Dismissed

K.T.Ali v. Aaminakutty and Another

Kerala HC22 Nov 2011Crl.MC/1529/2009

Case brief

AI extract

What is this about?

The Kerala High Court dismissed the revision petition challenging a divorced wife's entitlement to maintenance, reasonable and fair provision, and return of alleged jewelry and cash. The court upheld the lower courts' findings as sustainable and not perverse.

What did the court decide?

Criminal Misc. case No. 1529 of 2 Impugned orders passed by Magistrate and Sessions Court were not interfered with.

K.T.Ali Vs Aaminakutty and Another — Maintenance and Alimony | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN

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TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933

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Crl.MC.No. 1529 of 2009()

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------------------------------CRRP.38/2006 of SESSIONS COURT, PALAKKAD MC.71/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI

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PETITIONER(S): PETITIONER

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

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K.T.ALI, S/O.ABDUL RAHMAN, AGED 48 YEARS, KALATHILTHODI HOUSE, KARAKKAD, PALLIPPURAM AMSOM, PATTAMBI, OTTAPALAM TALUK.

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BY ADV. SRI.JACOB SEBASTIAN

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RESPONDENT(S): COUNTER PETITIONER

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

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1. AAMINAKUTTY, D/O.MOIDEENKUTTY, AGED 35 YEARS, KAKKADATH HOUSE, NETHIRIMANGALAM, OTTAPALAM TALUK.

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2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R2 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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svs

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N.K.BALAKRISHNAN, J.

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Crl.M.C.No.1529 of 2009

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Dated this the 22^nd day of November, 2011

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Order

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The petitioner is the former husband. The petition was filed by the first respondent herein before JFCM Court, Pattambi claiming maintenance for iddah period, fair and reasonable provision, value of gold ornaments and another sum of Rs.65,000/- which was stated to have been given to the petitioner by the parents of the first respondent at the time of marriage. Before the learned Magistrate, the petitioner therein, her father and others were examined as P.Ws.1 to 5. The petitioner herein was examined as C.P.W.1. Exts.P1 to P7 were also marked.

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The fact that the petitioner herein pronounced talaq was not disputed. The fact that the first respondent, divorced wife, is entitled to maintenance for the iddah period also cannot be disputed. The learned Magistrate fixed the amount payable as maintenance for iddah period at Rs.1250/- per month. The learned Magistrate directed the petitioner herein to pay

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Crl.M.C.1529/2009

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Rs.50,000/- as reasonable and fair provision. There was a further claim for Rs.65,000/- which was the amount obtained by the petitioner from the first respondent. Since that claim was found to be true, the learned Magistrate directed the petitioner to pay that amount. The first respondent had also contended that the gold ornaments weighing 18 sovereigns were not returned by the petitioner and as such she is entitled to get return that amount. On the basis of the evidence tendered by the wife, the learned Magistrate allowed that claim. Challenging the said order, the petitioner filed revision petition before the learned Sessions Judge. The learned Sessions Judge after reappreciation of the evidence concurred with the order passed by the learned Magistrate. The learned counsel for the petitioner submits that the petitioner has no income and was not doing any business as alleged by P.W.1. The order earlier passed by the learned Magistrate was set aside by the learned Sessions Judge and the matter was remanded to the court below to enter a definite finding on point No.2. It was thereafter the learned Magistrate passed the order directing payment of the amounts as mentioned

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Crl.M.C.1529/2009 3

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above. According to the petitioner, there is no justification for ordering return of Rs.65,000/- since there is no acceptable evidence to show that the amount was obtained by the petitioner. It is further argued that the evidence given by P.W.1 that her gold ornaments being 18 sovereigns were taken by the petitioner herein is not supported by any acceptable evidence and so that order is also unsustainable. It is further argued that the amount of Rs.50,000/- fixed by the court below as reasonable and fair provision is also not based on evidence actually produced before the court but only on the basis of mere assumptions and surmises. Unless the court finds that the petitioner is having sufficient means to pay the amount, the court below should not have directed the petitioner to pay that much amount, the learned counsel argues.

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Though notice was sent to R1, it was returned with endorsement 'insufficient address'. This is a case where the evidence given by P.Ws.1 to 5 and Exts.P1 to P7 were duly considered by the learned Magistrate. The fact that the first respondent is the divorced wife is not disputed. As such, she is

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Crl.M.C.1529/2009

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entitled to maintenance for iddah period. The amount ordered under those two heads cannot be said to be excessive. The learned Sessions Judge has also considered the entire evidence in detail. The amount of Rs.1250/- for maintenance during iddah period cannot be said to be excessive. That much amount is the barest minimum amount that requires for her sustenance, to keep her body and soul together. Considering the depreciation in money value and escalation in prices, the total amount of Rs.50,000/- determined as reasonable and fair provision cannot, at any rate, be held to be excessive. Therefore, the amounts so ordered by the learned Magistrate was rightly accepted by the learned Sessions Judge. I find no reason to differ from the views taken by the two courts below.

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The main challenge is with regard to Rs.65,000/- which was the amount alleged to have been obtained by C.P.W.1 from the first respondent herein. According to the first respondent, at the time of marriage gold ornaments weighing 18 sovereigns were given to P.W.1 and those ornaments were appropriated by the petitioner therein. The evidence given by P.W.1 was

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Crl.M.C.1529/2009

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corroborated by the father who was examined by P.W.2. Evidence was also given to the effect that a total sum of Rs.65,000/- was given by P.W.2 to C.P.W.1 on several occasions while P.W.1 and C.P.W.1 were living together. Though P.W.2, the father was cross-examined in extenso, nothing was brought out to disbelieve his evidence. The learned counsel for the petitioner submits that P.W.2, the father of P.W.1 has chosen to depose falsely in court

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only to support the false claim of the first respondent herein. The fact that even members of the middle class family used to give gold ornaments weighing 25 sovereigns to the girl at the time of marriage cannot be disputed at all. The learned Magistrate has also taken note of that point. There was no case that no gold ornaments were given to P.W.1 at the time of marriage. With regard to the appropriation or retention of gold ornaments by C.P.W.1, no documentary evidence can be expected to be produced. It will certainly depend upon the credibility and acceptability of the oral evidence of the parties. Two courts below after a thorough analysis of the evidence accepted their version as true. The finding of fact arrived at by the two courts is not

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Crl.M.C.1529/2009

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wholly erroneous or perverse so as to justify interference by this court under Section 482 Cr.P.C. As such, I find no reason to interfere with the impugned order. The Crl.M.C. is accordingly dismissed.

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N.K.BALAKRISHNAN, JUDGE.

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srd

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Crl.M.C.1529/2009 7

K.T.Ali v. Aaminakutty and Another

Case brief

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K.T.Ali v. Aaminakutty and Another

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