Kerala High Court
Kadakkadan Shihab vs Arakkalthodi Safiya on 16 May, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 16TH DAY OF MAY 2023 / 26TH VAISAKHA, 1945
RPFC NO. 8251 OF 2021(FILING NO.)
MC 906/2011 OF FAMILY COURT, MALAPPURAM
REVISION PETITIONER/S:
KADAKKADAN SHIHAB
AGED 43 YEARS
S/O.LATE AVARANKUTTY, C/O.KAREEM ADHIKARATHIL
NAYADIKUNNU, VANDUR POST, MALAPPURAM DISTRICT -
679 328.
BY ADVS.
JAMSHEED HAFIZ
K.K.NESNA
RESPONDENT/S:
1 ARAKKALTHODI SAFIYA
AGED 41 YEARS
D/O.LATE ABOOBAKKER, ULLATTU HOUSE, MADATHIL
PARAMBIL, PEEDIKA POST, MALAPPURAM DISTRICT -
676 315.
2 MISRIYA
AGED 22 YEARS
D/O.KADAKKADAN SHIHAB, ULLATTU HOUSE, MADATHIL
PARAMBIL, PEEDIKA POST, MALAPPURAM DISTRICT -
676 315.
3 MUHAMMAD JURAIDH
AGED 20 YEARS
S/O.KADAKKADAN SHIHAB, ULLATTU HOUSE, MADATHIL
PARAMBIL, PEEDIKA POST, MALAPPURAM DISTRICT -
676 315.
4 MUHAMMAD SUHAIB
AGED 17 YEARS
D/O.KADAKKADAN SHIHAB, ULLATTU HOUSE, MADATHIL
PARAMBIL, PEEDIKA POST,MALAPPURAM DISTRICT -
676 315.
5 ABDUL SABITH
AGED 14 YEARS
D/O.KADAKKADAN SHIHAB, ULLATTU HOUSE, MADATHIL
PARAMBIL, PEEDIKA POST, MALAPPURAM DISTRICT -
676 315 (RESPONDENTS 4 AND 5 MINORS ARE
REPRESENTED BY MOTHER 1ST RESPONDENT).
BY ADV M.A.ZOHRA
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
-2-
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON
09.03.2023, ALONG WITH OP(Crl.).519/2021, THE COURT ON
16.05.2023 DELIVERED THE FOLLOWING:
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
-3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 16TH DAY OF MAY 2023 / 26TH VAISAKHA, 1945
OP(CRL.) NO. 519 OF 2021
AGAINST THE ORDER/JUDGMENTMC 906/2011 OF FAMILY COURT,
TIRUR
PETITIONER/S:
KADAKKADAN SHIHAB
AGED 43 YEARS
S/O LATE. AVARANKUTTY, C/O KAREEM ADHIKARATHIL
NAYADIKUNNU, VANDUR POST, MALAPPURAM DISTRICT-
679328.
BY ADVS.
JAMSHEED HAFIZ
K.K.NESNA
RESPONDENT/S:
1 ARAKKALTHODI SAFIYA
AGED 41 YEARS
D/O LATE.ABOOBAKKER, ULLATTU HOUSE, MADATHIL
PARAMBIL, PEEDIKA POST, MALAPPURAM DISTRICT-
676315.
2 MISRIYA,
AGED 22 YEARS
D/O.KADAKKADAN SHIHAB, ULLATTU HOUSE, MADATHIL
PARAMBU, PEEDIKA POST, MALAPURAM DISTIRCT-
676315.
3 MUHAMMAD JURAIDH,
AGED 20 YEARS
S/O KADAKKADAN SHIHAB, ULLATTU HOUSE, MADATHIL
PARAMBU, PEEDIKA POST, MALAPPURAM DISTRICT-
676315.
4 MUHAMMAD SUHAIB,
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
-4-
AGED 17 YEARS
D/O.KADAKKADAN SHIHAB, ULLATTU HOUSE, MADATHIL
PARAMBIL,PEEDIKA POST, MALAPPURAM DISTRICT-
676315.
5 ABDUL SABITH,
AGED 14 YEARS
D/O KADAKKADAN SHIHAB, ULLATTU HOUSE,
MADATHILPARAMBIL, PEEDIKA POST, MALAPPURAM
DISTRICT-676315. (RESPONDENTS 4 AND 5 MINIRS
ARE REPRESENTED BY MOTHER 1ST RESPONDENT).
