M. NIZAR @ NIZARUDEEN v. S. MUMTHAS, AMINA & STATE OF KERALA represented by Public Prosecutor

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` MONDAY, THE 4[TH] DAY OF JULY 2022 / 13TH ASHADHA, 1944 OP(CRL.) NO. 207 OF 2022 ``` ``` AGAINST THE ORDER IN CMP 420/2019 IN CMP No.127/19, CMP No.421/19 IN CMP 533/16 AND CMP No.422/19 IN CMP No.402/17 IN MC No.457/15 OF FAMILY COURT, NEDUMANGAD ``` ## **`PETITIONER/PETITIONER:`** ``` M. NIZAR @ NIZARUDEEN AGED 57 YEARS,M.M.MANZIL, KOCHUKARIKKAKAM, DAIVAURA P.O., PALODE, THENNUR VILLAGE, NEDUMANGADU TALUK, THIRUVANATHAPUTAM DISTRICT, PIN – 695 563 BY ADVS.ABU MATHEW AJU MATHEW P.BIJU (NEDUMANGAD) ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1S. MUMTHAS AGED 48 YEARS,M.A. MANZIL, PUTHUKULANGARA P.O., NEAR NEDUNEELI BRIDGE, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT, PIN – 695 541 ``` ``` 2AMINA AGED 22 YEARS,M.A. MANZIL, PUTHUKULANGARA P.O., NEAR NEDUNEELI BRIDGE, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT, PIN - 695541 ``` ``` 3STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031 ``` ``` R1 & R2 BY ADV PEROORKADA G.SUDHEER R3 BY SRI.V.S. SREEJITH, PUBLIC PROSECUTOR ``` ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 24.06.2022, THE COURT 04.07.2022 DELIVERED THE FOLLOWING: ``` O.P.(Crl.) No. 207 of 2022 -:2:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - O.P.(Crl.) No. 207 of 2022 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 04[th] day of July, 2022 ## JUDGMENT This petition is filed by the respondent in MC No.457 of 2015 on the files of Family Court, Nedumangad. By order passed in M.C. No.457 of 2015, the Family Court has directed the petitioner herein to pay monthly maintenance allowance at the rate of Rs.10,000/- and Rs.5,000/- respectively to 1[st] and 2[nd] respondents from 23.11.2015 i.e. from the date of the petition. The 1[st] respondent, the mother is permitted to receive the monthly maintenance allowance stands ordered in favour of the 2[nd] respondent. The order in the M.C was passed ex parte. The parties to this Original Petition will hereinafter be referred to as the respondent and the petitioners in accordance with their status in the M.C. O.P.(Crl.) No. 207 of 2022 -:3:- 2. CMP Nos.161 and 162 of 2016 were filed by the respondent seeking to condone the delay and to set aside the ex parte order in the M.C. A common order was passed by the Family Court, Nedumangad dismissing the applications and thereby, the ex parte order passed in the M.C was confirmed. 3. The respondent has filed RP(FC) No.418 of 2019 before this Court challenging the common order passed in CMP Nos.161 and 162 of 2016 and that is pending consideration. Petitioners 1 and 2 filed CMP Nos.533/16, 402/17, 127/19, 552/19, 265/21, 651/21 and 253/22 in M.C No.457/15 seeking for realisation of arrears of maintenance for different periods. During the pendency of the above CMPs, the respondent has paid Rs.3,50,000/- towards arrears of maintenance allowance, in favour of petitioners 1 and 2. 4. According to the respondent he is a Coolie worker and due to his ailments, he could not continue payment of maintenance allowance awarded as per Ext.P1 order. The Family Court, Nedumangad issued arrest warrants in CMP Nos.533/16, 402/17, 127/19, 552/19, 265/21 and 651/21, in the above context. ## O.P.