Kerala High Court

Muhammed Hakkim vs Asmabi M. P on 16 September, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
             THE HONOURABLE MRS. JUSTICE MARY JOSEPH
   THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
                     OP(CRL.) NO. 201 OF 2021
   AGAINST THE ORDERS IN C.M.P.No.03/2021 IN MC 121/2015 DATED
     05.03.2021 AND C.M.P.NO.02/2021 IN M.C.NO.121/2015 DATED
                03.04.2021 OF FAMILY COURT, TIRUR
PETITIONER/PETITIONER:

          MUHAMMED HAKKIM,
          AGED 58 YEARS,
          S/O. UMMAYYAKUTI, CHERKANDI PARAMP,
          CHERUVANNOOR AMSOM DESOM, CHERUVANNOOR P. O.,
          KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673 524.
          BY ADV.SRI.K.V.BHADRA KUMARI


RESPONDENT/PETITIONER:

          ASMABI M. P.,
          AGED 40 YEARS,
          D/O. MOYDEEN (LATE), MANHALAM PARAMBATH HOUSE, OZHUR,
          KORADU, P. O. PANANGATTUR, TIRUR TALUK,
          MALAPPURAM DISTRICT, PIN - 676302.
          BY ADVS.
                   SRI.BINU V V VEETTIL VALAPPIL
                   SRI.S.K.PREMJITH MENON



     THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 16.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(Crl.)No.201 of 2021

                                  2




                               JUDGMENT

Dated this the 16th day of September, 2021

Original Petition on hand is filed challenging orders

passed by Family Court, Tirur (for short 'the court below') on

05.03.2021 and 03.04.2021 respectively in C.M.P.Nos.03/21 and

02/21 in M.C.No.121/2015. The copies of the impugned orders

are produced in the petition on hand as Exts.P7 and P8. Ext.P7

is passed in I.A.Nos.01 & 03/2021 in O.P.No.177/2015 and

C.M.P.No.03/2021 in M.C.No.121/2015. Ext.P8 order was passed

in I.A.No.02/2021 and 04/2021 in O.P.No.177/2015 and

C.M.P.No.02/2021 in M.C.No.121/2015. But the challenge is only

to the extent, C.M.P.Nos.02 and 03/2021 in M.C.No.121/2015

were dismissed by court below.

2. C.M.P.No.02/2021 was filed by the petitioner herein

seeking to accept objection filed by him additionally before the

court below. C.M.P.No.03/2021 was filed seeking to permit the

petitioner to examine some more witnesses who are proposed

to be examined in the witness list filed as Ext.P5.

O.P.(Crl.)No.201 of 2021

3. It was contended by the petitioner in

C.M.P.No.02/2021 that on going through the case files on the

previous day, his proper name, Abdul Hakkim was omitted to

be mentioned and that at the time when the petitioner in the

M.C left the matrimonial home itself gold chain of 2½

sovereigns which was brought by him from abroad was taken

without his consent. Therefore, he needs to file an additional

objection in the M.C to supply those omissions and seeking

permission of the court for that C.M.P.No.02/2021 was filed. In

C.M.P.No.03/2021, it was stated by the petitioner that an

agreement was entered into between himself and the wife and

the attestors of the agreement are some of the witnesses

propsed to be examined. Examination of another witness was

also proposed for proving the job and income of the petitioner

in the M.C. The other witness proposed to be examined is the

Secretary of Kuttikadavu Mahallu Juma-Ath Palli Committee,

Kozhikode which has issued the Certificate of Marriage. The

court below dismissed both applications by the impugned

orders. The reason of the court below while dismissing

C.M.P.No.02/2021 was that the additional objection was sought

to be filed at a much belated stage after closing the evidence of O.P.(Crl.)No.201 of 2021

the petitioner. The court below has observed that the

contentions raised by the petitioner in the additional objection

ought to have been filed by the petitioner prior to the

commencement of the trial itself.

