Naseema E.M vs Muhammed Asharaf
2022 Latest Caselaw 10332 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
  FRIDAY, THE 7TH DAY OF OCTOBER 2022/15TH ASWINA, 1944
                 OP(CRL.) NO.229 OF 2022
  AGAINST THE EXECUTION PROCEEDINGS IN M.C.NO.637/2009,
   M.C.No.83/2014 AND M.C.No.235/2017 OF FAMILY COURT,
                        MALAPPURAM
PETITIONER/1st PETITIONER:
          NASEEMA E.M., AGED 38 YEARS,
          D/O.VEERANKUTTY MUSLIYAR, EDASSERIMALAYIL VEEDU,
          'RAHATH MANZIL', IRATTAMOOZHI, CHEEKKODE,
          MALAPPURAM DISTRICT, PIN - 673 640.

         BY ADVS.
         SAMSUDIN PANOLAN
         MILAN RACHEL MATHEW(K/001735/2020)
         LIRA A.B.(K/001251/2021)

RESPONDENTS/RESPONDENT,   POLICE    &   PASSPORT    ISSUING

AUTHORITY:

1 MUHAMMED ASHARAF, AGED 42 YEARS, S/O.KUNHALAN, EZHUPATHINGADAN VEEDU, CHEMRAKKATTOOR, AREACODE, MALAPPURAM DISTRICT, PIN - 673639.

2 THE STATION HOUSE OFFICER, AREACODE POLICE STATION, MALAPPURAM DISTRICT, PIN - 673639.

3 THE REGIONAL PASSPORT OFFICER, REGIONAL PASSPORT OFFICE, KOZHIKKODE, KOZHIKKODE DISTRICT, PIN - 673001.

BY ADVS.

ANOOP.V. NAIR T.R.RENJITH, PUBLIC PROSECUTOR S.MANU, ASGI DEVI P.(K/643/2013) A.K.ANANDA KRISHNAN(K/001900/2019) ROHAN MAMMEN ROY(K/2281/2021)

THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR HEARING ON 27.09.2022, ALONG WITH RPFC.245/2022, THE COURT ON 07.10.2022 DELIVERED THE FOLLOWING: OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944 RPFC NO. 245 OF 2022 CRIME NO.211/2020 OF AREACODE POLICE STATION, MALAPPURAM AGAINST THE ORDER/JUDGMENT IN M.C.235/2017 OF FAMILY COURT, MALAPPURAM REVISION PETITIONER/RESPONDENT IN MC 235/2017:

MUHAMMED ASHRAF, AGED 40 YEARS, S/O.KUNHALAN, EZHUPATHINGADAN VEEDU, CHEMRAKATTOR, AREACODE P.O, MALAPPPURAM DISTRICT, PIN - 673639.

BY ADVS.

ANOOP.V.NAIR ROHAN MAMMEN ROY DEVI P.

A.K.ANANDA KRISHNAN RESPONDENTS/PETITIONERS IN MC 235/2017:

1 E.M.NASEEMA, AGED 36 YEARS, D/O.VEERANKUTTY MUSLIYAR, EDASSERIMALAYIL VEEDU, RAHATH MANZIL, IRATTAMOOZHI, CHEEKKODE P.O, MALAPPURAM, PIN - 673645.

2 MUHAMMED SINAL, AGED 18 YEARS, EDASSERIMALAYIL VEEDU, RAHATH MANZIL, IRATTAMOOZHI, CHEEKKODE P.O, MALAPPURAM, PIN - 673645.

BY ADVS.

SAMSUDIN PANOLAN MILAN RACHEL MATHEW(K/001735/2020) LIRA A.B.(K/001251/2021)

THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR HEARING ON 27.09.2022, ALONG WITH OP(Crl.).229/2022, THE COURT ON 07.10.2022 DELIVERED THE FOLLOWING: OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

ORDER IN RPFC No.245/2022 & JUDGMENT IN OP(Crl.) No.229/2022 Dated, this the 7th October, 2022

OP(Crl.) No.229/2022 has been filed under

Article 227 of the Constitution of India by the

petitioner, who is the petitioner in M.C.

No.637/2009, M.C.No.83/2014 and M.C.No.235/2017

on the file of Family Court, Malappuram.

Whereas revision petition (RPFC No.245/2022) is

at the instance of the respondent in the above

M.C.s challenging order dated 10.11.2017.

2. I shall refer the parties in this

petitions as 'revision petitioner' and

'original petitioner' hereinafter for

convenience.

