IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT :

THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH

FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932

Crl.MC.No. 538 of 2011()

( CRL.RP.7/2009 of SESSIONS COURT, KOLLAM)

PETITIONER/PETITIONER/PETITIONER:

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SOFIA, D/O.NABEESA BEEVI, KAIPPALLIL VEEDU, KAMBALADI MURI, PORUVAZHI VILLAGE, KOLLAM.

BY ADVS. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE

RESPONDENTS/RESPODENT & STATE/RESPONDENT & STATE:

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1. T.SALAM, KAIPPALLIL VEEDU, AMBALATHUMBHAGAM MURI, PORUVAZHY VILLAGE, KOLLAM, PIN 691001 (NOW EMPLOYED AT UAE, P.B. NO.2149, D.P.A. GENERAL CARGO, POST RASHEED, DUBAI, UAE)

2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 6820131.

BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

VK

THOMAS P JOSEPH, J.

---------------------------------------- Crl.M.C.No.538 of 2011

--------------------------------------- Dated this 25 th day of February, 2011

ORDER

Petitioner made a claim against her former husband in M.C.No.42 of 2003 of the Court of learned Judicial First Class Magistrate, Sasthamcotta under Secs.3 and 4 of the Muslim Woman (Protection of Right on Divorce) Act, 1986. The claims included return of money, gold ornaments and movables allegedly entrusted with the respondent. The marriage was on 23.06.1993 and divorce was on 04.09.2002. Petitioner gave evidence as PW1 and examined PWs.2 to 4 and marked Exts.P1 to P4. Since respondent was in Gulf he did not mount the witness box and instead, his power of attorney and brother was examined as CPW1. He also examined CPWs.2 and 3 and proved Exts.D1 to D6. Trial court found that allegations regarding entrustment of money, ornaments, movables and its misappropriation pleaded by the petitioner cannot be accepted and consequently rejected those claims. Revisional Court confirmed that finding. Hence this petition. It is contended by learned counsel that there was no reason to disbelieve the evidence of PW1, petitioner. It is also argued that though a specific allegation was made that ornaments, money and movables were entrusted with the respondent, he did not mount the witness box, face cross examination and in the circumstances the courts below ought to have accepted evidence of PW1. I have heard learned Public Prosecutor also.

2. Claim of petitioner is that Rupees One Lakh was given to the respondent as pocket money at the time of betrothal and a further sum of Rupees Three Lakhs was entrusted to him for future welfare of petitioner. In addition to that, gold ornaments weighing 25 sovereigns was given to the petitioner which respondent misappropriated. Household articles worth Rs.75,000/- were also given to the petitioner which were misappropriated by the respondent. A further sum of Rupees Four Lakhs were given to the respondent by the brothers of petitioner after marriage. The allegations were disputed by respondent in his counter statement.

3. PW1, petitioner gave evidence in tune with the averments in the petition. PW2 is the Secretary of Jama Ath whose evidence is not useful so far as the alleged entrustment and misappropriation are concerned. PW3 is the brother of petitioner who was not present at the time of marriage or when the amount was allegedly given to the respondent. Courts below

-: 2 :-

-: 3 :-

have observed that he has only hearsay information about those matters. He is said to have sent money to the account of his parents. PW4 is the husband of elder sister of petitioner. He is also not aware of payments allegedly made to the respondent. Oral evidence confined to what petitioner stated as PW1 and the version of PW3 that he had sent certain amount from abroad to the account of his parents. Of Exts.P1 to P4, Ext.P1 is the talak letters, Ext.P2 is the extract of account of PW4 and Ext.P3 is the passbook in the joint account of PW4 and his wife. Ext.P4 is the passbook of mother of PW4. Courts below found that those documents did not prove the case of petitioner. On the other hand, even if respondent was not able to give evidence on account of his being abroad, his brother and power of attorney stated as CPW1 that the allegations are not correct and that no such entrustment were made. Ext.D1 is the copy of complaint seeking maintenance where in paragraph 7 it is stated that the movables are in the possession of petitioner and that she is not claiming any movables from respondent. Ext.D2 is copy of the written statement filed by petitioner in O.S.No.81 of 2003 filed by the respondent seeking partition where as also she asserted that movables are in her possession. Ext.D4 is the copy of marriage register of petitioner and respondent maintained by the Jama Ath -: 4 :-

(of which PW2 is the Secretary). There, as against the version the petitioner was given 25 sovereigns of gold ornaments what is stated is that only 10 sovereigns of gold ornaments were given to her at the time of marriage. It also came in her evidence that version of petitioner that money given by her brother was spent for construction of building. Respondent stated that he raised the money for construction of the building. CPW3 is the brother of respondent. He stated that he was supervising the construction and that money was sent through his account. Ext.D6 is the extract of account of CPW3. In the light of the above contradictory evidence and the circumstances which did not favour the claim of petitioner, courts below were not inclined to accept her claim regarding ornaments, money and movable items and disallowed those claims. I am not satisfied that there is any abuse of the process of Court or, patent injustice on petitioner so that this Court is required to interfere under Sec.482 of the Code of Criminal Procedure.

This criminal miscellaneous case is dismissed.

(THOMAS P JOSEPH, JUDGE)

Sbna/-

/True Copy/

P.A to Judge