Remanded

Khadeeja v. K.T.C.Muhammedali

Kerala HC12 Jul 2010Crl.Rev.Pet/860/2003

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision petition against a Sessions Judge's order, which had set aside a Magistrate's award of maintenance on a finding that a settlement agreement was executed by the husband's wife. The Court held that the Sessions Judge should have remanded the case for an expert opinion on signature comparison instead of deciding it himself. The matter was remanded to the Mag

What did the court decide?

Criminal Revision Petition allowed; Order of Sessions Judge set aside; Case remanded to Magistrate for fresh disposal.

Khadeeja Vs K.T.C.Muhammedali — Matrimonial and Divorce | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 Crl.Rev.Pet.No. 860 of 2003()

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----------------------------M.C.98/97 OF Judicial First Class Magistrate, MALAPPURAM

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REVN. PETITIONER(S): ---------------------

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KHADEEJA D/O. PALLIPPURATH PARAMBA KOYAKUTTY, PUTHUKKODE P.O., AZHINJILLAM AMSOM AND DESOM, MALAPPURAM DISTRICT

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BY ADV. SRI.K.M.SATHYANATHA MENON

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RESPONDENT(S): --------------1. K.T.C.MUHAMMEDEALI S/O. ALAVI, PALAKKUTTIYIL, K.T.MANZIL, IKKARAPADI, MALAPPURAM DISTRICT

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

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R1 BY ADV. SRI.BABU S. NAIR R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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M.SASIDHARAN NAMBIAR,J.

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--------------------------------------------- CRL.R.P.NO.860 OF 2003 --------------------------------------------- Dated 12^th July, 2010

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O R D E R

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Revision petitioner is the divorced

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wife of first respondent. She filed M.C.98/1997 before Judicial First Class Magistrate, Malappuram under Section 3(1) of Muslim Women (Protection of Rights on Divorce) Act claiming maintenance for Iddath period as well as fair and reasonable provision and Rs.38,400/- being the value of 12 sovereigns of gold ornaments misappropriated by first respondent and Rs,5,000/- in cash. First respondent contended that marriage was dissolved at the instance of the petitioner and at the intervention of mediators, Ext.D2 agreement was entered into after receipt of the entire amount legally payable to the petitioner and therefore, she is not entitled to file a petition under Section 3

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CRRP 860/03

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(1)of the Act. Petitioner contended that she did not execute Ext.D2 and she did not receive any maintenance for the Iddath period or fair and reasonable provision which first respondent should make at the time of divorce and therefore, she is entitled to the amount claimed in the M.C.

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Learned Magistrate as per order dated 3/4/1999, rejected the claim for the amount claimed as value of gold ornaments misappropriated and cash and found that she is entitled to get maintenance for Iddath period and also reasonable and fir and reasonable provision, which was not made and paid by first respondent at the time of divorce. First respondent was directed to pay R.2,250/- as the maintenance for the Iddath period and Rs.45,000/being lump sum for fair and reasonable provision calculating at the rate of Rs.750/- per month for a period of five years. Dissatisfied with the quantum and refusal to grant an order for realisation of value of gold ornaments and cash, petitioner filed

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CRRP 860/03

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Crl.R.P.28/1999 before Sessions court, Manjeri.

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First respondent filed Crl.R.P.37/1999 challenging the order passed by the learned Magistrate on the ground that as the entire amount legally payable was paid, he is not liable to pay any amount. Before the revisional court, first respondent sought a remand to the trial court so that Ext.D2 could be sent to an expert and get an opinion whether signature and the thumb impression seen in Ext.D2 is that of the petitioner or not. Learned Sessions Judge instead of remanding the case, considered the evidence and found that though divorce was on 7/9/1979 petition filed under section 3(1) of the Act was filed only in 1997 and the inordinate delay of 18 years supports the case of the first respondent that there was an agreement providing fair and reasonable provision which was paid. Learned Sessions Judge also verified the signatures seen in Ext.D2 with the signature seen in the original petition filed before the learned

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CRRP 860/03

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Magistrate and found that it is one and the same and therefore Ext.D2 revision filed by first respondent was allowed and order passed by learned Magistrate, was set aside. Consequently, revision filed by the petitioner was dismissed. Wife has filed this revision petition challenging the order passed by the learned Sessions Judge.