4. The court below has observed while dismissing

C.M.P.No.03/2021 that the petitioner had already availed

opportunity for adducing evidence and therefore the prayer for

examination of additional witnesses after trial is not permissible.

Accordingly, C.M.P.No.03/2021 was also dismissed. This Court

finds no reason to deviate from the view taken by the court

below while dismissing C.M.P.No.02/2021. But, it is noticed that

the reasoning of the court below for dismissing

C.M.P.No.03/2021 is incorrect.

5. The court below has noted in Paragraph 8 of Ext.P7

that, PW1 was cross examined on 05.11.2020 and the

examination of the witnesses from the side of the petitioner was

completed on 09.12.2020. The court below has further

observed that during cross examination of PW1, R1 and R2 were

marked from the side of the respondent and thus the

respondent had availed the opportunity to adduce evidence. O.P.(Crl.)No.201 of 2021

6. It is pertinent to note that C.M.P.No.03/2021 was filed

on 04.01.2021. Therefore, the observation of the court below

that the petitioner had already availed the opportunity to

adduce evidence is devoid of merits. True that two documents

were marked as Exts.R1 and R2, but only during cross

examination of PW1. The court below has no case that after

closing the evidence of the petitioner on 09.12.2020, a specific

posting was given for the petitioner to adduce evidence. For

the reason that the petitioner has opted to mark two documents

during cross examination of PW1, the court below ought not to

have observed that he had already availed the opportunity to

adduce evidence. It is noticed that C.M.P.No.03/2021 was also

filed by the petitioner in the month of January, 2021 without any

delay. Since the court below failed to post the case specifically

for adducing evidence by the petitioner, this Court has no

hesitation to say that the court below is erred and unjustified in

dismissing it by the impugned order.

7. On a glance at the witness list filed before the court

below alongwith C.M.P.No.03/2021 it is noted that the purpose

of examination with reference to each witnesses is not stated

therein. In the said context, the petitioner shall take the O.P.(Crl.)No.201 of 2021

opportunity to file a fresh witness list before the court below. In

that event the court below shall re-open the evidence suo motu

and permit the petitioner to examine the witnesses proposed to

be examined in the fresh witness list. At any rate, the

petitioner shall opt to file a fresh witness list before the court

below within three weeks from this day.

O.P.(Crl.) stands allowed in part.

sd/-

MARY JOSEPH JUDGE

NAB O.P.(Crl.)No.201 of 2021

APPENDIX OF OP(CRL.) 201/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE MAINTENANCE PETITION FILED BY THE RESPONDENT AS M.C.NO.121/2015.

EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN IN M.C.NO.121/2015.

EXHIBIT P3 TRUE COPY OF THE PETITION FILED BY THE PETITIONER SEEKING PERMISSION TO FILE ADDITIONAL COUNTER AS CMP NO.2/2021 IN M.C.NO.121/2015.

EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN CMP NO.2/2021 IN M.C.NO.121/2015.

EXHIBIT P5 TRUE COPY OF THE WITNESS LIST AND PETITION TO ACCEPT THE WITNESS LIST.

EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN CMP NO.3/2021 IN M.C.NO.121/2015.

EXHIBIT P7 TRUE COPY OF THE COMMON ORDER PASSED BY THE COURT BELOW IN CMP NO.3/2021 IN M.C.NO.121/2015 ALONG WITH I.A.NOS.1/2021 AND 3/2021 IN O.P.NO.177/2015 DATED 5.3.2021.

EXHIBIT P8 TRUE COPY OF THE COMMON ORDER PASSED BY THE COURT BELOW DATED 3.4.2021 IN CMP NO.2/2021 IN M.C.NO.121/2015 ALONG WITH I.A.NOS.2/2021 AND 4/2021 IN O.P.NO.177/2015.

   RESPONDENT'S EXHIBITS:    NIL

                                                          //TRUE COPY//

                                                           P A TO JUDGE