Allowed

Razeena Ali, v. Jubeesh

Kerala HC23 Nov 2021OP(Crl.)/63/2021

Case brief

AI extract

What is this about?

The High Court of Kerala quashed a Magistrate order permitting a husband to reopen evidence and recall his wife for cross-examination in a maintenance proceeding. The wife lived abroad, and the husband's linked criminal complaints were set aside as false.

What did the court decide?

Quashed the order allowing re-cross examination of the petitioner and denied the respondent's application to reopen evidence.

Razeena Ali, Vs Jubeesh — Matrimonial and Divorce | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE M.R.ANITHA

¶4

TUESDAY, THE 23^RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943

¶5

OP(CRL.) NO. 63 OF 2021

¶6

AGAINST THE ORDER/JUDGMENT IN CMP NO.28/2021 & 35/2021 IN MC 93/2015 OF

¶7

JUDICIAL MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM

¶8

PETITIONER/RESPONDENT:

¶9

RAZEENA ALI, AGED 33 YEARS D/O. HAMSATH ALI, ARATHODI VEEDU, PATHIRIPPALA, OTTAPALAM, PALAKKAD DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER AND FATHER HAMSATH ALI, S/O SULAIMAN, AGED 66 YEARS, RESIDING IN THE ABOVE ADDRESS. BY ADVS. K.MOHANAKANNAN SRI.P.T.SHAHUL HAMEED

¶10

RESPONDENT/PETITIONER:

¶11

JUBEESH, AGED 41 YEARS S/O. ISMAIL, 3/330, SAHYADRI COLONY, CHANDRANAGAR, PALAKKAD - 678007. BY ADV SRI.NIREESH MATHEW

¶12

THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 23.11.2021, THE

¶13

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

O.P.(CRL.)No.63 OF 2021

¶15

¶16

JUDGMENT

¶17

This original petition has been filed against Ext.P3 order dated 21.01.2021 in CMP Nos.28/2021 & 35/2021 in MC No.93/2015 passed by the Judicial Magistrate of First Class-I, Ottapalam, by which, the learned Magistrate allowed the petition to reopen the evidence in M.C.No.93/2015 and to recall PW1 for further cross-examination.

¶18

As per the averments in the M.C., the petitioner - wife alleged that the respondent – husband and his relatives have committed the offence punishable under Section 498-A r/w.34 IPC. It is stated by the respondent that the petitioner's complaint was referred by the police after investigation. Her case was further re-investigated twice by two superior officers and the was found to be false. During investigation, police have recovered several documents and recorded statements. So it is necessary to confront the petitioner with reference to said materials. Hence, for that purpose, the respondent herein filed CMP No.28/2021 to re-open the petitioner's evidence in MC No.93/2015 and CMP 35/2021 to recall the petitioner for further

¶19

¶20

O.P.(CRL.)No.63 OF 2021

¶21

cross examination.

¶22

The petitioner/wife filed objection to the petition contending that she was cross examined for two days during petitioner's evidence and presently she is residing abroad with her husband and she will be back only in 2022 and knowing all those facts the respondent filed the above petitions to drag the proceedings. It is also contented that the evidence collected and statements recorded during investigation by police cannot be used by the respondent in this proceedings.

¶23

After hearing both sides, the learned Magistrate found it necessary to allow those petitions and allowed the petitions with a condition to pay cost of Rs.3,000/- to the petitioner. Aggrieved by the same, this original petition has been filed.

¶24

Heard both sides.

¶25

According to the learned counsel for the petitioner, M.C.No.93/2015 was filed under Section 3 of the Muslim Women

¶26

(Protection of Rights on Divorce) Act, 1986 (in short, 'the Act'), claiming 190 sovereigns of gold or its value and for return of money. Petitioner through her power of attorney holder, father, had filed counter to Ext.P1 stating that she was examined on 27.04.2018 and 16.05.2018 and documents were also marked

¶27

O.P.(CRL.)No.63 OF 2021

¶28

¶29

and petitioner's side witnesses were examined on 30.08.2018 and 18.09.2019 and they they were also cross examined and evidence was closed. Thereafter she went abroad and is now living with her 2^nd husband and child.

¶30

So the only question that arises for consideration in this original petition is as to whether any interference is warranted in impugned Ext.P3 order. Admittedly the proceedings filed by the petitioner is one under Section 3 of the Act. It is a summary proceeding to be completed within a time bound manner.

¶31

It has been found while disposing O.P.(Crl.)No.22/2021, which was heard alongwith this case that the documents sought to be confronted with PW1 is the records in crime registered u/s.498A IPC against the respondent/husband which admittedly had been referred as false. In view of the judgment in O.P. (Crl.)No.22/2021 setting aside Ext.P5 order, this relief to recall PW1 practically has become infructuous also. Though the learned counsel placed reliance on V.N. Patil v. K. Niranjan Kumar & Ors. [(2021) 3 SCC 661] it has no applicaiton to the case in hand. It is well settled that the discretionary power vested under Section 311 Cr.P.C has to be exercised judiciciously

¶32

¶33

O.P.(CRL.)No.63 OF 2021

¶34

for strong and valid reasons and with caution and circumspeciton to meet the ends of jsutice. (See: Rajaram Prasad Yadav v. State of Bihar and Anr. [2014 SCC (Cri) 4 256].

¶35

For the reasons stated above, the impugned Ext.P3 order dated 21.01.2021 in CMP Nos.28/2021 & 35/2021 in MC No.93/2015 passed by the Judicial Magistrate of First Class-I, Ottapalam is hereby quashed.

¶36

Accordingly, this O.P.(Crl.) is allowed as above.

Sd/-

M.R.ANITHA

JUDGE

shg/

O.P.(CRL.)No.63 OF 2021

¶42

¶43

APPENDIX OF OP(CRL.) 63/2021

¶44

PETITIONER EXHIBITS
EXHIBIT P1	TRUE COPY OF THE CMP 25/21 AND 35/21 IN MC 93/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, II, OTAPALAM DATED 9.1.2021.
EXHIBIT P2	TRUE COPY OF THE COUNTER IN MC 93/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT.II, OTAPALAM.
EXHIBIT P3	TRUE COPY OF THE ORDER DATED 21.1.2021 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, OTAPALAM.
EXHIBIT P4	TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER DATED 27.1.2021 IN CMP 28 AND 35 OF 2021 IN MC 93/2015 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, OTAPPALAM.

Razeena Ali, v. Jubeesh

Case brief

What is this about?

What did the court decide?

Razeena Ali, v. Jubeesh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shijin Vs State of Kerala

Aneesh Vs the State of Kerala

Muhammed Basheer Vs State of Kerala

Dr. Razeena Ali, Vs Jubeesh

Albijin Vs State of Kerala

// of Sunil Babu Vs Renju