Thoufique C.K vs Sajna T Ummer
2023 Latest Caselaw 4866 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                    THE HONOURABLE MR.JUSTICE V.G.ARUN
         THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
                         OP(CRL.) NO. 346 OF 2023
    AGAINST CRA 232/2022 OF ADDITIONAL DISTRICT AND SESSIONS COURT V
 (IDAMALAYAR COURT) ERNAKULAM, AGAINST THE ORDER IN CMP 1623/2019 IN MC
                                    46/2019
PETITIONER/APPELLANT/RESPONDENTS:

             THOUFIQUE C.K
             AGED 37 YEARS
             AGED 37 YEARS, S/O C.M KASSIM, CHENAKKARA HOUSE,
             V.K.C P.O, THEVAKKAL, ERNAKULAM -
             (RESIDING WITHIN THE LIMITS OF EDATHALA POLICE STATION).,
             PIN - 682021

             BY ADVS.
             B.N.SHIVSANKAR
             TINU T.JOSEPH
             RAKHI RAVEENDRAN


RESPONDENTS/RESPONDENTS/PETITIONER:

     1       SAJNA T UMMER
             AGED 33 YEARS, THOTTIPARAMBIL HOUSE,
             DARUSSALAM ERNAKULAM, PIN - 682012

     2       AISHA ZERAH
             AGED ABOUT 6 YEARS, D/O C.K THOUFIQUE, RESIDING AT
             THOTTIPARAMBIL HOUSE, DARUSSALAM LANE, SRM ROAD, ERNAKULAM
             (REPRESENTED BY THE MOTHER AND NATURAL GUARDIAN,
             SAJNA.T.UMMER)., PIN - 682012
             BY ADVS.
             ASHIK K. MOHAMED ALI
             MUHAMMED RIFA P.M.(K/771/2022)
             RAMSEENA N.(K/001380/2022)

     THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 13.04.2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(CRL.) NO.346 OF 2023
                                               2


                                    JUDGMENT

Dated this the 13th day of April, 2023

Petitioner is the respondent in M.C. No. 46 of 2019 on the

files of the Additional Chief Judicial Magistrate Court,

Ernakulam. The Maintenance Case was filed by the respondents

herein, the wife and child of the petitioner, claiming

maintenance in accordance with the provisions of the

Protection of Women from Domestic Violence Act, 2005.

Therein, the learned Magistrate passed Ext.P7 order, directing

the petitioner to pay maintenance. Aggrieved, the petitioner

preferred appeal under Section 29 of the Act, along with a

petition to condone the delay of thirteen days and a petition for

staying the impugned order.

2. The petitioner's grievance is that the Additional District

and Sessions Court-V (Idamalayar Court), Ernakulam, before

which the appeal is pending, is not sitting and the appeal is

therefore not being taken up. In the meanwhile the Magistrate

Court is proceeding to execute Ext.P7 order.

3. Heard, Adv. B.N. Shivasankar for the petitioner and

Adv. Ashik K. Mohamed Ali for the respondents. O.P.(CRL.) NO.346 OF 2023

4. Although various contentions are raised by the learned

Counsel on either side regarding the legality of Ext.P7 order,

insofar as the petitioner has preferred an appeal and the same

is pending, it will be inappropriate for this court to delve into

those contentions.

5. Having held so, I find that the petitioner ought to be

denied the opportunity to agitate his appeal. Hence, the

Session Court, Ernakulam shall take emergent steps to make

over Appeal No.232 of 2022 from the Additional District and

Sessions Court-V, Ernakulam (Idamalayar Court, Ernakulam) to

any other court or to withdraw the appeal to the Sessions Court

itself for emergent hearing.

6. Learned Counsel for the respondents submitted that

the respondents have also preferred Appeal No.217 of 2022,

seeking enhancement of maintenance allowance. Once the

petitioner's appeal is made over, the appeal filed by the

respondent should also be sent to the same court.

7. The contention urged by the learned Counsel for the

respondents regarding the absence of power for the appellate

court to pass interim orders, in the light of the decisions of the

Hon'ble Supreme Court in Shalu Ojha v. Prashant Ojha O.P.(CRL.) NO.346 OF 2023

[(2015) 2 SCC 99] and Shalu Ojha v. Prashant Ojha [(2017)

9 SCC 457], can be urged before the court in which the appeal

is taken up for consideration.

The original petition is disposed of accordingly.

Sd/-

V.G.ARUN

JUDGE NB/13-4 O.P.(CRL.) NO.346 OF 2023

APPENDIX OF OP(CRL.) 346/2023

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPEAL MEMORANDUM AS CRL.

APPEAL 232/22 DATED 28/7/2022 OF THE SESSIONS COURT, ERNAKULAM EXHIBIT P2 TRUE COPY OF THE DELAY CONDONATION PETITION NO.2066/2022 IN CRL.APPEAL NO.232/2022 DATED 28/7/2022 OF THE SESSIONS COURT, ERNAKULAM EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN CRL. M.P NO 2066/2022 IN CRL. APPEAL NO. 232/2022 DATED 17/9/2022 OF THE SESSIONS COURT, ERNAKULAM.

EXHIBIT P4 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER CRL.M.P. NO. 2067/2022 CRL. APPEAL 232/22 DATED 28/7/2022 OF THE SESSIONS COURT, ERNAKULAM.

EXHIBIT P5 TRUE COPY OF THE CRL. M.P NO. 963/2022 IN M.C.

46/2019 DATED 16/7/2022 OF THE ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER CRL. M.P NO. 963/2022IN M.C. NO. 46/2019 DATED 29/7/2022 OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 15/06/2022 IN C.M.P NO 1623/2019 IN M.C NO. 46/2019 OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.

RESPONDENTS' EXHIBITS: NIL

TRUE COPY P.A. TO JUDGE