Disposed

M.Basheer v. Jameela

Kerala HC11 Jul 2024Crl.Rev.Pet/181/2021

Case brief

AI extract

What is this about?

Revision petition against orders granting a wife protection order, Rs.5,000 monthly maintenance and Rs.3,000 rent under the DV Act. The court declined remand, confirmed maintenance at Rs.5,000 and reduced alternative-accommodation rent to Rs.2,000 per month.

What did the court decide?

Revision disposed: orders below confirmed with modification reducing alternative accommodation rent to Rs.2,000 per month; monthly maintenance of Rs.5,000 upheld.

M.Basheer Vs Jameela — Domestic Violence | Kerala HC (2024)

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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 P.G. AJITHKUMAR

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THURSDAY, THE 11^TH DAY OF JULY 2024 / 20TH ASHADHA, 1946

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CRL.REVISION PETITION NO. 181 OF 2021

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AGAINST THE JUDGMENT DATED 04.12.2020 IN CRA NO.34 OF 2016 OF THE ADDITIONAL SESSIONS COURT - IV, PALAKKAD ARISING OUT OF THE JUDGMENT DATED 06.01.2016 IN MC NO.40 OF 2012 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-II, PALAKKAD

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REVISION PETITIONER/APPELLANT/RESPONDENT:

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M.BASHEER AGED 54 YEARS

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S/O. MAJED (LATE) AGED 54, JEEVA BUS DRIVER, DOOR NO. 1/22, THELUNGU BRAHMANAR STREET, K.V. PALAYAM, SATYAMANGALAM, ERODE DISTRICT, TAMIL NADU STATE.

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BY ADVS. P.K.MOHANAN(PALAKKAD) ASHWIN SATHYANATH THAREEQ ANVER K.

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RESPONDENTS/RESPONDENTS/PETITIONER & STATE:

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1 JAMEELA AGED 50 YEARS D/O. MUHAMMED IBRAHIM (LATE), PUTHUKULANGARA HOUSE, (POST) PIRAYIRI, PALAKKAD, PIN-678 004.

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2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.

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R1 BY ADV.T.C.SURESH MENON

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R1 BY ADV.P.S.APPU

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R2 BY SMT.PUSHPALATHA M.K, SR.PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.Revision Petition No.181 of 2021

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P.G. AJITHKUMAR, J.

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----------------------------------------------------------Crl.Revision Petition No.181 of 2021

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----------------------------------------------------------Dated this the 11^th day of July, 2024

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O R D E R

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The 1^st respondent filed M.C.No.40 of 2012 before the Judicial Magistrate of the First Class-II, Palakkad, invoking the provisions of Section 12 of the Protection of Women from Domestic Violence Act, 2005. She claimed protection order, residence order and maintenance. The trial court allowed that petitioner as per the order dated 06.01.2016 granting an order of protection and directing the petitioner to pay Rs.5,000/- towards monthly maintenance and Rs.3,000/towards rent for availing an alternative accommodation. The petitioner preferred an appeal before the Court of Sessions, Palakkad. The Additional Sessions Judge-IV who heard the appeal, did not interfere with the order of the learned Magistrate. Aggrieved by the same, the petitioner has filed this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code).

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Crl.Revision Petition No.181 of 2021

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Heard the learned counsel for the petitioner,

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learned counsel for the 1^st respondent and the learned Public Prosecutor.

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The marital relationship is not in dispute. It is also undisputed that the petitioner and the 1^st respondent have been living separately now. The 1^st respondent contended that gold ornaments given and money paid at the time of marriage were retained by the petitioner, she was practically expelled from the marital home and that she had not been maintained. An illicit relationship between the petitioner and another woman was alleged as well.

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The petitioner filed a counter statement, controverting the allegations in the petition. He contended that he was getting only a meager income and the assertion that he was drawing a monthly salary of Rs.50,000/was incorrect. He, however, admitted that he was employed as a driver in Tamil Nadu bus service. He also took a stand that he was looking after the 1^st respondent as well as the children.