3. According to the original petitioner, OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

there is reluctance in the matter of

considering and passing orders in Exts.P3 to

P12 and, therefore she sought the following

reliefs:

i) Issue a direction to the Family Court, Malappuram to take immediate steps to realize the amounts covered under Exhibits P3 to P12 execution petitions filed by the petitioner, from the first respondent;

ii) Issue a direction/order commanding the 2nd respondent to execute the non-bailable warrants issued against the 1st respondent in Exhibits P3 to P12 petitions filed by the petitioner, forth with;

iii) Issue any order or directions, directing the 3rd respondent to cancel/ revoke/impound the Passport of the first respondent, in view of the provisions contained in Section 6(2)(g) and Section 10(3)(h) of the Passports Act, forthwith;

iv) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.

4. In the revision petition, the prayer is

to set aside the order in M.C.No.235/2017 dated OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

10.11.2017 and to declare that the respondents

are not eligible for maintenance from the

petitioner.

5. On 16.09.2022, this Court directed both

parties to file calculation statement as

regards the amount due towards maintenance

within two days. As per the calculation

statement filed by the original petitioner as

on 20.09.2022, Rs.7,88,166/- is outstanding.

Though it is submitted by the learned counsel

for the revision petitioner on 27.09.2022 that

he also filed a calculation statement, in fact

no statement seen filed and the submission

found to be wrong.

6. In fact, the prayers sought for in the

original petition pertaining to execution of

the order in M.C.No.235/2017 is subject to

decision in RPFC No.245/2022. But the decision OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

in this revision has no impact as far as

execution of orders in M.C.Nos.637/2009 and

83/2014 is concerned.

7. In RPFC, the revision petitioner

impugns Annexure-II order in M.C.No.235/2017.

M.C.No.235/2017 is the petition filed by the

original petitioner and her minor child, aged

12 years under Section 127 of Cr.P.C. and under

Section 7(2)(a) of the Family Courts Act.

8. Going by Annexure-II order, it is

crystal clear that when notice was issued to

the respondent in the above petition, he

remained absent and there was no representation

from his side. As per the order, the learned

Family Court Judge after considering the change

in circumstances after expiry of two years as

per Annexure-II order in M.C.No.235/2017 dated

10.11.2017, Rs.4,000/- per month ordered to the OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

1st petitioner, is enhanced to Rs.6,000/- and

Rs.1,500/- ordered to the 2nd minor petitioner

is enhanced to Rs.4,000/- per month.

9. It is to be borne out from Ext.P1 in

the original petition that earlier in the year

2009, the original petitioner filed petition

for maintenance under Section 125 of Cr.P.C.

for herself and minor son, then aged 4 years.

After contest as per common judgment in O.P.

No.562/2009 and M.C.No.637/2009 dated

19.04.2010, the Family Court granted

maintenance at the rate of Rs.3,000/- to the

original petitioner (1st petitioner) and

Rs.750/- to the 2nd petitioner. The said order

is not put under challenge.

10. It is to be noted that thereafter,

M.C.No.83/2014 was filed and the earlier order

in M.C.No.637/2009 was modified thereby OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

Rs.4,000/- and Rs.1,500/- each were ordered as

the monthly maintenance of the original

petitioner and the minor child. The said order

also not put under challenge.

11. In M.C. No.235/2017, the said sum got

enhanced, as I have already pointed out. It is

to be noted that the revision petitioner did

not appear before the Family Court in M.C.

No.235/2017 and thereby, an ex-parte order was

passed. Since the revision petitioner remains

silent, despite pendency of various Execution

Petitions to get the arrears of maintenance

amount, even after passing Annexure-II order,

O.P.(Crl.) No.229/2022 has been filed by the

original petitioner seeking directions to get

the Execution Petitions dispose of at the

earliest.

12. It is to be noticed that O.P.(Crl.) OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

No.229/2022 was presented before this Court on

26.05.2022. It was after filing O.P.(Crl.)

No.229/2022 and on getting notice therefrom, on

09.06.2022 the revision petition has been filed

along with a delay petition to condone delay of

850 days. This Court condoned the delay on

payment of Rs.2,000/-.

