Majeed v. Fousiya and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942 OP(Crl.).No.7 OF 2020** **AGAINST MC NO.119/2017 DATED 26-11-2019 OF FAMILY COURT, PALAKKAD** ## **PETITIONER:** **MAJEED AGED 32 YEARS, S/O.ABDUL KHADAR, THACHANGODU VEEDU, KIZHAKKENCHERY, ELAVAMBHADAM POST, ALATHUR TALUK-678684.** **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENTS:** - **1 FOUSIYA, D/O.AHAMMAD, AGED 25 YEARS, MUTHAYAMKODU VEEDU, PUDUCODE POST, ALATHUR TALUK-678687.** - **2 SHIBANA (MINOR), D/O.FOUSIYA, AGED 5 1/2 YEARS, REPRESENTED BY MOTHER AND NEXT FRIEND, D/O.AHAMMAD, AGED 25 YEARS, MUTHAYAMKODU VEEDU, PUDUCODE POST, ALATHUR TALUK-678687.** - **3 FIDA FATHIMA (MINOR), D/O.FOUSIYA, AGED 4 1/2 YEARS, REPRESENTED BY MOTHER AND NEXT FRIEND, D/O.AHAMMAD, AGED 25 YEARS, MUTHAYAMKODU VEEDU, PUDUCODE POST, ALATHUR TALUK-678687.** - **4 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R1-3 BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **OTHER PRESENT:** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 05.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P. (Crl.) No.7/2020 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- O.P. (Crl.) No.7 of 2020 ---------------------------------------------Dated this the 05[th] day of November, 2020 ## **J U D G M E N T** The prayers in the above Original Petition (Criminal) filed under Article 227 of the Constitution of India are as follows : - _“i. Issue a direction tocall for the records leading to the order dated 26.11.2019 in Crl.M.P. No.582/2019 in M.C. No.119/2017 on the file of the Family Court, Palakkad and to set aside the condition imposed while allowing the said application in the interest of justice._ _and_ - _ii. Render such other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.Binoy Vasudevan, learned counsel appearing for the petitioner, Sri.V.A.Johnson (Varikkapapallil), learned counsel appearing for the respondents and Sri.Saigi Jacob Palatty, learned Public Prosecutor, appearing for the 4[th] respondent. 3. The petitioner herein is the husband of the 1[st] O.P. (Crl.) No.7/2020 3 respondent. Respondents 2 & 3 are the minor daughters born in the wedlock of the abovesaid couple. The respondents have filed Ext.P1 M.C No.119/2017 before the Family Court, Palakkad, under Section 125 of the Cr.P.C., seeking maintenance at the rate of Rs.7,000/- per month to the wife and at the rate of Rs.4,000/- per month to each of the two children, thus totaling to an amount of Rs.15,000/- per month. 4. Since the petitioner did not appear, after service of notice, he was set ex-parte and the Family Court, Palakkad, has passed the impugned Ext.P-2 ex-parte final order dated 23.02.2018 allowing the maintenance claim and thus directing the petitioner herein to pay maintenance at the rate of Rs.7,000/- per month to the wife and at the rate of Rs.4,000/per month to each of the two children and thus totaling to an amount of Rs.15,000/- per month, as sought for by the respondents herein. According to the petitioner, he was then working in a gulf country and that the respondents have shown his addresses in Kerala knowing fully well that he was then based in a gulf country and that he was not aware about the service of notice and therefore, he was totally incapacitated O.P. (Crl.) No.7/2020 4 from defending his case by engaging a counsel and to conduct the case on merits. Thus, being aggrieved by Ext.P-2 impugned ex-parte final order, the petitioner herein has filed Ext.P-3 C.M.P. No.581/2019 in M.C. No.119/2017 of the Family Court, Palakkad, seeking to condone the delay of 467 days in filing the application to set aside the ex-parte order and Ext.P-4 C.M.P. No.582/2019 in the said M.C. seeking to set aside the impugned Ext.P-2 final order. 