORDER DATED 28.11.2006 IN CRL.M.A.NO.6939/06)

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ADV. SRI.K.P.MUJEEB FOR R1

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PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU FOR R2

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ORDER ON CRL.M.A.NO.7070/06 IN CRL.M.C.NO.3913/06

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//DISMISSED//

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23.3.09 SD/-M.C.HARI RANI, JUDGE.

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TRUE COPY

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P.A.TO JUDGE

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M.C.HARI RANI, J.

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-----------------------------------------------------

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CRL.M.C.No.3913 OF 2006

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DATED THIS THE 23^rd DAY OF MARCH, 2009

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O R D E R

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The petitioner is the revision petitioner in Crl.R.P.No.6/2004 on the file of the Additional Sessions Court (Adhoc)II, Manjeri and respondent in M.C.No.25/02 on the file of J.F.C.M.-I, Manjeri. The first respondent herein is the first respondent in the Crl.R.P. and the petitioner in the M.C. M.C.No.25/02 was filed by the first respondent herein against the petitioner under Section 3(1) of Muslim Women (Protection of Rights on Divorce) Act. The prayer in this petition is to quash the order in Crl.R.P.No.6/04 on the file of Additional Sessions Judge (Adhoc)II, Manjeri and the order in M.C.No.25/02 on the file of J.F.C.M.-I, Manjeri.

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When this petition came up for hearing today, there was no representation for the petitioner and the counsel was also absent. On the last hearing date also there was no representation for the petitioner. Counsel for the first respondent is present. Argument advanced by the learned counsel for the first respondent is heard.

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Crl.M.C.No.3913/06 2

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This Court as per order dated 29.11.2006, ordered as follows:

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“Execution of the impugned order shall stand suspended on condition that the petitioner deposits the entire amount payable under the impugned order (of course less the amount if any deposited already before the learned Magistrate within a period of 45 days from this date.)”

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Thereafter, this Court as per order dated 5.3.2009, ordered as follows:

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“The Registry to verify whether any amount is deposited by the petitioner before the J.F.C.M.-I, Manjeri in M.C.No.25/02 in pursuance of the order of this Court dated 29.11.2006. If no such amount is deposited, whether the order of that Court dated 15.10.2003 is executed or not.

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Consequent to that direction, the learned J.F.C.M.-I, Manjeri has

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reported on 16.3.2009 as follows:

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“ It appears from the records that the respondent has

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not paid any money before this Court towards the

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Crl.M.C.No.3913/06

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money due as per the condition precedent imposed in Crl.M.C.No.3913/06. Towards the total amount of Rs.3,15,000/- to be recovered from the respondent as per the order, the respondent has so far paid an amount of Rs.2,10,000/- and a balance of Rs.1,05,000/- remains to be recovered from the respondent. The execution petition pending before this Court stands posted for payment of balance to 21.3.2009.”

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The grievance of the petitioner in this petition is that the maintenance was claimed by the first respondent herein for a marriage and divorce that occurred 27 years back and that the marriage and divorce has not been proved properly. Copy of the order dated 15.10.2003 in M.C.No.25/02 is produced as Annexure I. Copy of the common order in Crl.R.P.Nos.6/04 and 28/04 passed on 20.6.2006 by the learned Additional Sessions Judge (Adhoc)II, Manjeri, is produced as Annexure II. As per Annexure I order, the learned Magistrate has considered the evidence adduced on the side of the petitioner as PWs 1 to 4 and also Exhibit P1 marriage certificate and the evidence of RW1 and

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Crl.M.C.No.3913/06 4

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allowed the petition, whereby the respondent therein was directed to pay Rs.15,000/- as maintenance during the period of iddath to the tune of Rs.5,000/- per month. He was also directed to make the payment of Rs.3,00,000/- as Mathah to the petitioner.

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The petitioner and respondent challenged that finding by filing criminal revision petitions before the Sessions Court. Both petitions were dismissed by the learned Additional Sessions Judge (Adhoc)II, Manjeri on 20.6.2006 as revealed from Annexure-2. Thus, the petitioner herein is challenging the concurrent finding of the courts below.

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It is true that a second revision is not maintainable and that may be the reason for filing a petition by the petitioner under Section 482 of Cr.P.C., who is the respondent in the M.C. and the revision petitioner in Crl.R.P.No.6/04 before the revisional court.

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The learned counsel for the first respondent has relied

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on the decision reported in Hassainar v. Raziya (1993(2) KLT 805) wherein it is held as follows:

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”Date on which the right to apply accrues is not to be

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Crl.M.C.No.3913/06

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ascertained with any fixed formula in all cases, as it depends on the facts of each case. The effort to be made is to extend the remedy provided by law and not to scuttle it. To secure the ends of justice the words “right to apply accrues” in the third column of the Article should be construed as liberally as possible so that the right to apply is put in such a way as to make the remedy available to the party. The right to apply accrued when the dispute had arisen. “A dispute arises where there is a claim and denial or repudiation of the claim. Here the right to apply would have accrued only when the petitioner has refused to pay the reasonable and fair provision and maintenance. Petitioner has no case that he refused to make such payment at any time before three years counted backwards from the date of application. As such, the claim is not barred by limitation. That apart, even if the claim was barred by limitation, it is open to the first respondent to satisfy the court that she has sufficient cause for not making the application within three years from the date of accrual of the right to apply.”

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In the light of the above said decision, the contention raised by

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the petitioner's counsel in this petition regarding the delay of 27 years is of no consequence. Further, both the courts below have

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considered the question of limitation and discussed the matter in Annexures-1 and 2. The petitioner herein, who is the respondent in M.C.No.25/02 has not even entered into the witness box and RW1 examined on the side of the respondent is his power of attorney holder. The quantum of amount has been arrived at by the learned Magistrate, which is confirmed by the revisional court after considering the financial capacity of the petitioner herein. It is submitted by the learned counsel for the first respondent that she has not remarried yet and is the divorced wife of the petitioner herein. All these aspects were considered in detail by the courts below on the basis of the evidence adduced by the parties. A reappraisal of the evidence cannot be made by invoking the power under Section 482 of Cr.P.C. Therefore, nothing has been shown to exist for this Court to invoke the power under Section 482 of Cr.P.C. to interfere with the concurrent findings of the courts below. In these circumstances, I am of the view that the courts below have committed no error in coming to the conclusion and directed the petitioner herein to pay Rs.15,000/- as maintenance during the period of iddat at the rate of Rs.5,000/- per month and to make a payment of Rs.3

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lakhs as Matah. In the absence of any evidence to deviate from that conclusion, I find that no interference is required by this Court under Section 482 of Cr.P.C. and this petition is liable to be dismissed.

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In the result, the Crl.M.C. is dismissed.

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M.C.HARI RANI, JUDGE.

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dsn

Pulpara Ahammedkutty v. Mampadan Kadeeja

Case brief

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Pulpara Ahammedkutty v. Mampadan Kadeeja

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