Noushad v. State of Kerala, Saleena and Muhammed Shamil

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 19 [ TH ] DAY OF JULY 2023 / 28TH ASHADHA, 1945 ``` ## **`CRL.MC NO. 1660 OF 2023 AGAINST THE ORDER/JUDGMENT IN MC 366/2020 OF FAMILY COURT,`** ## **`TIRUR`** ## **`PETITIONER/S:`** ``` NOUSHAD AGED 41 YEARS S/O BEERANKUTTY, KADEKKAL, CHIRAMANGALAM, VIA PARAPPANANGADI, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676303 ``` ``` BY ADVS. M.VIVEK RABINDRANATH V.T.MADHAVANUNNI ``` ## **`RESPONDENT/S:`** ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 SALEENA W/O.NOUSHAD, KADEKKAL, CHIRAMANGALAM, PARAPPANANGADI POST, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676303 ``` ``` 3 MUHAMMED SHAMIL SHAMIL,S/O.NOUSHAD, AGED 10 YEARS, MINOR, REPRESENTED BY MOTHER AND NEXT FRIEND SALEENA, W/O.NOUSHAD, KADEKKAL, CHIRAMANGALAM, PARAPPANANGADI POST, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676303 ``` ``` SRI. VIPIN NARAYAN, SR. PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.07.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 1660 OF 2023 ``` ``` 2 ``` ## **ORDER** The petitioner is the husband of the 2nd respondent herein. The 3rd respondent is his minor son. The petitioner has been arrayed as the respondent in M.C. No. 366/2020 on the file of the Family Court, Tirur, which is instituted under Section 125 of the Code of Criminal Procedure (“the Code” for the sake of brevity), seeking maintenance from 05.02.2017. 2. The learned counsel appearing for the petitioner submitted that prior to the filing of M.C. No. 366/2020, the 2nd respondent had approached the Judicial Magistrate of the First Class, Parappanagadi, and had preferred M.C. No. 21/2017 invoking section 12(i) of Protection of Women from Domestic Violence Act, 2005 (“Domestic Violence Act” for the sake of brevity). In the said petition, she had sought various reliefs, which include a return of gold ornaments, compensation, maintenance, etc., from the petitioner and his family members. 3. The learned Magistrate, while allowing the application partly by order dated 30.10.2018, had directed the petitioner to pay a sum of Rs. 3,000/- per mensem to the 2nd respondent and to pay a sum of Rs. ``` CRL.MC NO. 1660 OF 2023 ``` ``` 3 ``` 2,500/- per mensem to his minor son. In terms of the directions issued by the learned Magistrate, the petitioner has been paying maintenance from 18.02.2017 onwards. According to the learned counsel, it was by suppressing the above fact that M.C. No. 366/2020 was filed before the Family Court, Tirur, alleging that she has not been paid maintenance from 05.02.2017. 4 It is on these assertions that this petition is filed seeking to quash Annexure-A2 proceedings in M.C. No. 366/2020 on the file of the Family Court, Tirur. 5. The learned counsel appearing for the petitioner submitted that an identical question had come up for consideration before the Hon’ble Supreme Court in **Rajnesh v. Neha & Anr.[ 1 ] ,** and while issuing directions, the Hon’ble Supreme Court had occasion to deal with the issue of overlapping jurisdiction. According to the learned counsel, the Hon’ble Apex Court had made it clear that it is mandatory for the applicant to disclose the previous proceeding and the orders passed thereon in the subsequent proceeding. The failure to disclose the earlier application is fatal, contends the learned counsel. > 1 ( 2021) 2 SCC 324 ``` CRL.MC NO. 1660 OF 2023 ``` ``` 4 ``` 6. Though notice was issued to the party respondents by speed post as well as by serving to the learned counsel appearing, they have not chosen to appear. 7. The learned Public Prosecutor submits that a contention raised by the petitioner is covered by the law laid down in **Mahinkutty & others v. Anshida[ 2 ]** . 8. I have considered the submissions advanced. 9. In **Rajnesh** (supra), the Hon’ble Supreme Court in Para Nos. 127 and 128 had dealt with the issue of overlapping jurisdiction. The following directions were issued: **“127.** In view of the foregoing discussion as contained in Part B — I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India. ## **(a) Issue of overlapping jurisdiction** **128.** To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that: > 2 (2021) 3 KLT 230 ``` CRL.MC NO. 1660 OF 2023 ``` ``` 5 ``` **128.1.** (i) Where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set-off, of the amount awarded in the previous proceeding(s), while determining whether any further amount is to be awarded in the subsequent proceeding. **128.2.** (ii) It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding. **128.3.** (iii) If the order passed in the previous proceeding(s) requires any modification or variation, it would be required to be done in the same proceeding.” 10. The Hon’ble Supreme Court had made it clear that where successive applications for maintenance are made by a party under different statutes, the Court would consider the adjustment of set-off of the amount awarded in the previous proceedings while determining whether any further amount is to be awarded in the subsequent proceedings. It is also held that it would be mandatory for the applicant to disclose the previous proceedings and the orders passed thereon in the subsequent proceedings. The party is also required to approach the Court wherein he requires modification or variation. 11. In the case on hand, the contention of the petitioner is that the party respondent had not disclosed the previous proceedings in the ``` CRL.MC NO. 1660 OF 2023 ``` ``` 6 ``` petition filed before the Family Court. Section 20 of the Domestic Violence Act speaks of monetary relief. It lays down that while disposing of the application under Section 12, the Magistrate may direct the respondent to pay to meet the expenses incurred and losses suffered by the aggrieved person and any child of the said aggrieved person as a result of the domestic violence and such relief may include but not limited to (a) the loss of earnings; (b) the medical expenses; (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code or any other law for the time being in force. Such monetary relief granted under this Section shall be adequate, fair and reasonable, and consistent with the standard of living to which the aggrieved person is accustomed. As rightly submitted by the learned counsel, the party respondent was bound to disclose the passing of the order in the earlier proceeding before the court at the time of filing of the application under Section 125 of the Code. It would not be permissible for the wife to claim the amount of maintenance ``` CRL.MC NO. 1660 OF 2023 ``` ``` 7 ``` awarded in each of the said proceedings independently. If the wife has not disclosed the earlier proceeding, it would be open to the petitioner to claim adjustment of the amount awarded while the 2[ nd ] proceeding is being considered. 12. In that view of the matter, I am of the opinion that this petition is disposed of by directing the Family Court to take note of the earlier proceeding and grant relief accordingly. ## **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` CRL.MC NO. 1660 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 1660/2023`** ## **`PETITIONER ANNEXURES`** ``` Annexure A1 A CERTIFIED COPY OF THE JUDGEMENT IN M.C NO..21/2017 ON THE FILE OF THE J.F.C.M COURT, PARAPPANANGADI ``` ``` Annexure A2 A TRUE COPY OF THE M.C. NO.366/2020 ON THE FILE OF THE FAMILY COURT, TIRUR. ``` ``` Annexure A3 A COPY OF THE COUNTER FILED BY THE PETITIONER IN M.C. NO.366/2020 Annexure A4 A CERTIFIED COPY OF THE DIARY EXTRACT OF THE J.F.C.M. COURT, PARAPPANANGADI IN M.C.NO.21/2017 SHOWING PAYMENT OF MAINTENANCE TO THE RESPONDENTS FROM 18/02/2017 TO 30/10/2018 ``` ``` Annexure A5 A CERTIFIED COPY OF THE DOCKET ORDER IN C.M.P.NO.1807/2021 IN M.C.NO.21/2017 OF THE J.F.C.M.PARAPPANGADY ```