BY ADV M.A.ZOHRA
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON
09.03.2023, ALONG WITH RPFC.8251/2021(Filing No.), THE COURT
ON 16.05.2023 DELIVERED THE FOLLOWING:
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
-5-
ORDER
Dated this the 16th day of May, 2023
The revision petition is filed challenging
the order passed in MC No.906 of 2011 filed by
the respondents, who are the wife and children of
the petitioner. The petitioner has also filed an
application for condoning the delay of 2453 days
in filing the revision petition. The prayer in
the original petition is to quash the petition
filed by the respondents, seeking to execute the
order in M.C.No.906 of 2011.
2. The essential facts are as under;
The MC No.906 of 2011 was filed by the
respondents seeking maintenance allowance at the
rate of Rs.6,000/-, Rs.4000/-, Rs.3000/-,
Rs.2000/- and Rs.1000/- respectively. As the
petitioner failed to appear before the Family
Court, despite issuance of notice, he was set ex
parte and an order passed on 23.05.2013 allowing
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
maintenance allowance, as claimed by the
respondents.
3. Adv.Jamsheed Hafiz appearing for the
petitioner submitted that there is no wilful or
deliberate latches on the part of the revision
petitioner and the ex parte order was passed at a
time when the petitioner was laid up after
undergoing a surgery. It is pointed out that,
after the first respondent filed CMP (Ex.) 570 of
2013 for getting the order executed, the dispute
between the parties was amicably settled and they
started residing together. Thereafter, the
petitioner went abroad in connection with his
employment and used to send money to the
respondents regularly. After the petitioner came
back, the first respondent executed a compromise
agreement, categorically agreeing to withdraw CC
No.617 of 2014 filed by her before the Judicial
First Class Magistrate Court, Parappanangadi
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
alleging commission of offence under Section 498
A IPC, as also MC No.906 of 2011 filed before the
Family Court, Malappuram. In tune with the
settlement, the first respondent turned hostile
during her examination in CC No.617 of 2011,
resulting in the petitioner being acquitted of
the offence under Section 498A of IPC.
Surprisingly, the first respondent thereafter
approached the Family Court with a petition for
reviving CMP (Ex.) No.570 of 2013, which had been
closed based on the report that the petitioner
had gone abroad. Reliance is placed on an
affidavit filed by the second respondent before
the Family Court, stating that her marriage was
conducted by the petitioner and that the
petitioner had helped in securing employment for
the other children and no amount is due from him
towards maintenance allowance. In spite of
petitioner filing objection and producing
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
affidavit of the second respondent, CMP(Ex.)
No.570 of 2013 was reopened and non-bailable
warrant issued against him. It is contended that
the delay had occurred since the petitioner was
under a bona fide belief that no further steps
will be taken based on the order passed by the
Family Court in view of the settlement arrived at
between the parties.
4. Adv.M.A.Zohra appearing for the
respondents, submitted that the petitioner was
fully aware of the maintenance case and had
wilfully kept away from the proceedings,
resulting in the court passing the ex parte
order. Thereupon, the first respondent had filed
CMP(Ex.) No.570 of 2013. In the execution
petition, summons, distress warrant and non-
bailable warrant were issued against the
petitioner. Finally, the non-bailable warrant was
executed on 27.02.2015. Immediately thereafter,
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
the petitioner went abroad and the CMP was closed
with liberty to revive if necessary. Later, on
getting information that the petitioner had come
back, the first respondent filed a petition for
re-opening the execution petition. The revision
petition challenging the original order directing
payment of mainteance allowance is filed only
after non-bailable warrant was issued in the
execution petition.
5. Learned Counsel submitted that there is
no bona fides in the submission that the dispute
was settled amicably. The actual fact is that the
first respondent was coaxed and coerced to turn
hostile in CC No.617 of 2014 by threatening that
the petitioner will not conduct the marriage of
the second respondent otherwise. The petitioner
had also promised to take care of the
respondents. The petitioner retracted from the
promise after securing a favourable verdict in
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
the criminal case. He not only failed to maintain
the respondents but also married another lady and
is leading luxurious life at Dubai.
6. It is submitted that the petitioner had
made the second respondent to file an affidavit
before the Family Court stating incorrect facts.
