Kerala High Court
Muhammed Ashraf C vs Dr. Fathimabi on 2 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943
OP(CRL.) NO. 42 OF 2022
IN CRMP 34/2017 FAMILY COURT, MALAPPURAM
PETITIONER/RESPONDENT:
MUHAMMED ASHRAF C, AGED 53 YEARS
CHEERANGAN HOUSE, VILLOOR, INDIANOOR PO, KOTTAKKAL,
MALAPPURAM DISTRICT, MALAPPURAM, PIN - 676503
BY ADVS. P.SAMSUDIN
SHYAM NAIR
LIRA A.B.
M.ANUROOP
RESPONDENTS/PETITIONERS:
1 DR. FATHIMABI, AGED 41 YEARS
MINOR REPRESENTED BY HIS MOTHER DR. FATHIMABI M,
MANGATTIL HOUSE, SWAGATHAMAD, CHERUSHOLA P O,
TIRUR TALUK, MALAPPURAM DISTRICT, PIN- 676 510
MALAPPURAM, PIN - 676510
2 FASADUL HIND FATHAH ALI TIPPU, AGED 10 YEARS
RESENTED BY HIS MOTHER DR. FATHIMABI, SWAGATHAMAD,
CHERUSHOLA P O, TIRUR TALUK,
MALAPPURAM DISTRICT.
MALAPPURAM, PIN - 676510
BY ADVS.DR. FATHIMABI(Party-In-Person)
FASADUL HIND FATHAH ALI TIPPU(Party-In-Person)
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 02.02.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CRL.) NO. 42 OF 2022
2
JUDGMENT
Petitioner is before this Court challenging the common
order passed by Family Court, Malappuram on 14.01.2022
in CMP (Ex) No.34/2017, CMP (Ex) No.305/2017, CMP (Ex)
No.411/2018 and CMP (EX) No.259/2019 in M.C
No.115/2015. Order passed by Family Court in M.C
No.115/2015 granting monthly maintenance allowance to
petitioners is sought to be executed by the above petitions.
As per order passed in the M.C, the 1 st petitioner wife was
granted monthly maintenance allowance at the rate of
Rs.7,000/- and the minor child staying alongwith her was
granted monthly maintenance at the rate of Rs.3,000/- and
the amounts were directed to be paid from 26.11.2014. In
CMP (Ex) No.305/2017, a sum of Rs.80,000/- was sought to
be realised towards arrears of maintenance from 26.01.2017
till 25.09.2017, in CMP (Ex).No.411/2018, a sum of
Rs.1,20,000/- towards arrears of maintenance for 12 months
from 26.09.2017 till 25.09.2018 and in CMP No.259/2019,
OP(CRL.) NO. 42 OF 2022
Rs.1,20,000/-, from 26.09.2018 till 25.09.2019 for a period
of 12 months is sought to be realised. Thus Rs.5,80,000/- is
the total sum claimed to be realised through the above three
petitions filed in execution. The execution court was pleased
to issue NBW against the respondent in the respective
petitions and aggrieved thereby, the respondent has
approached this Court in the present petition seeking to set
aside the order issuing NBW against the petitioner. The
specific contention taken by the learned counsel for the
petitioner was that the 1st petitioner in the M.C was
employed as Unani Doctor in a Govt. Dispensary at
Karassery and is having sufficient income to maintain her.
Suppressing the above factum, M.C was filed claiming
monthly maintenance allowance and a favorable order was
obtained. On realising the above, the petitioner has filed an
application under Section 127 Cr.P.C seeking for modification
of the order on the basis and that is pending consideration of
Family Court, Malappuram. It is further contended that the
respondent has filed Transfer Petition (Crl.) No.16/2018
before this Court seeking to transfer M.C No.102/2017 filed
OP(CRL.) NO. 42 OF 2022
under Section 127 Cr.P.C from Family Court, Malappuram to
Family Court, Kozhikode and obtained a stay of all further
proceedings in the above M.C. In the meantime that
execution petitions have been filed to execute the order in
M.C No.115/2015. According to him, the Family Court has
issued NBW against the petitioner in contravention of Section
421 Cr.P.C and therefore, the order assailed is invalid and
liable to be set aside.
2. This Court had noticed from Ext.P2 order that it
was passed on 22.07.2016 and the M.C seeking monthly
maintenance allowance towards the wife was filed in the year
2015. The order in the M.C was passed on 17.09.2016. It is
revealed from the copy of the appointment order produced
alongwith the petition on hand that the respondent was
appointed as Unani Doctor in the year 2016. M.C having
been filed in the year 2015, evenif the respondent got
appointment as Unai Doctor in the year 2016, her claim for
monthly maintenance allowance from the date of filing of M.C
till the order of appointment, will not be defeated. She is
OP(CRL.) NO. 42 OF 2022
entitled to get the same. The child's claim for maintenance
allowance also will not be impacted. Therefore, the 1 st
respondent's entitlement for the monthly maintenance
allowance from the date of filing of the M.C and the 2 nd
respondent's entitlement monthly maintenance allowance for
the entire period will not be affected by an order of
modification, if passed by Family Court in M.C No.102/2017.
3. The petitioner has not raised a claim that he had
already paid any amount towards monthly maintenance
allowance stands ordered in favour of respondents 1 and 2
in M.C No.115/2015. In the above circumstances, the
petitioner is directed to make a deposit of Rs.70,000/- before
the Family Court within two weeks from this day. The
petitioner is also directed to deposit the balance sum in
accordance with their entitlement as discussed above (for the
2nd respondent till the month of January 2022) in two equal
monthly installments in the months of March and April. The
petitioner shall also continue to pay the monthly
maintenance allowance stands ordered in favour of the 2nd
respondent and left for payment after deposit of arrears as
OP(CRL.) NO. 42 OF 2022
noted above. The execution of NBW issued in the execution
petitions shall be kept in abeyance for two weeks from this
day.
The default of the petitioner in depositing Rs.70,000/-
before the Family Court in the above execution proceedings
within two weeks from the date of receipt of a copy of this
order therein, would enure to revival of execution of the non-
bailable warrant already issued and kept in abeyance. If the
petitioner has successfully complied with the directions
issued by this Court in this order by making payment of
arrears in instalments the NBW shall be recalled by the
Family Court. On failure, the Family Court shall, proceed with
the execution of the NBW issued by it as if the order has not
been passed by this Court.
The O.P(Crl.) is disposed of as above.
Sd/-
MARY JOSEPH
JUDGE
al/-
OP(CRL.) NO. 42 OF 2022
APPENDIX OF OP(CRL.) 42/2022
PETITIONER EXHIBITS
Exhibit1 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE RESPONDENT IN IA
184/2017 IN OP (GW) 83/2017 ON THE
FILES OF FAMILY COURT MALAPPURAM
Exhibit2 TRUE COPY OF THE ORDER OF APPOINTMENT
DATED 22-07-2016 ISSUED TO THE
RESPONDENT BY THE DISTRICT PROGRAM
OFFICER, AROGYA KERALAM
Exhibit3 TRUE COPY OF MEMORANDUM IN MC
102/2017
Exhibit4 TRUE COPY OF THE COUNTER IN CMP (EX)
NO. 34/2017 FILED BY THE PETITIONER
Exhibit5 TRUE COPY OF THE COMPOSITE ORDER
DATED 14-01-2022 IN CMP (EX) NO.
34/2017, CMP (EX) 305/2017, CMP
(EX)411/2018, CMP (EX) 259/2019 IN
M.C. NO. 115/2015 ON THE FILES OF
FAMILY COURT, MALAPPURAM.
