Partly allowed

Abdul Khader v. Vaheeda

Kerala HC9 Nov 2020Crl.MC/2803/2017

Case brief

AI extract

What is this about?

The High Court of Kerala quashed, in revision under Section 482 CrPC, lower court orders directing the petitioner to return matrimonial gold and pay money. The court found the evidence supporting the claim perverse and inconsistent with the divorce promissory note, while preserving maintenance directions.

What did the court decide?

The impugned orders directing the petitioner to pay Rs.50,000 and return 3.5 sovereigns of gold were set aside and quashed. The maintenance order remains valid.

Abdul Khader Vs Vaheeda — Matrimonial and Divorce | Kerala HC (2020)

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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 ALEXANDER THOMAS

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MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942

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Crl.MC.No.2803 OF 2017

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AGAINST THE ORDER IN CRRP 38/2014 DATED 27.01.2017 OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA

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AGAINST THE ORDER IN MC 7/2010 DATED 10.03.2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, CHALAKUDY

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PETITIONER/S:

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ABDUL KHADER

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S/O. AHAMMED, AGED 54 YEARS, ALATH VEETTIL, KAILIYAD DESOM,KARUVATTUR AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER

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RESPONDENT/S:

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1 VAHEEDA D/O. KUNJIKKAYI, AGED 39 YEARS, AREEPPURATH HOUSE,MALA PALLIPPURAM DESOM, VADAMA VILLAGE, MUKUNDAPURAM TALUK.

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

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R1 BY ADV. SRI.K.M.FIROZ R1 BY ADV. SMT.M.SHAJNA

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OTHER PRESENT:

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SRI.B.JAYASURYA, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.2803/2017

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ALEXANDER THOMAS, J.

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Crl. M.C. No.2803 of 2017

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Dated this the 09^th day of November, 2020

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O R D E R

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The prayer in the aforecaptioned Criminal

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Miscellaneous Case filed on 07.04.2017, under Section 482 of the Code of Criminal Procedure (Cr.P.C.), is as follows:-

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"…...........to set aside Annexure A4 order dated 27.01.2017 in Crl.R.P. No.38/2014 of Additional Sessions Court, Irinjalakkuda and Annexure A3 order dated 10.03.2014 in M.C. No.7/2010 of Judicial First Class Magistrate Court, Chalakkudy to the extent of directing the petitioner to pay Rs.50,000/- and return 3 ½ sovereigns of gold ornaments or an amount of Rs.40,000/- as the value of gold ornaments to the 1^st respondent, so as to secure the ends of justice.”

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Heard Sri.C.A. Chacko, learned counsel appearing

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for the petitioner, Sri.K.M.Firoz, learned Advocate appearing for contesting respondent No.1 and Sri.B.Jayasurya, learned Public Prosecutor appearing for the 2^nd respondent-State of Kerala.

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The petitioner had earlier married the first respondent in accordance with the Muslim Customary laws and rites. Later, matrimonial disputes arose between them and the

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Crl.MC.No.2803/2017

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petitioner had divorced the 1^st respondent on 05.02.2008. Subsequently, the 1^st respondent has filed Annexure A-1, M.C. No.7/2010 under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, before the Judicial First Class Magistrate Court, Chalakkudy, claiming that the petitioner herein/respondent therein should pay maintenance amount and fair and reasonable provision coming to an amount of Rs.2,50,000/- and Rs.4,000/- per month for 3 months (totaling to Rs.12,000/-) during the iddat period. Further, the 1^st respondent has also sought for recovery of an amount of 50,000/- and 3.5 sovereigns of gold ornaments or its equivalent market value, on the plea that the said amount and the said gold ornaments were entrusted by her to the petitioner herein.

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The learned Magistrate has passed the impugned Annexure A-3 final order dated 10.03.2014 in M.C. No.7/2010, whereby it was ordered that an amount of Rs.60,000/- is to be paid to the 1^st respondent herein as maintenance and fair and reasonable provisions. Further that an amount of Rs.50,000/and 3.5 sovereigns of gold ornaments or an amount of Rs.40,000/- as the value of gold ornaments should be given to

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Crl.MC.No.2803/2017

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the 1^st respondent. In the course of the abovesaid proceedings the 1^st respondent had admitted that she had already received the iddat period benefit and therefore, the said amount was not granted.

