Kerala High Court
Abdul Nazar vs Saleena on 17 October, 2024
Author: P.V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
2024:KER:76955
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
CRL.MC NO. 1766 OF 2018
AGAINST THE ORDER/JUDGMENT DATED 25.02.2017 IN CRA
NO.158 OF 2014 OF III ADDITIONAL DISTRICT COURT, PALAKKAD /
II ADDITIONAL MACT, PALAKKAD ARISING OUT OF THE ORDER DATED
10.01.2013 IN MC NO.1 OF 2012 OF JUDICIAL MAGISTRATE OF FIRST
CLASS , MANNARKAD
PETITIONER/APPELLANT/1ST RESPONDENT:
ABDUL NAZAR
AGED 34, S/O.MUHAMMEDKUTTY, MUTTIYARAKKAL
HOUSE,MATTATHUR MUNAMBATH, OTHUKKUNGAL
P.O.,KOTTAKKAL, MALAPPURAM.
BY ADVS.
SRI.K.M.FIROZ
SRI.E.C.AHAMED FAZIL
SRI.P.C.MUHAMMED NOUSHIQ
SMT.M.SHAJNA
SMT.UMMUL FIDA
RESPONDENTS/1ST RESPONDENT AND STATE/PETITIONER:
1 SALEENA
AGED 29, S/O.YOUSAF, KALATHUMPADIYIL
HOUSE,KANJIRAPPUZHA P.O, MANNARKKAD, PALAKKAD,
PIN -678 591.
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2
2 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM. 682 031.
BY ADV.
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 17.10.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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CRL.MC NO.1766 OF 2018
3
P.V. KUNHIKRISHNAN, J.
-----------------------------------
Crl.M.C.No.1766 of 2018
-----------------------------------
Dated this the 17th day of October, 2024
ORDER
This Crl.M.c is filed with following the
prayer:
(i) " to call for the records
leading to Annexure A2 judgment
dated 25.12.2017 in Crl. Appeal. No
158 of 2014 passed by the III
Additional District & Sessions
Court, Palakkad Division arising out
of the order in M.C. No 1 of 2012,
passed by the Hon'ble Judicial First
Class Magistrate Court, Mannarkkad,
and set aside the same to the extent
it directs the petitioner herein to
pay interim monthly maintenance at
the rate of Rs. 2500/- to the 1st
respondent herein till the final
disposal of M.C. No 1 of 2012 and
allow this Criminal MC."
2. The petitioner filed Crl.A.No.158/2014
before the III Additional District and Sessions
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CRL.MC NO.1766 OF 2018
Court, Palakkad, against the order dated 10.01.2013
in MC No.1/2012 passed by the Judicial First Class
Magistrate Court, Mannarkad. The Sessions Judge set
aside the order passed by the learned Magistrate and
remanded the case to the lower court. The relevant
portion of the order is extracted hereunder:
" 11. Point No.2:- In the result, Appeal
allowed; the impugned order against
Appellant/R1 in MC 1/2012 dated
10-01-2013 stands set aside and the
matter is remanded to JFMC, Mannarkkad.
The learned Magistrate shall dispose of
MC 1/2012 against appellant/R1 in MC in
accordance with law as expeditiously as
possible after affording an opportunity
to the Appellant/R1 in MC to contest the
matter on merits,
12. Appellant/R1 in MC shall pay the
interim monthly maintenance @ 2500/- to
petitioner till the final disposal of
MC."
3. The petitioner is aggrieved by the
interim maintenance granted by the Appellate Court,
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CRL.MC NO.1766 OF 2018
pending disposal of MC. Therefore, this Crl.M.C is
filed.
4. When this Crl.M.C came up for
consideration, on 23.03.2018, this Court passed the
following order:
" Heard. Issue notice to the first
respondent and the learned Public
Prosecutor takes notice for the second
respondent.
Post immediately after service is
complete.
Crl.M.A.2616 of 2018
The contention of the petitioner
herein is that the court below while
correctly remanding the matter for
adducing fresh evidence went wrong in
directing the petitioner herein to pay
maintenance at the rate of Rs. 2,500/-.
The learned counsel inviting my
attention to Annexure-A3 deposition.
Wherein, the first respondent asserted
that she has been married for a third
time and a child was born in the
matrimonial relationship. In that
matrimonial relationship, according to
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the counsel, though she asserted that
she has not pronounced 'fask' and the
husband had pronounced the 'talaq' no
evidence was produced to substantiate
pronouncement of 'talaq'. The vary fact
that she has undergone the third
marriage itself disentitles her to
claim marriage, it was contended.
This is a matter to be heard.
Hence, there will be an interim stay of
the condition directing the petitioner
herein to pay monthly maintenance. The
parties shall appear before the court
below as directed and participate with
the proceedings.
Post immediately after service
is complete."
5. Now, based on the remand order, the
trial court is proceeding with the case. The service
to the 1st respondent is not complete even now. I am
of the opinion that this CRl.M.C need not be
retained here. The interim order can be retained.
But I make it clear that the trial court will
consider the case untrammeled by any observation in
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the interim order.
Therefore, this CRl.M.C is disposed of with
the following directions:
1. The order dated 20.03.2018 is retained
till final orders are passed in MC NO.1/2012 by the
Judicial First Class Magistrate Court, Mannarkad.
2. The learned Magistrate will dispose MC
NO.1/2012 untrammeled by the observations in the
interim order passed by this court on 20.03.2018.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SSG
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PETITIONER'S ANNEXURES
ANNEXURE A1 TRUE COPY OF THE ORDER DATED 25.2.2017 IN
CRL.A. NO.158 OF 2014 PASSED BY THE III
ADDITIONAL DISTRICT & SESSIONS COURT,
PALAKKAD DIVISION.
ANNEXURE A2 TRUE COPY OF THE ORDER DATED 10.1.2013 IN
M.C. NO.1 OF 2012 PASSED BY THE HON'BLE
JUDICIAL FIRST CLASS MAGISTRATE COURT,
MANNARKKAD
ANNEXURE A3 TRUE COPY OF THE DEPOSITION OF THE 1ST
RESPONDENT HEREIN IN OP NO.128 OF 2013 ON
THE FILES OF FAMILY COURT, OTTAPPALAM.