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Revision petitioner has already

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availed the remedy of filing a revision as against portion of the order passed by the learned Magistrate rejecting the claim for value of gold ornaments and sufficiency of the fair and reasonable provision awarded by the learned Magistrate. As that revision was dismissed, revision petitioner is not entitled to challenge that order of the revisional court, to the extend of dismissing Crl.R.P.28/1999 as in law, no second revision will lie. But as against the order setting aside the order granting maintenance for the Iddath period and the fair and reasonable provision by he

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CRRP 860/03

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Judicial First Class Magistrate, Malappuram, a revision will lie especially when petitioner has already approached this court by filing Crl.M.C. under Section 482 of Code of Criminal Procedure and permission was sought to withdraw the petition with liberty to challenge the order of the learned Sessions Judge in Crl..R.P.37/1998 in the presence of the first respondent and it was granted. Therefore, to the extend of challenging the finding of the learned Sessions Judge that Ext.D2 was executed by the petitioner and first respondent has received the amount legally entitled to under Section 3(1) of the Act, revision will lie.

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Though learned counsel appearing for

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the petitioner argued that evidence establish that

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petitioner was not granted the maintenance for the Iddath period or fair and reasonable provision at the time of divorce and divorce was not at the instance of the petitioner and learned counsel appearing for the first respondent argued that it

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CRRP 860/03

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was petitioner who sought a divorce and yielding to the pressure of the petitioner, a divorce was effected and at that time entire amount legally payable was fixed and paid evidenced byExt.D2, on the evidence I find that learned Sessions instead of deciding the matter on the evidence should have remanded the case to the trial Magistrate as sought for. The learned Sessions Judge took up the responsibility of deciding whether Ext.D2 was executed by the petitioner and for that purpose even compared the signature of the petitioner seen in M.C filed before the learned Magistrate as well as the signature seen in Ext.D2 and entered a finding that signatures are that of the same person. I have perused signatures seen in Ext.D2 with the signatures of the petitioner in her

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depositions. First letter “kha” ( ) is seen differently written in Ext.D2 and in the signatures seen in the depositions. At the same time, that letter is seen written in Crl.M.C similar to the

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CRRP 860/03

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one written in Ext.D2 When learned Sessions Judge is comparing the signature and entering a finding without the aid of an expert, though Section 73 of Indian Evidence Act enables the court to compare the signature and to enter a finding and decided cases hold that court is an expert of the experts, when that onerous task is undertaken by the court without the aid of an expert, proper care and caution is to be taken. In such a case, learned Sessions Judge is bound to compare not only the signature seen in the Crl.M.C but the signatures seen in the vakalath as well as the deposition. Signatures seen in the deposition should definitely

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be that of the petitioner. It is more so, when Ext.D2 was not produced before the court when petitioner was examined as DW1 and she had no occasion to see Ext.D2 before affixing her signature in her deposition so as to change the signature to get over Ext.D2. When signature in the deposition differs from the signatures seen in

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CRRP 860/03

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Ext.D2 finding of the learned Sessions Judge based

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on comparison of the signature seen in Ext.D2 cannot hold good.

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the petitioner, then definitely there is force in the submission of the first respondent that she is

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not entitled to claim further amount. Though quantum of the amount payable and paid is not mentioned in Ext.D2, Ext.D2 shows that the amount legally payable was fixed and was paid. Therefore,

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question whether Ext.D2 was executed by the petitioner assumes importance and is very relevant in deciding the matter.

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Learned counsel appearing for the

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petitioner sought to decide that question by this court, but on the evidence it is not possible. Though PW1 was cross examined with regard to the agreement and she denied it, first respondent did

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not confront Ext.D2 to PW1 at that time. In fact Ext.D2 was produced before the court three months

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CRRP 860/03

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thereafter. Even the attestors to Ext.D2 were not put to PW1. In such circumstances, interest of justice warrants a remand so as to afford an opportunity to the parties to let in further evidence with regard to Ext.D2. First respondent is entitled to file an application before the learned Magistrate to send Ext.D2 to an expert to compare the signature seen in Ext.D2 with the admitted signature of the petitioner. Petitioner is at liberty to produce relevant documents containing signatures of the petitioner during the relevant period and if, any such document is produced, it shall also be sent to the expert. Similarly learned Magistrate has to send not only the signature seen in original petition but also the vakalath as well as at least some of the signatures in original depositions. Petitioner and first respondent are also entitled to let in further evidence if they are so advised.

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Revision is allowed. Order in

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CRRP 860/03

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Crl.R.P.37/1999 on the file of Sessions court, Manjeri dismissing M.C.98/1997 on the file of Judicial First Class Magistrate, Malappuram is set aside. M.C.98/1997 is remanded for fresh disposal in accordance with law. Parties are directed to appear before Judicial First Class Magistrate, Malappuram on 16/8/2010. Send back the records immediately.

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M.SASIDHARAN NAMBIAR, JUDGE.

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uj.

Khadeeja v. K.T.C.Muhammedali

Case brief

What is this about?

What did the court decide?

Khadeeja v. K.T.C.Muhammedali

Case brief

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What did the court decide?

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