5. This Court, by Ext.P-5 judgment dated 25.09.2019 in O.P. (Crl.) No.416/2019, filed by the petitioner herein, had directed the Family Court to consider and pass orders on the applications as per Exts.P-3 & P-4 herein, after hearing both sides. The Family Court has, thereafter passed Ext.P-6 order dated 26.11.2019, condoning the delay in filing the application to set aside the ex-parte order on condition that the petitioner should pay cost of Rs.1,500/- to the opposite side. The petitioner has no grievance with Ext.P-6 order and according to him, he has already complied with the requirement to pay cost in Ext.P-6. However, the Family Court has now passed Ext.P-7 order dated 26.11.2019 setting aside the impugned Ext.P-2 ex- O.P. (Crl.) No.7/2020 5 parte order on condition that the petitioner should deposit 50% of the total maintenance arrears before the said court, which is to be released to the respondents herein. It is this order at Ext.P-7 that is under challenge. 6. Sri.Binoy Vasudevan, learned counsel appearing for the petitioner, would point out that if the service of notice on the maintenance petition was properly served on the petitioner, who was then in a gulf country, then the petitioner would have certainly made arrangements to ensure the conduct of the case on merits and that he was incapacitated from doing so, as the notice was served in his local address in Kerala at a time when he was fully based in a gulf country, etc. It is pointed that the condition in Ext.P-7 order that he should necessarily pay 50% of the total maintenance arrears for the purpose of decision on Ext.P-1 application on merits, so as to set aside the impugned Ext.P-2 ex-parte order, etc. is too onerous and beyond his paying capacity and that this Court may interfere with the same. 7. The said plea of the petitioner is seriously opposed by Sri.V.A.Johnson Varikkappallil, learned counsel appearing for respondents 1 to 3, who would point out that the O.P. (Crl.) No.7/2020 6 respondents herein are almost peniless and the petitioner has not taken any action to take care of their minimal economic needs and that the 1[st] respondent and her two minor daughters are, put to great financial hardships ,as they don't have any means to take care of themselves. That, in case this Court is inclined to interfere with Ext.P-7, then this Court may direct that interim maintenance should be paid by the petitioner, as otherwise it would amount to injustice to his parties. 8. Learned Advocates appearing on both sides submitted that this Court may appropriately fix interim maintenance amount to be paid by the petitioner during the pendency of the maintenance case and may make it clear that the grant of interim maintenance will be without prejudice to the rival contentions of both sides and that the final claims of maintenance should be independently adjudicated by the Family Court, untrammeled and uninfluenced by the orders passed by this Court on the issue of interim maintenance. 9. The said stand taken by both the parties appears to be quite reasonable and fair, as otherwise remitting the matter to the Family Court for adjudicating on interim maintenance O.P. (Crl.) No.7/2020 7 may entail further delay, which may detrimentally affect the claims of the respondents. The total amount of final maintenance claims made in this case is Rs.15,000/- per month. 10. Accordingly, the following directions and orders are passed:- - (i) The petitioner should pay interim maintenance to respondents 1 to 3 at the rate of Rs.8,000/- per month for all the three respondents taken together for the period from the date of the petition upto the date of the final disposal of the M.C. - (ii) 50% of the total arrears of the interim maintenance for the period from the date of petition upto 31.10.2020 shall be deposited by the petitioner before the Family Court, Palakkad, within 6 weeks and the balance 50% thereof shall be deposited by the petitioner before the Family Court within 6 weeks thereafter. Upon such deposits, the Family Court, Palakkad, will forthwith release the same to all the 3 respondents, through the 1[st] respondent. - (iii) The petitioner should deposit interim maintenance at the O.P. (Crl.) No.7/2020 8 rate of Rs.8,000/- per month to respondents 1 to 3 for the month of November and December 2020, on or before 10.12.2020 and for the periods from January 2021 onwards, upto the date final disposal of the M.C., by the 10[th] day of every month. Upon such deposits, the Family Court, Palakkad, will forthwith release the same to respondents 1 to 3 herein through the 1[st] respondent. 