13. According to the revision petitioner,

the original petitioner has been living at her

house and, therefore, she requires huge amount

for rent and expenses, cannot be justified. The

revision petitioner is struggling to maintain

himself, since he is jobless and in such a

situation, the claim of the respondent at the

rate of Rs.6,000/- and Rs.4,000/- granted as

per the modified order impugned, cannot be

justified. According to the revision

petitioner, the delay in filing this revision OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

petition is not wilful. In this matter, as I

have already pointed out, in M.C.No.637/2009,

(the first petition filed for maintenance)

Rs.3,000/- and Rs.750/- were allowed and

subsequently the same got enhanced to

Rs.4,000/- and Rs.1,500/- vide order in

M.C.No.83/2014. As per the order impugned in

M.C.No.235/2017, the said amounts were enhanced

to Rs.6,000/- and Rs.4,000/-.

14. It is relevant to note that the

revision petitioner herein, neglected to pay

maintenance ordered in M.C.No.637/2009 and M.C.

No.83/2014. As per the calculation statement,

the amount due under orders in M.C.No.637/2009

and M.C.No.83/2014 would come to Rs.4,12,000/-

(Rs.1,70,000 + Rs.2,42,000) up to 10.11.2017.

Apart from that as per order in M.C.No.235/2017

impugned by the revision petitioner, the same OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

got enhanced to Rs.6,000/- and Rs.4,000/-. The

arrears calculated for the said sum is

Rs.5,75,666/-. Thus, the total shown in the

calculation statement of the original

petitioner is Rs.9,87,666/-. Out of which,

Rs.1,99,500/- is shown as the paid amount,

since Rs.2,00,000/- was paid by way of DD

before this Court. It is to be noted that

Rs.500/- from Rs.2,00,000/- was reduced in the

calculation statement may be as part of

deduction made by the bank as commission. Thus,

as per the calculation statement, Rs.7,88,166/-

is the balance as on 20.09.2022.

15. The crucial question herein is, whether

the enhancement given in M.C.No.235/2017 at the

rate of Rs.6,000/- and Rs.4,000/- is on higher

side. No doubt, it is an order passed by ex-

parte since the revision petitioner failed to OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

appear before the court despite having

acceptance of notice in the said proceedings.

It is relevant to note that the revision

petition has been filed along with delay of 850

days though the same was condoned by this

Court.

16. In this case, as I have already pointed

out Rs.4,12,000/- is due till 10.11.2017 as per

the orders in M.C.No.637/2009 and M.C.

No.83/2014, which had become final. If the

amount as per the order in M.C.No.83/2014 is

calculated at the rate of Rs.5,500/-

(Rs.4,000/- + Rs.1,500/-) for 58 months from

10.11.2017 till 30.09.2022, the same would come

to Rs.3,19,000/- (Rs.5,500 x 58). Thus, it is

crystal clear that even ignoring the order in

M.C.No.235/2017, which is impugned in the

revision petition, the amount in arrears as per OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

the previous orders would come to Rs.7,31,000/-

(Rs.4,12,000 + Rs.3,19,000/-). Out of which,

Rs.2,00,000/- was paid by way of DD (in the

calculation statement), the same is shown as

Rs.1,99,500/-, since she received the said

amount on encashment of the DD). Reducing

Rs.1,99,500/-, the amount would come to

Rs.5,31,500/-.

17. Since the order in M.C. No.235/2017 is

passed ex-parte, I am inclined to grant an

opportunity to the revision petitioner to

contest the matter on merits and, therefore,

the impugned order in RPFC No.245/2022 shall

stand set aside and the matter remitted back to

the Family Court for fresh consideration, in so

far as the enhancement as has been prayed for.

18. However, the revision petitioner is

bound to pay [approximately Rs.5,31,500/- OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

(Rupees Five Lakh Thirty One Thousand Five

Hundred only)], the amount due under orders in

M.C.No.637/2009 and M.C.No.83/2014, after

adjusting Rs.1,99,500/- paid by way of DD as

directed by this Court. Therefore, the revision

petitioner is directed to deposit the entire

arrears, within a period of one month from

today.

19. In the result, RPFC 245/2022 is

allowed. Annexure-II order in M.C.No.235/2017

stands set aside and the matter remitted back

to the Family Court, Malappuram with direction

to consider the same giving an opportunity to

the revision petitioner to file objection, to

adduce evidence, if any, and for hearing.

20. It is specifically ordered that the

revision petitioner shall file objection within

two weeks from the date of appearance and the OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

Family Court shall dispose of the same within

six weeks thereafter, considering the relevant

aspects granting enhancement of maintenance. On

failure to file the objection by the revision

petitioner within two weeks, the Family Court

is at liberty to pass order ex-parte treating

that the respondent has no objection in this

matter.

