Kerala High Court
Shanavas Karuvoth Thazhakuni vs Badarunnisa on 19 August, 2025
2025:KER:61865
Crl.M.C.No.7238/2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
TUESDAY, THE 19TH DAY OF AUGUST 2025 / 28TH SRAVANA, 1947
CRL.MC NO. 7238 OF 2025
AGAINST THE ORDER DATED 04.03.2025 IN CMP NO.234/2025 IN
MC NO.31 OF 2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,
KASARAGOD
PETITIONER/1ST PETITIONER/ 1ST RESPONDENT:
SHANAVAS KARUVOTH THAZHAKUNI,
AGED 30 YEARS,
S/O ABDUL KHADER MUSLIYAR,
EDADI MEETHAL (H)
THIRUVALLUR,
THIRUVALLUR POST,
KOZHIKODE DISTRICT,
PIN - 673543
BY ADVS.SRI.T.P.SANTHOSH KUMAR
SRI.C.H.ABDUL RASAC
RESPONDENTS/ RESPONDENTS /STATE/ PETITIONERS 2 TO 5:
1 BADARUNNISA
D/O ABDUL KHADER HAJI,
W/O SHANVAS KARUVOTH THAZHAKUNI,
KADIRIYA MANZIL,
ITTITHAL,
KAYYAR VILLAGE AND POST,
KASARAGOD DISTRICT.,
PIN - 671322
2 MUHAMMED AKTHOON
S/O SHANAVAS KARUVOTH THAZHAKUNI,
KADIRIYA MANZIL,
ITTITHAL, KAYYAR VILLAGE AND POST,
KASARAGOD DISTRICT.
REPRESENTED BY HIS MOTHER
1. BADARUNNISA, AGED 27 YEARS,
D/O ABDUL KHADER HAJI,
2025:KER:61865
Crl.M.C.No.7238/2025
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W/O SHANVAS KARUVOTH THAZHAKUNI,
KADIRIYA MANZIL, ITTITHAL,
KAYYAR VILLAGE AND POST,
KASARAGOD DISTRICT.,
PIN - 671322
3 STATE OF KERALA
THOROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
4 ABDUL KADER @ ABDUL KHADER MUSLIYAR
S/O MOITHU.
EDADI MEETHAL (H)
THIRUVALLUR,
THIRUVALLUR POST,
KOZHIKODE DISTRICT.,
PIN - 673541
5 MARIYAM
W/O ABDUL KHADER MUSLIYAR.
EDADI MEETHAL (H)
THIRUVALLUR,
THIRUVALLUR POST,
KOZHIKODE DISTRICT.,
PIN - 673541
6 JAMAL @ JAMAL MUSLIYAR
/O FATHIMA, PANJIYA MINAVARA,
NEAR ABDUL RAHMAN HAJI MASJID KUBANUR,
MANGALPADY POST, UPPALA,
KASARAGOD DISTRICT,
PIN - 671324
7 RASHEEDA
W/O JAMAL @ JAMAL MUSLIYAR,
PANJIYA MINAVARA,
NEAR ABDUL RAHMAN HAJI MASJID KUBANUR,
MANGALPADY POST, UPPALA,
KASARAGOD DISTRICT.,
PIN - 671324
SRI SANAL P. RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
14.08.2025, THE COURT ON 19.08.2025 PASSED THE FOLLOWING:
2025:KER:61865
Crl.M.C.No.7238/2025
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ORDER
Annexure-5 order passed by the Judicial First Class Magistrate
Court-II, Kasaragod, directing the petitioner to deposit an amount of
Rs.1,00,000/- out of the maintenance arrears due to the respondents 1 &
2 in M.C No.31/2018 on the files of the said Court, as a pre-condition to
set aside the ex parte order passed against him on 22.01.2020, is under
challenge in this petition filed under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023.
2. According to the petitioner, he happened to be set ex parte in
M.C.No.31/2018 since his counsel reported no instructions. Accordingly,
the learned Magistrate passed Annexure-1 judgment granting the reliefs
of protection, maintenance and monetary claims. Though the petitioner
took up the matter in appeal by filing Crl.A.No.92/2022, it was dismissed
as not pressed on 20.01.2024. It is thereafter that the petitioner moved
the Trial Court for setting aside the ex parte order against him. By the
impugned order dated 04.03.2025, the learned Magistrate accepted the
prayer for setting aside the ex parte order passed against the petitioner
on 22.01.2020 subject to deposit of Rs.1,00,000/- out of the
maintenance amount due to the aggrieved persons. It is the aforesaid
order which is under challenge in this petition.
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3. Heard the learned counsel for the petitioner.
4. It is apparent from the facts of the case that there had been
severe laxity on the part of the petitioner in taking appropriate steps
against the ex parte order passed by the learned Magistrate granting
reliefs to the aggrieved person. It appears that the petitioner approached
the learned Magistrate with the petition to set aside the ex parte order
only when he realised that proceedings were being initiated by the
aggrieved person to realise the arrears of maintenance from him in
execution of the order passed by the learned Magistrate.
Notwithstanding the huge delay of about five years, the learned
Magistrate, by the impugned order, accepted the prayer of the petitioner
to set aside the ex parte order subject to the condition that the petitioner
shall deposit Rs.1,00,000/- out of the maintenance arrears to the
aggrieved person within one month. It is pertinent to note that the
petitioner has no case that he had paid even a single paise as
maintenance to the aggrieved persons (his wife and child) during the
above period of five years. Thus, the impugned order directing the
payment of an amount of Rs.1,00,000/- out of the maintenance arrears
as a pre-condition to set aside the ex parte order, cannot be termed as
illegal or improper. It is to be noted that the very objective of the
2025:KER:61865
legislation which was brought into force by the enactment of the
Protection of Women from Domestic Violence Act would be defeated, if
the persons bound to provide maintenance and protection to the
aggrieved persons, succeed in procrastinating the proceedings one way
or other. As far as the present case is concerned, it is pertinent to note
that the learned Magistrate had insisted for the payment of only a very
small portion of the arrears of maintenance which stood due to the
aggrieved persons, as a pre-condition to set aside the ex parte order
against the petitioner. The direction in the above regard cannot be
termed as illegal or perverse warranting the interference of this Court in
exercise of its powers under Section 528 BNSS. Needless to say, there is
absolutely no scope for setting aside Annexure-5 order passed by the
learned Magistrate.
In the result, the petition is hereby dismissed.
(sd/-)
G. GIRISH, JUDGE
DST
2025:KER:61865
APPENDIX
PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF THE JUDGMENT DATED 22.01.2020
IN MC.NO.31/18 OF THE HON'BLE JFCM-II,
KASARGODE
ANNEXURE 2 TRUE COPY THE ORDER DATED 08.03.2023 IN
C.M.P.NO.5159/2022 IN CRL.A.NO.92/2022 OF
THE HON'BLE SESSIONS COURT, KASARGODE
ANNEXURE 3 TRUE COPY OF THE ORDER DATED 20.01.2024 IN
CRL.A.NO.92/2022 OF THE HON'BLE SESSIONS
COURT, KASARGODE
ANNEXURE 4 TRUE COPY OF THE C.M.P.NO.234/2025 IN
MC.NO.31/2018 ON THE FILES OF THE JFCNM-II,
KASARGODE
ANNEXURE 5 TRUE COPY OF THE ORDER DATED 04.03.2025 OF
THE FILES OF THE JFCM-II, KASARGODE