(Crl.) No. 207 of 2022 -:4:- 5. According to the respondent, he is having 24.5 cents of property in RS No.2884/1 of Thennur Village and 40.47 Ares of property in Survey No.2247/1 and the factum is well known to petitioners 1 and 2. The Family Court, Nedumangad has issued a common order on 16.01.2020 in the above CMPs directing issuance of arrest warrants to the respondent so as to enforce Ext.P1 order, copy of which is produced alongwith the petition on hand as Ext.P7. According to the respondent, arrest warrants were issued by the Family Court, since the petitioner suppressed the factum of ownership of landed properties by him. 6. The grievance of the respondent was that he was having landed properties in the re-survey numbers mentioned by him and without proceeding against those, arrest warrants were issued. The said contention was found taken by him before the Family Court during consideration of the petitions referred to supra. Petitioners had also taken a contention before the Family Court that the landed properties owned by the respondent were attached by the Family Court in Original Petitions filed by them as OP Nos.420/16 and 224/17. O.P.(Crl.) No. 207 of 2022 -:5:- 7. The Family Court has dealt with the matter and found that the properties were attached in Original Petitions filed by the petitioners against the respondent and that those are insufficient to meet a decree that would be passed in the Original Petitions. Accordingly, issuance of arrest warrant was resorted to without issuance of distress warrant. CMP Nos.420/19, 421/19 and 422/19 were filed by the respondent for withdrawing the arrest warrant but those were dismissed by Ext.P7 order. 8. The learned counsel for the petitioner herein has cited Abdul Rahiman v. State of Kerala and Others [2011(4) KLT 125] to contend that sentence of imprisonment can be imposed against the defaulter only after issuing distress warrant for realisation of the amount due as arrears of maintenance allowance in the manner provided for realisation of fine amount. It is further held in the case that sufficient cause has to be shown by the court, if it evades to issue distress warrant. 9. True that in the case on hand landed properties are owned by the respondent, but those were apprised by the petitioner as attached by order passed in Original Petitions seeking for return of gold ornaments and realisation of money. ## O.P.(Crl.) No. 207 of 2022 -:6:- The Family Court has also found that attached properties itself are insufficient to meet the decree that would be passed in the Original Petitions. Thus the Family Court has found a sufficient reason for declining to issue distress warrant for realisation of the amount. The Family Court is justified in resorting to issue warrant of arrest against the respondent and the impugned order is only to be sustained. 10. It was submitted by the learned counsel for the respondent that substantial sum has already been deposited and if payment by installment is permitted, he would deposit the balance amount due towards arrears of monthly maintenance allowance. 11. In that event, this Court directs the Family Court to keep execution of non bailable warrant issued in abeyance for a period of two weeks. The respondent shall deposit 1/3[rd] of arrears of monthly maintenance allowance due from him within one month before the Family Court. The respondent shall also pay the amount outstanding in three equal monthly installments and also continue to pay monthly maintenance allowance payable at the rates fixed by Ext.P1 order, without failure. In case of O.P.(Crl.) No. 207 of 2022 -:7:- default in payment of 1/3[rd] of the arrears as directed, the Family Court shall proceed to execute non bailable warrant immediately. The Original Petition is disposed of as above. MARY JOSEPH, JUDGE. ttb O.P.(Crl.) No. 207 of 2022 -:8:- O.P.(Crl.) No. 207 of 2022 -:9:- ## **`APPENDIX OF OP(CRL.) 207/2022`** ``` PETITIONER’S EXHIBITS : ``` ``` Exhibit P1ORDER IN MC NO.457 OF 2015 Exhibit P2TRUE COPY OF COMMON ORDER DATED 04-11- 2016 PASSED IN C.M.P.NOS.161 OF 2016 AND 162 OF 2016 IN M.C.NO.457 OF 2015 BY THE FAMILY COURT NEDUMANGAD. Exhibit P3TRUE COPY OF THE C.M.P.NO.420 OF 2019 IN C.M.P.NO.127 OF 2019 IN M.C.457 OF 2015 FILED BY THE PETITIONER BEFORE THE FAMILY COURT NEDUMANGAD. Exhibit P4TRUE COPY OF THE C.M.P.NO.421 OF 2019 IN C.M.P.NO. 533 OF 2016 IN M.C.457 OF 2015 FILED BY THE PETITIONER BEFORE THE FAMILY COURT NEDUMANGAD. Exhibit P5TRUE COPY OF