Ibrahimkutty s/o Sulthan Pillai v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943** ## **Crl.MC.No.6316 OF 2017(H)** **MC 38/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,KOTTARAKKARA** ## **PETITIONER/RESPONDENT** **IBRAHIMKUTTY S/O.SULTHAN PILLAI, AGED 47 YEARS, VENGAVILAVEEDU, MUKKADA, MANJAPPRA MURI, KOTTUKKAL VILLAGE, KOLLAM DISTRICT.** **BY ADVS. SRI.K.SIJU SMT.S.SEETHA** ## **RESPONDENTS/COMPLAINANTS 1 TO 3** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **2. FASEELA BEEVI** **D/O.SAHADABEEVI, VENGAVILAVEEDU, MANJAPPRA MURI, KOTTUKKAL VILLAGE, KOLLAM DISTRICT-691306.** **3. MUHAMMED ISMAIL, AGED 15 YEARS, S/O.IBRAHIMKUTTY, VENGAVILAVEEDU, MANJAPPRA MURI,KOTTUKKAL VILLAGE, KOLLAM DISTRICT-691306. (CORRECTED BY HIS MOTHER THE 2ND RESPONDENT)** ## **4. FATHIMA, AGED 6½ YEARS** **D/O.IBRAHIMKUTTY, VENGAVILAVEEDU, MANJAPPRA MURI,KOTTUKKAL VILLAGE, KOLLAM DISTRICT-691306. (REPRESENTED BY HER MOTHER, THE 2ND RESPONDENT) (ADDRESS OF R3 AND R4 ARE MODIFIED AS PER ORDER DATED 3.10.17 IN CRL.M.A.10365/17)** Crl.M.C.6316 of 2017 2 ## **ADDL.RESPONDENT** **5. MUHAMMED ALI (MINOR), S/O IBRAHIMKUTTY, AGED 6 ½ YEARS, VENGAVILAVEEDU, MANJAPPRA MURI, KOTTUKKAL VILLAGE, KOLLAM DISTRICT-691306. (REPRESENTED BY HIS MOTHER, THE 2ND RESPONDENT) (Impleaded as per order dated 3.10.2017 in Crl.M.A.10311/2017)** **BY ADV. SRI.ALEXANDER GEORGE SENIOR PUBLIC PROSECUTOR SRI.P.K.BABU** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.6316 of 2017 3 ## **ORDER** ## **Dated : 29[th] March, 2021** 1. This Crl.M.C has been filed seeking to set aside the order in C.M.P.2666/2017 in M.C.38/2013 on the file of Judicial First Class Magistrate Court-II, Kottarakkara. 2. Petitioner is the respondent in M.C.38/2013 which has been filed under Sec.12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as PWDVAct). Along with the petition, respondents 2 to 5/petitioners in M.C filed Crl.M.P.86/2013 for interim order under Sec.23(2) of the Pwdv Act. In that petition, as per order dated 5.4.2013, the learned Magistrate passed interim protection orders including a direction to pay interim maintenance of Rs.3,000/-, 1500/-each to respondents 3 to 5 respectively. When the M.C came up for evidence, the defence of the petitioner/respondent was struck off for the reason that he has not cleared the arrears of interim maintenance awarded. Thereafter chief affidavit of the 2[nd] respondent/1st petitioner was permitted to be filed and the case was Crl.M.C.6316 of 2017 4 posted for hearing without giving an opportunity to prove his defence. So he filed C.M.P.2666/2017 to review the order dated 11.4.2017 and for re-opening the evidence and the same was dismissed by the learned Magistrate. That order is impugned before this court. 3. According to the learned counsel for the petitioner, before passing the interim order in Crl.M.P.86/2013 he was not heard and he has been suffering from 65% of permanent disability and all those factors could not be brought in evidence since his defence was struck off. It is also his contention that while he suffered from a stroke resulting partial paralysis of right upper and lower limbs,and undergoing treatment the 2[nd] respondent left him. He has got serious contentions in the M.C and striking off the defence has caused miscarriage of justice. 4. The learned counsel for respondents 2 to 5/original petitioners, on the other hand would contend that petitioner/respondent married again and is living happily with the new wife. He has given for hire two vehicles and is having very good income and is willfully evaded payment Crl.M.C.6316 of 2017 5 of maintenance. According to him, as on 5.2.2021, an amount of Rs.5,31,000/- is due towards the interim maintenance. It is also his contention that the petitioner/respondent did not opt to challenge the interim order passed in Crl.M.P.86/2013 awarding the interim maintenance and it has become final. 5. Since the petitioner/respondent has not challenged the order in Crl.M.P.86/2013, needless to say, he is liable to pay the interim maintenance awarded till the disposal of the M.C subject to variation, if any, made at the time of final disposal of the M.C. At the same time, it has come out that the defence of the petitioner/respondent was struck off for the reason of non payment of the interim maintenance awarded. In **Rajanesh v. Neha and Another (ILR 2020 4 (Ker) 579)** the Apex Court has laid down various guidelines where successive claims are made by a party under different statutes for maintenance. It has been held that the order or decree of maintenance may be enforced like a decree of civil Court, through the provisions which are available for enforcing a money decree, including civil Crl.M.C.6316 of 2017 6 detention, attachment of property etc., as provided by various provisions of CPC, more particularly Secs 51, 55, 58, 60 r/w Order XXI and striking off defence of the respondent is an order to be passed as a last resort if the Court finds the default to be contumacious particularly to a dependent unemployed wife and minor children. This Court in **Sakeer Hussain v. Naseera (2016 4 KLT 186)** held to the extent that the proceedings under Sec.125 being governed by the provisions of Criminal procedure Code, power to strike off defence does not exist either by statutory provision or by necessary implication. However, in **Rajanesh's** case referred supra, the Apex Court was pleased to hold that the striking off defence of respondent is an order to be passed as a last resort. 