Kerala High Court
Muhammed vs Muhammed on 31 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943
OP(Crl.).No.107 OF 2021
AGAINST THE ORDERS DATED 21.01.2021 IN C.M.P. NO. 2/2020 AND
C.M.P. NO. 5 OF 2020 IN M.C. NO. 142/2018 OF FAMILY COURT,
MALAPPURAM
PETITIONER/RESPONDENT IN M.C.:
MUHAMMED
AGED 68 YEARS
S/O. CHEKUTTY, KORATH HOUSE,
KADUNGAPURAM POST,
PUZHAKKATEERI VILLAGE,
PUZHAKKATEERI AMSOM,
KADUNGAPURAM DESOM,
PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT 679 321
BY ADV. SRI.E.C.AHAMED FAZIL
RESPONDENTS/PETITIONER IN M.C.:
SULAIKHA
AGED 57 YEARS
D/O. ABU, THOTTIYIL HOUSE,
PUZHAKATIRI POST,
PUZHAKATTEERI VILLAGE,
PUZHAKATTEERI AMSOM,
PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT 679 321
BY ADV. SRI.P.K.MOHAMED JAMEEL
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 31.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(Crl.) No.107 OF 2021 2
JUDGMENT
In this original petition filed under Section 227 of the
Constitution of India, the petitioner who is the counter petitioner
in M.C.No.142/2018 pending before the Family Court
Malappuram, seeks to call for the records leading to the M.C.
and set aside the Ext.P5 order in C.M.P.No.2/2020 in M.C.
No.142/2018 dated 21.01.2021 and Ext.P6 order in
I.A.No.2/2020 in O.P. No.261/2018 and C.M.P.No.5/2020 in
C.M.P.No.511/2018 in M.C. No.142/2018 dated 21.01.2021 and
quash the same.
2. M.C.No.142/2018 is a petition filed under Section
125 of the Cr.P.C., by the respondent against the petitioner, who
is her husband, seeking for her maintenance. The Ext.P5 order
indicates that an application for interim maintenance was filed
by the respondent way back on 30.06.2018 and even after
obtaining numerous adjournments, no objection was filed and
ultimately, by order dated 30.01.2020, the court passed interim
maintenance @ Rs.3,000/- per month. That order was sought to
be cancelled by the petitioner. By the impugned order, the
learned Judge dismissed the petition, against which the petitioner
has moved this Court.
3. He has also challenged the Ext.P6 order of the same
day, by which the court said that if the arrear maintenance is not
paid within three weeks, his defence shall be struck off.
4. I heard the learned counsel on both sides.
5. The learned counsel for the respondent submitted
that the Ext.P6 order is no longer in force, by an order dated
12.02.2021, that petition was dismissed by the Family Court.
That means, challenge against Ext.P6 has become infructuous.
Even otherwise, from the order itself it is clear that the trial court
was sounding a caution, alerting the petitioner for paying the
arrear of maintenance amount.
6. The learned counsel for the petitioner has strongly
argued for cancelling the Ext.P5 order. According to him, the
petitioner has no means of his own; he is now aged about 70
years, that such a petition was moved by the respondent as a
counterblast to his petition seeking maintenance from his son.
But according to the learned counsel for the respondent, after
abandoning the wife and children the petitioner has contracted a
second marriage and has two children in the second wife. Going
by the order under challenge, I am not convinced that
overwhelming reasons are made out for interfering with the
same. Such an order of interim maintenance was passed, after
affording sufficient opportunity to the petitioner, who is the
counter petitioner in the M.C. for filing his statement of
objection. The impugned order also suggests that the learned
Judge has commented on the attitude and apathy of the petitioner
in not prosecuting the matter vigilantly. The petition was
dismissed finding that the petitioner had not paid any amount
towards the maintenance of the wife, by paying interim
maintenance ordered by the Court. The learned counsel could not
point out any jurisdictional error warranting interference with the
order under challenge.
7. At last, the learned counsel submitted that if this
Court is inclined to fix a reasonable amount, he is prepared to
pay. I am afraid, in this jurisdiction this Court is not expected to
make any direction in that regard. After all, the trial court has
passed only a tentative order. If he has any grievance regarding
the quantum, it can be agitated before that court.
This Original Petition is dismissed.
Sd/-
K.HARIPAL
JUDGE
DCS/31.03.2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF M.C NO 142 OF 2018 ON THE FILES OF
FAMILY COURT, MALAPPURAM
EXHIBIT P1 A TRUE COPY OF OBJECTION IN M.C NO. 142 OF 2018 ON
THE FILES OF FAMILY COURT, MALAPPURAM
EXHIBIT P1 B TRUE COPY OF ORDER DATED 31-08-2015 IN M.C NO. 393
OF 2013 PASSED BY FAMILY COURT, MALAPPURAM
EXHIBIT P2 TRUE COPY OF CMP NO. 511 OF 2018 IN M.C NO. 142 OF
2018 ON THE FILES OF FAMILY COURT, MALAPPURAM
EXHIBIT P2 A TRUE COPY OF OBJECTION IN CMP NO. 511 OF 2018 IN
M.C NO. 142 OF 2018 ON THE FILES OF FAMILY COURT,
MALAPPURAM
EXHIBIT P3 TRUE COPY OF CMP NO. 2 OF 2020 IN M.C NO. 142 OF
2018 ON THE FILES OF FAMILY COURT, MALAPPURAM
EXHIBIT P4 TRUE COPY OF CMP NO. 5 OF 2020 IN M.C NO. 142 OF
2018 ON THE FILES OF FAMILY COURT, MALAPPURAM
EXHIBIT P4 A TRUE COPY OF OBJECTION IN CMP NO. 5 OF 2020 IN M.C
NO. 142 OF 2018 ON THE FILES OF FAMILY COURT,
MALAPPURAM
EXHIBIT P5 TRUE COPY OF ORDER DATED 21-01-2021 IN CMP NO. 2
OF 2020 IN M.C NO. 142 OF 2018 ON THE FILES OF
FAMILY COURT, MALAPPURAM
EXHIBIT P6 TRUE COPY OF ORDER DATED 21-01-2021 IN CMP NO. 5
OF 2020 IN M.C NO. 142 OF 2018 ON THE FILES OF
FAMILY COURT, MALAPPURAM.
