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A.K. Basheer Vs. Ayshath Thahira M. - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Judge
AppellantA.K. Basheer
RespondentAyshath Thahira M.
Excerpt:
.....it is seen from the order passed by the trial court that the petitioner was absent at the time of trial. it is submitted by the learned counsel for the petitioner that he was working abroad at that time and could not come to his native place to defend the case crl.m.c no.2350 of20123 because of non obtaining of visa. virtually, this is a matter decided ex parte against the petitioner. the petitioner/husband took up the matter unsuccessfully before the learned sessions judge in revision. after considering the matter, the revision was dismissed confirming the order passed by the trial court.5. the main grievance of the petitioner is that the petitioner could not avail an opportunity to contest his case without hearing him. the trial court directed him to pay an amount of.....
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE3D DAY OF JANUARY201413TH POUSHA, 1935 Crl.MC.No. 2350 of 2012 () --------------------------- MC. NO.125/2006 OF CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD. ...... PETITIONER/REVISION PETITIONER/COUNTER PETITIONER: --------------------------------------------------------------------------------------- A.K. BASHEER, AGED42YEARS, S/O.A.K. MOHAMMED KUNHI, A.K. HOUSE, KALANAD VILLAGE AND POST, KASARAGOD TALUK. BY ADVS.SRI.T.B.SHAJIMON, SMT.GOVINDU P.RENUKADEVI. RESPONDENTS/RESPONDENTS/PETITIONER/STATE: ----------------------------------------------------------------------------- 1. AYSHATH THAHIRA M., AGED30YEARS, D/O.C.P. ABDUL RAHIMAN, SUMAIRA MANZIL, CHERKALA, CHENGALA VILLAGE AND POST, KASARAGOD TALUK, PIN-688 007.

2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.K.ANAND R2 BY PUBLIC PROSECUTOR MR.REJI JOSEPH. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON0301-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. A.HARIPRASAD, J.

------------------------------------------------ Crl.M.C No.2350 OF2012------------------------------------------------- Dated this the 3rd day of January, 2014. ORDER

The petitioner is the respondent in M.C No.125/2006 on the file of the Chief Judicial Magistrate Court, Kasaragod. He was called up to answer in a proceeding under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act 1986, (shortly stated, the Act). The case of the parties are as follows :- Petitioner married the first respondent on 20-09-2000. It is alleged by the wife (first respondent) that at the time of marriage Rs.1,00,000/- in cash and a motor cycle had been given to the petitioner by her parents. Gold ornaments weighing 50 sovereigns and 20 cents of land were also given at the time of marriage. It is the allegation that the petitioner misappropriated her gold ornaments and cash. After sometime, their relationship became strained and the petitioner physically assaulted her. It is seen from the orders of the courts below that both civil and criminal litigations were pending between the parties at the time of the proceedings. Inspite of the intervention of mediators, the matter could not be settled. Hence the Crl.M.C No.2350 OF20122 wife approached the learned Magistrate for maintenance under the provisions of the Act.

2. Petitioner entered appearance and filed a counter statement refuting the allegations levelled against him. Allegations of appropriation of movable properties belonging to the wife and physical assault have been specifically denied by the petitioner/husband. It can be seen from the counter statement that the marriage between the petitioner and the first respondent and subsequent pronouncement of Thalak are admitted facts. It appears that the dispute is mainly relating to the quantum of compensation awarded by the trial court.

3. Heard the learned counsel for the petitioner/husband and the learned counsel for the first respondent/wife.

4. It is seen from the order passed by the trial court that the petitioner was absent at the time of trial. It is submitted by the learned counsel for the petitioner that he was working abroad at that time and could not come to his native place to defend the case Crl.M.C No.2350 OF20123 because of non obtaining of visa. Virtually, this is a matter decided ex parte against the petitioner. The petitioner/husband took up the matter unsuccessfully before the learned Sessions Judge in revision. After considering the matter, the revision was dismissed confirming the order passed by the trial court.

5. The main grievance of the petitioner is that the petitioner could not avail an opportunity to contest his case without hearing him. The trial court directed him to pay an amount of Rs.7,79,000/- under various heads to the wife/first respondent. It is submitted on behalf of the petitioner that the amount awarded is exorbitant, legally not payable and also beyond the means of the petitioner. The petitioner requested for remission of the matter to the court below for giving him an opportunity to contest the matter.

6. Considering the pleadings and the view taken by the courts below, I find that the petitioner should have been given an opportunity to defend his case effectively. However, the plight of the wife also should be considered while remitting the matter to the trial Crl.M.C No.2350 OF20124 court. Therefore, the following order is passed. In the result, the Crl.M.C is allowed with the following conditions:- 1. In the event of the petitioner depositing before the trial court a sum of Rs.3,00,000/- (Rupees Three Lakhs Only) within a period of one month from today, the impugned orders passed by the courts below will remain set aside and the matter will stand remitted back to the trial court for affording an opportunity to the petitioner to contest the case.

2. If no deposit is made as stipulated above, the impugned orders will stand affirmed. All pending interlocutory applications will stand dismissed. Sd/- A.HARIPRASAD, JUDGE. //True Copy// P.Ato Judge amk


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