6. Hence the procedure adopted by the learned Magistrate in striking off the defence of petitioner/respondent ought not have been resorted to in view of the facts and circumstances discussed below. 7. Copy of the treatment certificate issued from Ananthapuri Hospitals and Research Institute, Thiruvananthapuram has Crl.M.C.6316 of 2017 7 been produced as Annexure-A3 by the petitioner. It would show that he has been diagnosed for evolving stroke (L) MCA territory, systemic hypertension and Dysllpldemia. The Course in the Hospital would show that he was presented from St Joseph's Hospital with complaint of slurring of speech, weakness of right Upper limb and lower limb on 26.2.2012. C.T brain showed features evolving infarct Left MCA territory. He underwent thrombolization with rtpa under strict monitoring. Gastro consultation done and orders carried out. Annexure A4 is the copy of outpatient record of Medical College Hospital, Thiruvananthapuram, in respect of stroke helpline dated 11.1.2014, 3.5.2014, 12.8.2014 etc. Annexure-A4/8 is the copy of Occupational Therapy Appointment Card of Medical College Hospital Thiruvananthapuram. Annexure-A5 is the copy of discharge certificate issued from Govt. Ayurveda Hospital, Ayoor dated 7.9.2015. Ext.A6 is the copy of Standing disability Assessment Board certificate showing permanent disability as 65% belonging to moderate category. The above documents would go to show prima facie that he had been suffering from stroke on 26.2.2012 and had been undergoing treatment. Crl.M.C.6316 of 2017 8 8. However the fact remains that the order passing interim maintenance remains unchallenged. The petitioner also said to have married again. He has a legal and moral duty to maintain the children. Hence I do not find any justification for making such huge amount in arrears by the petitioner, the father of the minor children. Hence taking into account the totality of the facts and circumstances, I am of the considered view that the order passed on 11.4.2017 by the learned Magistrate in striking off the defence of the petitioner/respondent has to be set aside and the evidence to be re-opened, subject to payment of Rs.1,00,000/- by the petitioner/respondent in M.C within one month from the date of receipt of copy of this order to the 2[nd] respondent on behalf of respondents 3 to 5/petitioners 2 to 4. On payment of the amount as aforesaid, the learned Magistrate shall proceed with the M.C by giving an opportunity to the petitioner/respondent to contest the matter and dispose of the case untrammelled by any of the observations made by the Court for the disposal of the Crl.M.C. It is open for respondent No.2 to Crl.M.C.6316 of 2017 9 adduce further evidence if she deems it necessary. On failure to comply with the condition above stipulated, the original order passed by the learned Magistrate in M.C.38/13 would be restored. 9. In the result, impugned order in C.M.P.2666/2017 is set aside and Crl.M.C allowed in the above lines. The parties shall appear before the Court below on 19.4.2021. Sd/- ## **M.R.ANITHA, Judge** Mrcs/24.3. Crl.M.C.6316 of 2017 10 ## APPENDIX ## ANNEXURES |**ANNEXURE A1**|**THE COPY OF COMPLAINT FILED U/S 12 OF THE**| |---|---| ||**DOMESTIC VIOLENCE ACT IN M.C.NL.38/2013.**| |**ANNEXURE A2**|**THE COPY OF THE INTERIM ORDER DT.05-04-2013 IN**| ||**CRL.M.P.NO.86/13 IN M.C 38/2013 ON THE FILE OF**| ||**JFCM-II, KOTTARAKKARA.**| |**ANNEXURE A3**|**THE COPY OF TREATMENT CERTIFICATE ISSUED FROM**| ||**ANANTHAPURI HOSPITAL, THIRUVANANTHAPURAM.**| |**ANNEXURE A4**|**THE COPY OF TREATMENT RECORDS OF THE**| ||**PETITIONER AT MEDICAL COLLEGE HOSPITAL,**| ||**THIRUVANANTHAPURAM.**| |**ANNEXURE A5**|**THE COPY OF DISCHARGE CERTIFICATE OF THE**| ||**PETITIONER AT GOVERNMENT AYURVEDA MEDICAL**| ||**COLLEGE HOSPITAL, THIRUVANANTHAPURAM.**| |**ANNEXURE A6**|**THE COPY OF DISABILITY CERTIFICATE DT.19-05-**| ||**2015 ISSUED BY THE DISABILITY BOARD.**| |**ANNEXURE A7**|**THE COPY OF ORDER SHEET TILL 25-04-2017 IN**| ||**M.C.38/2013 ON THE FILE OF JFCM-II,**| ||**KOTTARAKKARA.**| |**ANNEXURE A8**|**THE COPY OF PETITION FILED U/S 25 OF THE**| ||**DOMESTIC VIOLENCE ACT AS C.M.P.NO.1250/2016.**| |**ANNEXURE A9**|**THE COPY OF AFFIDAVIT AND PETITION IN CMP**| ||**2666/2017 DT.30-06-2017.**| |**ANNEXURE A10**|**CERTIFIED COPY OF ORDER DT. 04-08-2017 IN**| ||**M.C.38/2013 ON THE FILE OF JFMC-II**| ||**KOTTARAKKARA.**|