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Being aggrieved by the Annexure A-3 order dated 10.03.2014, rendered by the Judicial First Class Magistrate Court, Chalakkudy, in M.C. No.7/2010, the petitioner herein had filed Crl. Revision Petition No.38/2014 before the Additional Sessions Court, Irinjalakkuda. In the said appellate proceedings the petitioner herein had taken up the stand that he is not pressing the challenge made against the award of the amount of Rs.60,000/- towards maintenance amount and fair and reasonable provision and that is presumably for the challenge for the return of the abovesaid amount of Rs.50,000/and 3.5 sovereigns of gold. The appellate court has passed Annexure A-4 final order dated 27.01.2017 in Crl.R.P. No.38/2014, whereby the said plea of the petitioner herein has been repelled. Being aggrieved by the said orders, the petitioner has filed the above Criminal Miscellaneous Case under Section 482 of the Cr.P.C.

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Crl.MC.No.2803/2017

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After hearing both sides and after going through the pleadings and materials on record, it is seen that the specific case of the 1^st respondent herein was to the effect that an amount of Rs.50,000/- and 3.5 sovereigns of gold ornaments was entrusted to the petitioner herein after her marriage and that after the dissolution of the marriage, the petitioner has not returned the said amount and that therefore, direction should be issued to ensure the return of the abovesaid amount and the gold ornaments or its equivalent market value.

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The case set up by the petitioner was that after the divorce on 05.02.2008, the petitioner had come to an agreement with the 1^st respondent herein and her father and had executed Ext.P-3 promissory note dated 03.03.2008, undertaking that he would repay the abovesaid amounts due in that regard. Further, the 1^st respondent herein has tendered evidence as PW1 and father of the 1^st respondent has also tendered evidence as PW2. PW1 & PW2 has given their oral evidence in support of the plea.

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According to the petitioner he was forced and caused

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to sign Ext.P-3 dated 03.03.2008 and immediately thereafter,

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Crl.MC.No.2803/2017

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he has caused to send Ext.D-1 reply notice cautioning the 1^st respondent and her father that the abovesaid Ext.P-3 has been executed by the petitioner herein not voluntarily but out of threatened coercion and that the said document shall not be acted upon or used against the petitioner. Ext.D-2 is stated to be the postal receipt and Ext.D-3 is the acknowledgment card evidencing the issuance of Ext.D-1 reply notice.

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Further, cardinally the case of the petitioner is that a reading of Ext.P-3 itself would belie the case of the 1^st respondent and it would affect the very believability and credibility of the evidence given by both PW-1 and PW-2.

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After hearing parties and going through the materials on record, it is seen that a reading of Ext.P-3 dated 03.03.2008 would make it clear that it is a promissory note said to have been executed by the petitioner in favour of the father of the 1^st respondent herein stating that on 03.03.2008 he had borrowed an amount of Rs.70,000/- from the father of the 1^st respondent and that he would undertake to repay the said amount along with the interest thereon. Therefore, taking Ext.P-3 document at its face value it would show that the said

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document relied on by none other than the 1^st respondent herein/petitioner therein would belie the very case of the 1^st respondent herein regarding the issue at hand. The matrimonial relationship was dissolved on 05.02.2008. If that be so, ordinarily, it is not believable that a father of a divorced lady like the 1^st respondent would lend an amount of Rs.70,000/- to a party like the petitioner, who has already divorced his wife. Therefore, the very case set up in Ext.P-3 does not appeal to common sense and logic and lacks credibility and believabililty. That apart, the case set up in Ext.P-3 is that the petitioner herein had borrowed an amount of Rs.70,000/on 03.03.2008 from the father of the 1^st respondent herein. There is no reference or averment in Ext.P-3 that the said promissory note has been allegedly executed by him promising to repay the amount of Rs.50,000/- and 3.5 sovereigns of gold ornaments or its equivalent market value, which was entrusted to him earlier. Whereas the case set up by the 1^st respondent is that Ext.P-3 would evidence the factum of the admission made by the 1^st respondent that an amount of Rs.50,000/- and 3.5 sovereigns of gold ornaments were entrusted to him and that he

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would unconditionally agree to repay the amounts in question. Therefore, the very substratum of the case put forward by the 1^st respondent as regards the claim of the entrustment of Rs.50,000/- and 3.5 sovereigns of gold ornaments would more or less crumble to the ground.