The second respondent is left with no choice but
to toe the petitioner's line since she is married
to the petitioner's nephew, who is employed in
the petitioner's Hypermarket at Dubai.
7. It is pointed out that in O.P.No.1074 of
2011 filed by the first respondent seeking
recovery of her gold ornaments, the Family Court,
Malappuram had passed an ex parte order. At the
petitioner's instance, the prayer for setting
aside the ex parte order after condoning the
delay of 1630 days in filing the application was
allowed by the Family Court, subject to the
petitioner paying 30% of the amount payable as
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
per the ex parte order. The petitioner challenged
that condition before this court in O.P(FC)
No.480 of 2018. That original petition was
dismissed by the Division Bench finding the
reasons offered by the petitioner to be
unacceptable.
8. The inordinate delay of 2453 days in
filing the revision petition can be condoned only
the explanation offered by the petitioner is
found to be genuine and acceptable. The
explanation offered is that the dispute was
compromised after the ex parte order and the
petitioner was under the bona fide belief that
the respondents will not take steps for getting
the order executed. A perusal of the proceedings
of the Family Court reveals that the non-
bailable warrant issued against the petitioner
was executed on 27.02.2015. As far as the
settlement is concerned, the legal position is
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
that a settlement resulting in the wife being
denied maintenance allowance is against public
policy and therefore unsustainable. It is also
pertinent to note that the execution petition
filed immediately after the ex parte order was
never withdrawn but was only closed based on the
report that the petitioner had gone abroad. The
respondents had taken steps for reopening the
execution petition immediately after the
petitioner returned from abroad. The petitioner
waited till issuance of non-bailable warrant in
the execution petition, before challenging the
original order. As such, there was wilful latches
and negligence on the petitioner's part. The
affidavit filed in support of the second
respondent will not also come to the petitioner's
rescue since that affidavit can at best absolve
the petitioner from paying maintenance to the
second respondent. I also take note of the
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
judgment dismissing OP(FC) No.480 of 2018, the
Division Bench not being satisfied with the
explanation offered by the petitioner for the
delay in filing the petition for setting aside
the ex parte order in OP No.1074 of 2011.
For the aforementioned reasons, Crl.M.A.No.1
of 2021 is dismissed. Consequently, the RPFC is
dismissed.
The petition for condoning the delay in
filing revision against the order in MC No.906 of
2011 having been dismissed, this original
petition challenging the proceedings in the
execution petition filed in MC No.906 of 2011 is
also dismissed.
Sd/-
V.G.ARUN
JUDGE
Scl/
Crl.M.A.No.1 of 2021 in R.P.F.C No..../2021 and
O.P.(Crl) No.519 of 2021
APPENDIX OF OP(CRL.) 519/2021
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE JUDGMENT IN M.C
NO.906/2011 PASSED BY THE FAMILY
COURT,MALAPPURAM.
Exhibit P2 A TRUE COPY OF THE COMPROMISE
AGREEMENT EXECUTED BY THE PETITIONER
AND 1ST RESPONDENT DATED 22.12.2017.
Exhibit P3 A TRUE COPY OF THE ORDER IN
CC.617/2014 BEFORE THE JUDICIAL 1ST
CLASS MAGISTRATE COURT, PARAPPANANGADI
DATED 19.01.2019.
Exhibit P4 A TRUE COPY OF THE APPLLICATION FILED
BY THE 1ST RESPONDENT CMP 306/2021 IN
CMP(EX) 570/2013 IN MC NO.906/2011
BEFORE THE FAMILY COURT, TIRUR DATED
28.10.2021
Exhibit P5 A TRUE COPY OF THE OBJECTION OF THE
PETITIONER IN CMP 306/2021 IN
CMP(EX)570/2013 IN MC 906/2021 BEFORE
THE FAMILY COURT,M TIRUR DATED
05.11.2021.
Exhibit P6 A TRUE COPY OF THE JOINT STATEMENT OF
THE RESPONDENTS 2,3 AND 4 IN CMP
306/2021 IN CMP(EX)570/2013 IN MC
906/2011 BEFORE THE FAMILY COURT,
TIRUR DATED 05.11.2021.
Exhibit P7 A TRUE COPY OF THE DIARY EXTRACT OF
THE FAMILY COURT TIRUR IN
CMP(EX)570/2013 IN MC 906/2021.