THE C.M.P.NO.422 OF 2019 IN C.M.P.NO. 402 OF 2017 IN M.C.457 OF 2015 FILED BY THE PETITIONER BEFORE THE FAMILY COURT NEDUMANGAD. Exhibit P6TRUE COPY OF THE COMMON COUNTER FILED BY THE RESPONDENT IN EXHIBIT P3, P4 AND P5. Exhibit P7TRUE COPY OF THE COMMON ORDER DATED 16- 01-2020 PASSED IN C.M.P.NO.420 OF 2019 IN C.M.P.NO.127 OF 2019, C.M.P.NO.421 OF 2019 IN C.M.P.NO.533 OF 2016, C.M.P.NO.422 OF 2019 IN M.P.NO.402 OF 2017 IN M.C.457 OF 2015 ON THE FILE OF THE FAMILY COURT NEDUMANGAD. ``` ``` RESPONDENTS’ EXHIBITS : ``` ``` EXHIBIT R1Certified copy of the memo in CMP No.127/2019 of issued from Family Court Nedumangad 21.04.22. EXHIBIT R2Certified copy of the memo in CMP No. 651/2021 of issued from Family Court Nedumangad dated 21.04.2022. EXHIBIT R3Certified copy of the memo in CMP No.402/17 of issued from Family Court Nedumangad dated 21.04.2022. ``` ## O.P.(Crl.) No. 207 of 2022 ## -:10:- |`EXHIBIT`|`R4`|`Certified copy of the memo in CMP`| |---|---|---| |||`No.552/2019 of issued from Family Court`| |||`Nedumangad dated 21.04.2022.`| |`EXHIBIT`|`R5`|`Certified copy of the memo in CMP No.`| |||`265/2021 of issued from Family Court`| |||`Nedumangad issued dated 21.04.2022.`| |`EXHIBIT`|`R6`|`Certified copy of the memo in CMP`| |||`533/2016 of issued from Family Court`| |||`Nedumangad dated 21.04.2022.`| |`EXHIBIT`|`R7`|`Certified copy of the Warrants of arrest`| |||`in CMP No. 402/2017 of issued Family`| |||`Court Nedumangad issued dated`| |||`18.07.2019.`| |`EXHIBIT`|`R8`|`Certified copy of the Warrants of arrest`| |||`report in CMP No.552/2019 of issued`| |||`Family Court Nedumangad issued dated`| |||`19.04.2022.`| |`EXHIBIT`|`R9`|`Certified copy of the Warrants of arrest`| |||`report in CMP No. 651/2021 of issued`| |||`Family Court Nedumangad dated`| |||`20.04.2022.`| |`EXHIBIT`|`R10`|`Certified copy of the Warrants of arrest`| |||`report in CMP 127/2019 of issued Family`| |||`Court Nedumangad dated. 18.04.2022`| |`EXHIBIT`|`R11`|`Certified copy of the Warrants of arrest`| |||`report in CMP No. 402/2017 of issued`| |||`from Family Court Nedumangad dated`| |||`18.04.2022.`| |`EXHIBIT`|`12`|`Certified copy of the Warrants of arrest`| |||`report in CMP.No.533/2016 of issued from`| |||`Family Court Nedumangad dated`| |||`18.04.2022.`| |`EXHIBIT`|`R13`|`Exhibit R13 : Certified copy of the`| |||`Attachment Order in OP No. 420/2016 of`| |||`issued Family Court Nedumangad dated`| |||`30.06.2016.`| |`EXHIBIT`|`R14`|`Certified copy of the Attachments Order`| |||`in OP No. 224/2017 of issued from Family`| |||`Court Nedumangad dated 4.03.2017.`| ## O.P.(Crl.) No. 207 of 2022 ## -:11:- |`EXHIBIT R15`|`Certified copy of the IA.No.1800/2019`| |---|---| ||`defence of the counter petitioner Struk`| ||`off order in OP No.224/2017 of issued`| ||`from Family Court Nedumangad dated`| ||`12/10/2021.`| |`EXHIBIT R16`|`Exhibit R16 : Certified copy of the`| ||`IA.No.1801/2019 defence of the counter`| ||`petitioner Struk off order in OP`| ||`No.420/2019 of issued from Family Court`| ||`Nedumangad dated 12/10/2021.`| |`EXHIBIT R17`|`Certified copy of the Registered will in`| ||`OP.No.420/2016 of issued from Family`| ||`Court Nedumangad dated 17/11/2015`| |`EXHIBIT R18`|`Certified copy of the sale deed`| ||`no.2247/1998 in OP.No.420/2016 of issued`| ||`from Family Court Nedumangad dated`| ||`17/11/2015.`| |`EXHIBIT R19`|`Certified copy of the Remand Order in`| ||`CMP No.402/2017 issued from Family Court`| ||`Nedumangad dated 07/05/2022.`| |`EXHIBIT R20`|`Certified copy of the Remand Order in`| ||`CMP No.552/2019 issued from Family Court`| ||`Nedumangad dated 07/05/2022.`| |`EXHIBIT R21`|`Certified copy of the Remand Order in`| ||`CMP. No.651/2021 issued from Family`| ||`Court Nedumangad I dated 07/05/2022.`| |`EXHIBIT R22`|`Certified copy the warrant endorsement`| ||`letter issued from Family Court`| ||`Nedumangad dated 07/05/2022`| //TRUE COPY// Sd/- P.S. TO JUDGE