21. The revision petitioner in RPFC

No.245/2022 is directed to deposit the entire

arrears (approximately Rs.5,31,500/- and the

final figure shall be fixed by the Family Court

after adjusting the payment already made

inclusive Rs.1,99,500/- paid by way of DD)

within a period of one month from today,

failing which the Family Court, Malappuram is

directed to expedite the proceedings to execute

the petitions pending before the Family Court, OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

Malappuram to realise the said amount from the

respondent, at any rate within a period of 45

days from date of receipt of this order. It is

ordered further that the revision petitioner

shall continue to pay Rs.4,000/- and Rs.1,500/-

to the petitioners during the pendency of M.C.

No.235/2017 also. O.P.(Crl.)No.229/2022 stands

allowed to that extend.

Parties are directed to appear before the

Family Court, Malappuram on 18.10.2022 at 11.00

a.m.

Registry is directed to forward a copy of

this order to the Family Court, Malappuram,

forthwith at any rate within a period of seven

days from today.

Sd/-

A.BADHARUDEEN, JUDGE.

ww OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

APPENDIX OF OP(CRL.) 229/2022

PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE ORDER IN M.C.

NO.637/2009 DATED, 19-4-2010 OF THE FAMILY COURT, MALAPPURAM.

EXHIBIT P2 A TRUE COPY OF THE ORDER PASSED IN M.C.

NO.235/2017 OF THE FAMILY COURT, MALAPPURAM DATED, 10-11-2017.

EXHIBIT P3 TRUE COPY OF THE PETITION IN C.M.P.

NO.1242/2010 IN M.C.NO.637/2009 DATED, 18- 9-2010.

EXHIBIT P4 TRUE COPY OF THE PETITION IN C.M.P.

(EXECUTION)NO.1424/2011 IN M.C.NO. 637/2009 OF THE FAMILY COURT, MALAPPURAM DATED, 29-11-2011.

EXHIBIT P5 TRUE COPY OF THE PETITION IN C.M.P.

(EXECUTION)NO.79/2014 IN M.C.NO.637/2009 OF THE FAMILY COURT, MALAPPURAM DATED, 5- 3-2014.

EXHIBIT P6 TRUE COPY OF THE PETITION IN C.M.P.

(EXECUTION)NO.285/2015 IN M.C.NO.83/2014 OF THE FAMILY COURT, MALAPPURAM DATED, 30- 7-2015.

EXHIBIT P7 TRUE COPY OF THE PETITION IN C.M.P.

(EXECUTION)NO.193/2016 IN M.C.NO.83/2014 OF THE FAMILY COURT, MALAPPURAM DATED, 3- 6-2016.

OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

EXHIBIT P8 TRUE COPY OF THE PETITION IN C.M.P.

(EXECUTION)NO.203/2017 IN M.C.NO.83/2014 OF THE FAMILY COURT, MALAPPURAM DATED, 4- 7-2017.

EXHIBIT P9 TRUE COPY OF THE PETITION IN C.M.P.

(EXECUTION)NO.343/2018 IN M.C.NO. 235/2017 OF THE FAMILY COURT, MALAPPURAM DATED, 2- 8-2018.

EXHIBIT P10 TRUE COPY OF THE PETITION IN C.M.P.

(EXECUTION)NO.245/2019 IN M.C.NO. 235/2017 OF THE FAMILY COURT, MALAPPURAM DATED, 16- 8-2019.

EXHIBIT P11 TRUE COPY OF THE PETITION IN C.M.P.

(EXECUTION)NO.211/2020 IN M.C.NO. 235/2017 OF THE FAMILY COURT, MALAPPURAM DATED, 4- 9-2020.

EXHIBIT P12 TRUE COPY OF THE PETITION IN C.M.P.

(EXECUTION)NO.194/2021 IN M.C.NO. 235/2017 OF THE FAMILY COURT, MALAPPURAM DATED, 20- 9-2020.

OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

APPENDIX OF RPFC 245/2022 PETITIONER'S ANNEXURES:

ANNEXURE I TRUE COPY OF THE PETITION FILED AS M.C.

235/2017, BY THE RESPONDENTS BEFORE THE HON'BLE FAMILY COURT, MALAPPURAM.

ANNEXURE II CERTIFIED COPY OF THE ORDER DATED 10.11.2017 IN M.C. NO.235/2017 PASSED BY THE HON'BLE FAMILY COURT, MALAPPURAM.

ANNEXURE III TRUE COPY OF THE WARRANT OF ARREST ISSUED BY THE HON'BLE FAMILY COURT, MALAPPURAM IN C.M.P. (EX) 211/2020 IN M.C.235/2017.