Kerala High Court
P.A.Johny vs K.T. Rosily on 19 August, 2025
2025:KER:61864
O.P (Crl.) No.551/2025
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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
OP(CRL.) NO. 551 OF 2025
IN C.M.P.NO.5135/2023 IN MC NO.45 OF 2019 OF JUDICIAL
MAGISTRATE OF FIRST CLASS, WADAKKANCHERRY
PETITIONER/APPLICANT/RESPONDENT:
P.A.JOHNY,
AGED 69 YEARS
S/O ANTONY, PUTHOOR HOUSE,
VELLATANJUR DESOM,
VELLATANJUR VILLAGE,
KUNNAMKULAM TALUK,
THRISSUR DISTRICT,
PIN - 680601
BY ADV SHRI.K.M.MUHAMMED HUSSAIN
RESPONDENT/RESPONDENT/PETITIONER:
K.T. ROSILY,
AGED 61 YEARS
W/O JOHNY PUTHOOR HOUSE,
VELLATANJUR DESOM,
VELLATANJUR VILLAGE,
KUNNAMKULAM TALUK
THRISSUR DISTRICT,
PIN - 680601
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
14.08.2025, THE COURT ON 19.08.2025 DELIVERED THE FOLLOWING:
2025:KER:61864
O.P (Crl.) No.551/2025
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JUDGMENT
Ext.P7 order passed by the Judicial First Class Magistrate Court,
Vadakkancherry, directing the petitioner to pay an amount of
Rs.1,00,000/- out of the maintenance arrears due to the first respondent
in M.C No.45/2019 on the files of the said Court, as a pre-condition to
set aside the ex parte order passed against him on 03.11.2022, is under
challenge in this original petition filed under Article 227 of the
Constitution of India.
2. According to the petitioner, he happened to be set ex parte in
M.C No.45/2019 due to the failure of the Junior Advocate entrusted with
the case to make proper representations. When the respondent
(petitioner in the M.C) took steps for enforcement of the order of the
learned Magistrate to pay maintenance to her, a petition was filed by the
petitioner, for setting aside the ex parte order. A petition for condonation
of delay of 337 days was also filed after the elapse of about two years
from the date of order dated 03.11.2022.
3. Taking note of the huge arrears of Rs.3,12,000/-, which stood
due to be paid as maintenance to the aggrieved person, the learned
Magistrate directed the petitioner by the impugned order to pay
Rs.1,00,000/- out of the arrears of maintenance within a period of one
2025:KER:61864
month as a pre-condition to set aside the ex parte order passed against
the petitioner. It is the aforesaid order, which is under challenge in this
petition.
4. Heard the learned counsel for the petitioner.
5. 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 condone the
delay in filing 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
337 days in filing appropriate applications to set aside the ex parte order
against the petitioner, 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 pay Rs.1,00,000/- out of
the maintenance arrears to the aggrieved person within one month.
6. 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
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aside the ex parte order, cannot be termed as illegal or improper. It is to
be noted that the very objective of the 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 less than one-third of the arrears of
maintenance which stood due to the aggrieved person, 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
Article 227 of the Constitution of India. Needless to say, there is
absolutely no scope for setting aside Annexure-A7 order passed by the
learned Magistrate.
In the result, the petition is hereby dismissed.
G. GIRISH, JUDGE
jsr/DST
2025:KER:61864
APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE M.C. 45/2019 BEFORE THE
JUDICIAL FIRST CLASS MAGISTRATE
WADAKKANCHERY DATED 30-08-2019
EXHIBIT P2 TRUE COPY OF THE ORDER IN C.M.P. NO.
4970/2019 IN M.C. 45/2019 ON THE FILES OF
THE JUDICIAL FIRST CLASS MAGISTRATE
WADAKKANCHERY DATED 31-08-2019
EXHIBIT P3 TRUE COPY OF THE OBJECTION IN M.C. 45/2019
BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE
WADAKKANCHERY DATED 03- 06-2022
EXHIBIT P4 TRUE COPY OF THE CMP NO 5135 OF 2023 IN
M.C. 45/2019 BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE WADAKKANCHERY DATED
06-12- 2022
EXHIBIT P5 TRUE COPY OF THE CMP NO 4761 OF 2024 IN
M.C. 45/2019 BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE WADAKKANCHERY DATED
05-07-2024
EXHIBIT P6 TRUE COPY OF THE OBJECTION IN CMP NO 5135
OF 2023 IN M.C. 45/2019 BEFORE THE
JUDICIAL FIRST CLASS MAGISTRATE
WADAKKANCHERY DATED 06-12-2022
EXHIBIT P7 TRUE COPY OF THE ORDER CMP NO 5135 OF 2023
IN M.C. 45/2019 BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE WADAKKANCHERY DATED 13-
06-2025
EXHIBIT P8 TRUE COPY OF THE ORDER IN CMP NO 4761 OF
2024 IN M.C. 45/2019 BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE WADAKKANCHERY DATED
13-06-2025
EXHIBIT P9 TRUE COPY OF THE DECREE IN O.P.NO 1381 OF
2019 ON THE FILES OF FAMILY COURT THRISSUR
DATED 08-02-2023
EXHIBIT P10 TRUE COPY OF THE ORDER NO 8770/2019/C2
PASSED BY THE MAINTENANCE TRIBUNAL,
THRISSUR DATED 06-01-2021
EXHIBIT P11 TRUE COPY OF THE M.C.NO 60 OF 2024 ON THE
FILES OF FAMILY COURT KUNNAMKULAM DATED
14-03-2024