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Crl.Revision Petition No.181 of 2021

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The trial court recorded the oral testimony of the 1^st respondent. The petitioner did not adduce any evidence either oral or documentary. After considering that evidence, the trial court held that the 1^st respondent was entitled for a protection order and an order enabling realisation of maintenance and monthly rent for alternative accommodation from the petitioner. Before the appellate court the petitioner primarily contended that he was denied the opportunity to adduce evidence and therefore, the matter should be remanded for a fresh disposal. The findings of the trial court were assailed also.

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The appellate court did not consider the plea for a remand but after appreciating the evidence available on record held that the order of the trial court did not suffer from any infirmity.

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The learned counsel for the petitioner would submit that the view taken by the appellate court is palpably wrong inasmuch as it did not even consider the plea for a remand. Moreover, the appreciation of evidence was not in the proper

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Crl.Revision Petition No.181 of 2021

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perspective. On the basis of oral assertions of the 1^st respondent alone, the courts below reached the findings that there was domestic violence, and denial of accommodation and maintenance. In the view of the learned counsel for the petitioner, the said decision is not in terms of the evidence and also that it is vitiated due to denial of opportunity to the petitioner.

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The grievance of the petitioner now is essentially regarding the order directing payment of maintenance and rent for the alternative accommodation. The petitioner has no serious objection in regard to the protection order. Therefore, the consideration shall be confined to the questions; whether a remand is required to take a just and appropriateness in the quantum of monthly maintenance and rent for alternative accommodation. When the marital relationship is not in dispute, the parties are admittedly residing separately and the petitioner is apparently unable to maintain herself, the obligation of the petitioner to maintain her cannot be disputed. For deciding that question, no further evidence is required at all.

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Crl.Revision Petition No.181 of 2021

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Of course, when the courts below found that the 1^st respondent is entitled for an alternative accommodation, it should be based on evidence and circumstances whether the 1^st respondent did not have a place of abode and that the petitioner is obliged to provide an alternative accommodation. The petitioner has no case that in his house the 1^st respondent could be accommodated now. Although, the 1^st respondent asserted that the petitioner is maintaining an illicit relationship, a positive finding in that regard cannot be had for want of evidence. But when both parties are living separate for years together and the petitioner did not come forward offering to provide accommodation to the 1^st respondent, no question of allowing her to live in the shared household does arise. At the same time, the obligation of the petitioner to provide accommodation to the 1^st respondent cannot be denounced also for, the marriage relationship subsists.

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In that view of the matter, in order to decide the question of affording alternative accommodation to the 1^st

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Crl.Revision Petition No.181 of 2021

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respondent also, no further evidence is required. In the said circumstances, I am of the view that a remand of the matter as sought by the petitioner at this belated stage of the proceedings is not in the interest of either the petitioner or the 1^st respondent. The only question remains to be answered is what shall be the quantum of the maintenance and the rent to be paid for the alternative accommodation.

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The petitioner admitted that he was employed as a driver in Tamil Nadu bus service. The learned counsel for the petitioner would submit that he already retired from service and therefore, his income is meager. If retired, he would be drawing the pension and therefore, he has reasonable income so that he can pay maintenance and rent for the alternative accommodation to be availed by the 1^st respondent. The courts below found feasible that Rs.5,000/- to be paid towards monthly maintenance and rent was fixed as Rs.3,000/-. On perusal of the materials on record, it is seen that the 1^st respondent is residing now in her family house. There are other members also in that house. So there may be an

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Crl.Revision Petition No.181 of 2021

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exigency for her shifting her residence to an independent house. Taking into account the living circumstances of the parties as could be seen from the oral evidence tendered by PW1, I am of the view that the monthly maintenance of Rs.5,000/- is just and appropriate. The rent for an alternative accommodation shall, in my view, be Rs.2,000/- per month. With the said modification, the orders of the court below are confirmed.

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This revision petition is disposed of accordingly.

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dxy/dkr

M.Basheer v. Jameela

Case brief

What is this about?

What did the court decide?

M.Basheer v. Jameela

Case brief

What is this about?

What did the court decide?

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