11. In case the petitioner breaches any one of the abovesaid conditions regarding payment of interim maintenance, then the condition in Ext.P-7 to the limited extent that the petitioner should pay 50% of the maintenance arrears as a condition for consideration of the maintenance case on merit shall stand set aside subject to the following conditions. _In case the petitioner breaches any one of the abovesaid conditions regarding payment of interim maintenance, then the impugned condition in Ext.P-7 that the petitioner should deposit 50% of the maintenance arrears will stand automatically revived and the respondents will be at liberty to seek execution of the said provision in Ext.P-7 and subject to the condition that any amounts paid by the petitioner may be deducted and adjusted towards enforcement of that claim._ 12. The Family Court will take all earnest efforts to O.P. (Crl.) No.7/2020 9 ensure the final disposal of M.C. No.119/2017, after hearing both sides, without much delay, preferably within a period of 5 months, at any rate, within an outer time limit of 6 months, from the date of production of a certified copy of this judgment. 13. Before parting with this case, it may be pertinent to note that the Apex Court has recently pronounced judgments dated 04.11.2020 on Crl.A. No.730/2020 [(arising out of SLP (Crl) No.9503/2018 in the case in _**Rajnesh v. Neha & Another,**_ wherein various directions and guidelines were issued by their Lordships of the Apex Court, in the matter of adjudication of maintenance claims. 14. The Family Court will ensure that the various guidelines and directions issued by the Apex Court in the said judgment as regards the adjudication of the final claims for maintenance may be strictly adhered to. The parties will ensure that a copy of the said judgment dated 04.11.2020 of the Apex Court in _**Rajnesh'**_ s case (supra) may be made available for the perusal of the Family Court, in case the said judgment is not reported in a law journal by then. 15. Needless to say, since both the parties have now O.P. (Crl.) No.7/2020 10 agreed that this Court may pass orders in the matter of interim maintenance in this case, the issue regarding interim maintenance will be regulated as ordered hereinabove, as far as this case is concerned. 16. Needless to say, as this Court has now quashed the impugned condition in Ext.P-7 regarding deposit of any procedural maintenance arrears as a condition for deciding maintenance case on merits, subject to the conditions mentioned hereinabove, all steps taken by-the Family Court, including coercive steps for enforcement of the said impugned condition will stand rescinded as the said impugned condition has been so quashed and for the sake of clarity, the Family Court may immediately pass orders recalling any coercive steps issued in that regard for the enforcement of the said impugned condition in Ext.P-7, including non-bailable warrant, if any, issued in that regard. The Registry will forward copies of the judgment to Family Court, Palakkad, who is dealing with MC No.119/2017 for necessary information. O.P. (Crl.) No.7/2020 11 With these observations and directions, the above Original Petition (Criminal) will stand finally disposed of. **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//20112020 O.P. (Crl.) No.7/2020 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PETITION IN M.C.NO.119/2017 ON THE FILE OF THE FAMILY COURT, PALAKKAD.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 23.2.2018 IN M.C.NO.119/2017.** **EXHIBIT P3** **TRUE COPY OF C.M.P.NO.581/2019 IN M.C.NO.119/2017 BEFORE THE FAMILY COURT, PALAKKAD.** **EXHIBIT P4 TRUE COPY OF CRL.M.P.NO.582/2019 IN M.C.NO.119/2017 BEFORE THE FAMILY COURT, PALAKKAD.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 25.9.2019 IN OP(CRL.)NO.416/2019.** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 26.11.2019 IN CRL.M.P.NO.581/2019.** **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 26.11.2019 IN CRL.M.P.NO.582/2019.** ## **RESPONDENTS' EXHIBITS: NIL**