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Sri.K.M. Firoz, learned counsel appearing for the 1^st respondent would strongly urge that even dehors Ext.P-3 that even if Ext.P-3 is to be excluded, the 1^st respondent herein and her father has tendered evidence as PW-1 and PW-2 respectively before the court below and that the courts below has placed reliance on the said oral evidence given by those parties and has acted upon the same in granting the directions and orders in favour of the 1^st respondent. After consideration of the rival pleas in that regard this Court is of the considered view that since Ext.P-3 itself would belie the very case set up by the 1^st respondent and even if Ext.P-3 is taken in its face value, it is very difficult to swallow the story put out therein that after the divorce on 05.02.2008, the father of the 1^st respondent has advanced a loan amount of Rs.70,000/- to the petitiosner herein and that consequently the petitioner has undertaken to

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repay the same amount by execution of the alleged promissory note in question. The said version put up in Ext.P-3 itself lacks credibility and believability. The 1^st respondent had totally placed reliance on Ext.P-3 as their trump card. When the very case set up in Ext.P-3 itself is not believable and lacks credibility, this Court is of the considered view that both the courts below have egregiously erred in placing reliance on their evidence which is totally bereft of credibility and believability. The said appreciation of evidence made by the court below and the consequential fact findings made thereon on that basis is highly perverse and unreasonable and which is liable for interdiction in this revisional proceedings.

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The petitioner herein has not challenged the directions in the impugned orders as regards the order to pay an amount of Rs.60,000/- towards maintenance amount and fair and reasonable provision. The controversy in this revision petition is limited only to the direction regarding return of Rs.50,000/- and 3.5 sovereigns of gold ornaments. Apart from the abovesaid aspects, there are certain variances in the case set up by the 1^st respondent as well as the subsequent evidence

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Crl.MC.No.2803/2017

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regarding the alleged entrusting of the abovesaid gold articles and in the light of the view already taken by this Court, there is no necessity for this Court sitting in revision to enter into those factual aspects.

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The upshot of the above discussion is that the findings made by the courts below in favour of the 1^st respondent regarding the return of the amount of Rs.50,000/and 3.5 sovereigns of gold ornaments is vitiated by perversity and unreasonableness and thus, the same is liable for interdiction at the hands of this Court, sitting in revision.

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In that view of the matter, it is ordered that the impugned orders at Annexures A-3 & A-4 to the limited extent it directs the petitioner herein to pay the abovesaid amount of Rs.50,000/- and to return 3.5 sovereigns of gold ornaments or its equivalent market value will stand set aside and quashed.

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It is made clear that this Court has not, in any manner, interfered with the directions in the impugned orders for payment of the maintenance amount and fair and reasonable provision coming to Rs.60,000/-. In case, the petitioner has not, so far, paid the said amount, he shall pay it

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Crl.MC.No.2803/2017

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immediately, at any rate within 3 weeks from the date of receipt of a copy of this judgment, failing which, the 1^st respondent will be at liberty to file appropriate execution petition before the Judicial First Class Magistrate Court, Chalakkudy, who has dealt with M.C. No.7/2010. The time limit of 3 weeks shall be computed with reference to the date of receipt of a copy of this order by the learned Magistrate.

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The Registry will forward a copy of this order to the Judicial First Class Magistrate Court, Chalakkudy, who has dealt with M.C. No.7/2010, for necessary information.

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With these observations and directions, the above criminal miscellaneous case will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

Skk//27112020

Crl.MC.No.2803/2017

APPENDIX

PETITIONER'S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF MC NO. 7/10 FILED BY 1ST RESPONDENT.

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ANNEXURE A2 TRUE COPY OF OBJECTION FILED BY PETITIONER IN MC NO. 7/2010.

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ANNEXURE A3 TRUE COPY OF ORDER DATED 10/3/2014 IN MC NO. 7/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKKUDY.

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ANNEXURE A4 CERTIFIED COPY OF ORDER DATED 27/1/2017 IN CRL.R.P NO. 38/2014 OF ADDITIONAL SESSIONS COURT, IRINJALAKKUDA.

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ANNEXURE A5 TRUE COPY OF PROMISSORY NOTE DATED 3.3.2008, MARKED AS EXHIBIT P3 IN MC.NO.7/2010 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKKUDY.

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RESPONDENTS' EXHIBITS: NIL

Abdul Khader v. Vaheeda

Case brief

What is this about?

What did the court decide?

Abdul Khader v. Vaheeda

Case brief

What is this about?

What did the court decide?

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