K. MOHAMED SHAFI Vs. SHAMSIYA

JUDGEMENT

(1.) THIS is a petition filed by the counter petitioner in M.C.No.9/2007 on the file of the Judicial First Class Magistrate Court -V, Kozhikode and the respondent in Crl.R.P.No.18/2011 on the file of the First Additional Sessions Court, Kozhikode to quash the proceedings to the extent objected by the petitioner in Cr.R.P.No.18/2011 under Section 482 of the Code of Criminal Procedure (herein after referred to as 'the Code').

(2.) THE original proceedings in M.C.No.9/2007 was taken on file on the basis of a petition filed by the respondent herein under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act. The case of the original petitioner in the petition was that she is the former wife of the petitioner herein. The marriage between the petitioner and the respondent was solemnised on 1.4.1993. At the time of marriage, the parents of the respondent herein had given 25 sovereigns of gold ornaments and paid cash of Rs.25,000/ - to the petitioner herein. After the marriage, mother of the petitioner obtained gold ornaments of the respondent herein for keeping the same in her safe custody. Subsequently, with the help of the father of the respondent, who was working abroad, the petitioner herein went abroad and after 14 months, he returned from Gulf. After some time, he obtained Rs.50,000/ - from the father of the respondent and went to Gulf again. That time also, he returned within a few months. The gold ornaments given to her were appropriated by the petitioner herein. In the marital relationship, two children were born to them. He was working as a Peon in Agricultural Department at the time of marriage. She was ill treated by the petitioner herein and also his relatives demanding dowry. She was taken to his quarters in the working place. There also the ill treatment continued. He had married another woman by name Rahmath and he was residing with her. In connivance with the second wife, she was driven out of the house. Since she was unable to tolerate the ill treatment at the hands of the petitioner herein and his relatives, she filed a complaint before the Magistrate court which was forwarded to the police and a crime was registered. While so, he pronounced triple talaq and intimated the same to the respondent herein by letter dated 7.1.2006. Thereafter she observed iddath. He has not paid any maintenance during the period of iddath and he had not returned her gold ornaments or the cash received at the time of marriage and also at the time when he went abroad. He is getting Rs.8,000/ - as salary. She claimed Rs.6,000/ - towards maintenance during iddath period and return of 25 sovereigns of gold ornaments or its value Rs.1,77,000/ - and Rs.3,00,000/ - towards fair and reasonable provision and also return of Rs.75,000/ - obtained by the petitioner herein from her parents at the time of marriage and also at the time when he went abroad on the second occasion.

(3.) PWS 1 to 3 were examined and Exts.P1 to P6 series were marked on the side of the respondent herein in the lower court. The petitioner herein was examined as RW1 and Ext.D1 was marked on his side. After considering the evidence on record, the learned Magistrate awarded Rs.6,000/ - as maintenance during the period of iddath and also awarded Rs.1,68,000/ - as reasonable and fair provision, but rejected the claim for return of gold ornaments or its value and the amount alleged to have been paid at the time of marriage and also at the time when the petitioner went abroad on the second occasion. Dissatisfied with the dismissal of the claims, the respondent herein filed Crl.R.P.No.18/2011 before the Sessions Court, Kozhikode and it was disposed of by the First Additional Sessions Judge by the impugned judgment and allowed the claim for return of 5 sovereigns of gold ornaments or its value of Rs. 1 lakh and also directed the petitioner to pay Rs.25,000/ - being the amount paid at the time of marriage. The learned Additional Sessions Judge had fixed the monthly maintenance amount payable at Rs.2,200/ - and awarded Rs.6,600/ - being the maintenance at the time of iddath and also taken 16 as multiplier and assessed Rs.4,22,400/ - being the reasonable and fair provision payable but awarded only Rs.3,00,000/ - being the amount claimed in the petition as fair and reasonable provision payable to the respondent herein. Aggrieved by the enhancement of fair and reasonable provision and also allowing the claim for return of 5 sovereigns of gold ornaments and the cash of Rs.25,000/ -, the petitioner filed this petition under Section 482 of the Code to quash the order to the extent mentioned above.