IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE11H DAY OF DECEMBER201320TH AGRAHAYANA, 1935 Crl.Rev.Pet.No. 1310 of 2012 () -------------------------------- AGAINST THE JUDGMENT
IN CRL.A. 292/2010 of SESSIONS COURT, KASARAGOD DATED2305-2012 AGAINST THE ORDER
IN MC962009 of J.M.F.C.-I, HOSDRUG DATED2608-2010 REVISION PETITIONER(S)/APPELLANT/RESPONDENT: --------------------------------------------- YUSAF, AGED48YEARS, S/O.JOSE, AISWARYA QUARTERS, ITTUMEL, KOLAVAYAL P.O., KANHANGAD, KASARAGOD DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENTS/RESPONDENTS/PETITIONERS: ------------------------------------ 1. AYSHA.P.A., D/O.ANDUMAYI, AISWARYA QUARTERS, ITTUMEL, KOLAVAYAL.P.O., KANHANGAD, KASARAGOD DISTRICT.
2. SALMATH, D/O.YUSAF, AISWARYA QUARTERS, ITTUMEL, KOLAVAYAL.P.O. KANHANGAD, KASARAGOD DISTRICT.
3. SAMEERA, D/O.YUSAF, AISWARYA QUARTERS, ITTUMEL, KOLAVAYAL.P.O. KANHANGAD, KASARAGOD DISTRICT.
4. SAREERA,, D/O.YUSAF, AISWARYA QUARTERS, ITTUMEL, KOLAVAYAL.P.O. KANHANGAD, KASARAGOD DISTRICT. .....2 -2- 5. SIRAJUDEEN, S/O.YUSAF, AISWARYA QUARTERS, ITTUMEL, KOLAVAYAL.P.O. KANHANGAD, KASARAGOD DISTRICT.
6. MUHAMMED KUNHI, S/O.YUSAF, AISWARYA QUARTERS, ITTUMEL, KOLAVAYAL.P.O. KANHANGAD, KASARAGOD DISTRICT.
7. MUBEENA, D/O.YUSAF, AISWARYA QUARTERS, ITTUMEL, KOLAVAYAL.P.O. KANHANGAD, KASARAGOD DISTRICT.
8. KAMARIYA, D/O.YUSAF, AISWARYA QUARTERS, ITTUMEL, KOLAVAYAL.P.O. KANHANGAD, KASARAGOD DISTRICT.
9. HAJIRA, D/O.YUSAF, AISWARYA QUARTERS, ITTUMEL, KOLAVAYAL.P.O. KANHANGAD, KASARAGOD DISTRICT.
10. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. R1 TO R9 BY ADV. SRI.T.B.SHAJIMON R1 TO R9 BY ADV. SRI.C.SHUKKUR R10 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON1112-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HARILAL, J.
------------------------------------------------------ Crl.R.P. No. 1310 of 2012 ------------------------------------------------------ Dated this the 11th day of December, 2013 ORDER
The revision petitioner is the accused in M.C.No.96/09 on the files of the Judicial First Class Magistrate's Court-I, Hosdurg. The 1st respondent is the wife and the respondents 2 to 9 are the children aged 21, 19, 17, 15, 13, 11, 8 and 5 years respectively. According to the 1st respondent, she is the legally wedded wife and the respondents 2 to 9 are the children born in that wed-lock. They filed the above petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005, (for short, 'the D.V.Act'), claiming reliefs under Section 20 of the said Act. It is the case of the 1st respondent that the revision petitioner has been neglecting to maintain the respondents and she is unable to maintain Crl.R.P. No. 1310 of 2012 -:
2. :- herself and the children. She has no job or income. But, the revision petitioner has sufficient means to pay maintenance allowance to them. In addition to this, the respondents raised serious allegations of misconduct against the revision petitioner. He has contracted another marriage with one Suhara during the subsistence of the marriage with the 1st respondent. He has sold away the property of the 1st respondent and, using the sale proceeds, he purchased another property in his name alone and, thereafter, that property was also sold away and in that count, he received Rs.42,500/- as sale consideration. But, he utilized the same for his own purpose. He has ill-treated respondents 2 to 4, who are grown up daughters. He tried to marry again; but the same was failed due to the intervention of the Mosque committee. Now, he is residing with another lady by name, Amina at Ittummal. He is earning an amount of Rs.25,000/- per month. The respondents prayed for a direction to pay a sum of Rs.3,000/- to the 1st respondent, Rs.2,000/- each to the respondents 2 to 4, Rs.1,500/- each to the respondents 5 to 7 and Rs.1,000/- each to the respondents 8 and 9. They Crl.R.P. No. 1310 of 2012 -:
3. :- have also claimed an amount of Rs.50,000/- as compensation for mental torture and emotional distress. The learned Magistrate directed the revision petitioner to pay a sum of Rs.1,000/- per month to the 1st respondent, Rs.750/- each to the respondents 4 to 7 and Rs.500/- each to the respondents 8 and 9 per month. He was also directed to pay Rs.25,000/- to the 1st respondent towards compensation for mental and physical torture and Rs.42,500/- towards the sale consideration of 7 cents of property owned by the 1st respondent.
2. Feeling aggrieved, the revision petitioner had preferred Crl.Appeal No.292/10 before the Sessions Court, Kasaragod. But, after re-appreciating the evidence on record, the learned Sessions Judge also confirmed the judgment of the court below, without any interference. This Revision Petition is filed challenging the concurrent findings of the courts below.
