Mujeeb Rahman vs Hafseena K.H
2021 Latest Caselaw 23976 Ker

Citation : 2021 Latest Caselaw 23976 Ker
Judgement Date : 13 December, 2021

Kerala High Court

Mujeeb Rahman vs Hafseena K.H on 13 December, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
             THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 13TH DAY OF DECEMBER 2021/22ND AGRAHAYANA, 1943
                      OP(CRL.) NO. 488 OF 2021
AGAINST THE ORDER DATED 08.11.2021 IN CRL.MP NO.2076/2021 IN
   UNNUMBERED CRIMINAL APPEAL OF 2021 OF SESSIONS COURT,
                              PALAKKAD


PETITIONER/PETITIONER AND APPELLANT IN THE COURT BELOW:

         MUJEEB RAHMAN,
         AGED 42 YEARS,
         S/O. MUHAMMED HUSSAIN, KALLAMKULAM HOUSE,
         KUTHANNUR POST, PALAKKAD.

         BY ADVS.SRI.RAJESH SIVARAMANKUTTY
                 SMT.K.VIJINA
                 SRI.K.V.ANTONY
                 SRI.ARUL MURALIDHARAN


RESPONDENTS/RESPONDENTS AND RESPONDENTS IN THE COURT BELOW:

    1    HAFSEENA K.H.
         D/O. HAMSA, AGED 28 YEARS,HAFSIL MANZIL, UPASANA
         NAGAR, PIRAYIRI, PALAKKAD, PIN - 678004,

    2    NIYA FATHIMA,
         AGED 3 YEARS,(MINOR), D/O. MUJEEB RAHMAN, HAFSIL
         MANZIL, UPASANA NAGAR, PIRAYIRI, PALAKKAD,
         PIN- 678004, (MINOR REPRESENTED BY MOTHER -
         GUARDIAN 1ST RESPONDENT)


    THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
13.12.2021,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 O.P (Crl) No.488 of 2021           2




                           JUDGMENT

Dated this the 13th day of December, 2021

The Challenge in this Original Petition is against an order

passed by Court of Sessions, Palakkad (for short 'the court

below') in Criminal Miscellaneous Petition No.2076/2021 in

Unnumbered Criminal Appeal, copy of which is appended to the

petition on hand as Ext.P5. Crl.M.P.No.2076/2021 was filed by

the petitioner herein seeking to condone the delay of 768 days

occurred in filing the appeal.

2. Petitioner is the respondent in M.C.No.11/2019 on the

files of Judicial First Class Magistrate Court-II, Palakkad. Vide the

order passed in M.C.No.11/2019 the petitioner was directed to

pay Rs.10,000/- monthly to the respondents who are the wife

and the minor child. The petitioner being abroad was not in

receipt of summons from JFCM Court-II and therefore could not

contest the M.C. The petitioner assailed the order in the appeal,

with an application to condone delay of 768 days. Application

was filed seeking to condone the delay and the court below has

passed an order allowing the application on condition of deposit

of 50% of the arrears of maintenance commencing from June,

2019 till the date of order before JFCM Court-II, Palakkad within

a period of one month. According to the learned counsel the

order in the M.C. was taken in challenge for the reason mainly

that it was not an order passed on contest. According to him, in

the above context, the court below ought not to have issued a

direction to deposit 50% of the arrears of monthly maintenance

allowance as a condition precedent.

3. This Court finds that M.C. was filed in the year 2019

when petitioner was abroad. The petitioner does not have a

case that summons was not served upon him in the M.C. He did

not appear before the JFCM Court-II, Palakkad at any point of

time and accordingly direction was issued in the order to pay

maintenance allowance at the rate of Rs.10,000/- to his wife and

child. Therefore, the appeal was preferred against that order

with an application to condone delay of 768 days. The court

below allowed the application but on condition to deposit 50% of

the arrears of maintenance from the date of the petition till the

date of that order.

4. More than two years after passing of the impugned

order that it was challenged in appeal. Therefore, for the

respondents, maintenance allowance remained a right confined

in paper. The court below has issued such a direction to meet

the interest of justice and this Court is declined to interfere with.

O.P.(Crl.) fails and is dismissed.

Sd/-

MARY JOSEPH JUDGE

MJL

APPENDIX

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE RECEIPT DATED 24.05.2017 ISSUED BY THE 1ST RESPONDENT TO THE FATHER OF THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE PASSPORT ISSUED TO THE PETITIONER BEARING THE IMMIGRATION VISA DATED 21.04.2021 OF COCHIN INTERNATIONAL AIRPORT.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 03.06.2019 IN CRIMINAL MISCELLANEOUS PETITION NO.1062/2019 IN M.C.NO. 11/2019 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE - II, PALAKKAD,

EXHIBIT P4 TRUE COPY OF THE CRIMINAL APPEAL AND THE PETITION AS CRL.M.P NO. 2076/2021 IN UNNUMBERED CRIMINAL APPEAL OF 2021 FILED THEREWITH TO CONDONE DELAY OF 768 DAYS, FILED BY PETITIONER BEFORE THE LEARNED SESSIONS JUDGE, PALAKKAD DATED 10TH AUGUST, 2021.

EXHIBIT P5 CERTIFIED COPY OF THE ORDER DATED 08.11.2021 IN CRIMINAL MISCELLANEOUS PETITION NO. 2076/2021 IN UNNUMBERED CRIMINAL APPEAL PASSED BY THE LEARNED SESSIONS JUDGE, PALAKKAD.