3. The revision petitioner filed a counter statement admitting the marriage with the 1st respondent and the paternity of the respondents 2 to 9. He claimed that he had Crl.R.P. No. 1310 of 2012 -:
4. :- pronounced 'talaq' on 3.8.2005. It was also contended that the provisions of the D.V.Act came into force on 26.10.2006 only. Therefore, the Act has no retrospective effect. Therefore, the respondents are not entitled to get any relief under the D.V. Act. It is also contended that the 1st respondent is a Bharath beedi roller. The 2nd respondent is aged 22 years and she is a nurse at Mansoor Hospital, Kanhangad. The 3rd respondent is aged 20 years and she is a Clerk in the Office of the Leader Due Service, Kanhangad. The 4th respondent is also going for a job at Tip Top Watch Works and she is aged 19 years. So, they are not eligible to get maintenance allowance from the revision petitioner. The respondents 5 and 6 are studying at Yathimkhana, Kanhangad and the 7th respondent is studying at Yathimkhana, Parappally. According to the revision petitioner, on 30/5/07 the Women Commission ordered the revision petitioner to give an amount of `1,200/- towards maintenance and he has been paying that amount.
4. The learned counsel for the revision petitioner advanced arguments in support of the grounds raised in the Crl.R.P. No. 1310 of 2012 -:
5. :- Memorandum of Revision Petition and the learned counsel for the respondents advanced arguments to justify the impugned order under challenge.
5. The short question that arises for consideration is whether there is any illegality or impropriety in the order directing the revision petitioner to pay monetary claim under Sec.20 of the D.V. Act. The marital status and the paternity of the children are admitted; but according to him, the respondents 2 to 4 are are major and they are employed also. So, they are not entitled to get maintenance allowance. In view of the said contention, the court below has not awarded maintenance allowance to the respondents 2 and 3. Though he contended that he had pronounced Talak, absolutely no evidence to substantiate the said contention. So long as the marriage is admitted, the burden is on the husband to prove that he had pronounced a valid Talak and the said Talak was accepted by the wife. The specific contention of the 1st respondent is that the Talak alleged to have been pronounced by the revision petitioner is not a valid and binding on her. No evidence has come out Crl.R.P. No. 1310 of 2012 -:
6. :- to substantiate the plea of Talak from the part of the revision petitioner. Though he contended that there was an attempt to reconcile the issues prior to the Talak, no evidence was adduced to substantiate the said contention also. In Shamim Ara v. State of U.P. [2002 (3) KLT537(SC)], the Apex Court considered the essential ingredients of a valid Talak. The court below has appreciated the evidence as regards to the alleged pronouncement of Talak in view of the said decision and held that a valid Talak is not proved. I do not find any illegality or perversity in the appreciation of evidence on that point. So, the contention of the revision petitioner that the 1st respondent is the divorced wife, stands without proof and the same is rejected. As regards the challenge against jurisdiction under the D.V. Act, I am of the opinion that, so long as the alleged claim of Talak stands, not proved and cause of action for maintenance is a continuing one, there cannot be a challenge against the jurisdiction under the D.V. Act, and I reject that contention also. Therefore, I find that the revision petitioner cannot contend that the 1st respondent is not entitled to get maintenance Crl.R.P. No. 1310 of 2012 -:
7. :- allowance under the D.V. Act.
6. As far as the claim of the children for maintenance are concerned, the court below has not granted any relief to those who are majors and able to maintain themselves; but granted maintenance allowance to the respondents 4 to 7 only. Admittedly, they are minors and studying at school level. Indisputably, they are entitled to get maintenance allowance from the revision petitioner. The revision petitioner has no case that he has been paying maintenance allowance to them. So also, he has no case that he is unhealthy or disabled or incapacitated to do any work so as to earn livelihood for his family An able bodied man presumed to be having sufficient earning capacity to work for the livelihood of his family.
7. Coming to the compensation awarded for mental agony, it could be seen that going by the sequence of events from the very beginning, his conduct appears to be unsatisfactory and the evidence of P.W.1 shows that he married again and thereafter even now he is residing along with another woman. There are serious allegations against Crl.R.P. No. 1310 of 2012 -:
8. :- the revision petitioner as regards his misbehaviour towards his major daughters. Certainly, such behaviour is enough to cause much mental pain and agony. I am of the opinion that there is no circumstance disbelieve their allegations against their own father and P.Ws.2 and 3 have given oral evidence before the court complaining his misbehaviour towards them. In that circumstance, the direction to pay compensation for mental and physical torture which the wife and children suffered is justified.
8. It is also the case of the 1st respondent that her property was sold away by the revision petitioner and by using that fund, he has purchased another property and thereafter, that property was also sold away and finally he himself utilized the fund for his own purpose. In that circumstance, it is just and proper that the revision petitioner has to pay the value of that property to his wife.
9. Considering the quantum of maintenance allowance, having regard to the standard of life and living expenses of the minor children, the quantum of compensation determined by the court below is just and proper. The Crl.R.P. No. 1310 of 2012 -:
9. :- determination of the quantum does not call for any interference under the revisional jurisdiction. The 1st respondent is allowed to withdraw `75,000/- which had been deposited in compliance with the interim order dated 9/7/2012. This revision petition is dismissed. Sd/- (K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge