Disposed

Moideen Koya.a.P v. Suhara

Kerala HC2 Nov 2020OP(Crl.)/42/2019

Case brief

AI extract

What is this about?

Single judge order on writ to stay Family Court maintenance proceedings. Court modified condition for setting aside ex-parte order to 50% deposit, directed reconsideration if complied with, or affirmation otherwise, and ordered fresh disposal if conditions met.

What did the court decide?

Petitioner granted two weeks to deposit 50% of arrears; if complied, delay condoned and case remanded for disposal within five months.

Moideen Koya.a.P Vs Suhara — Maintenance and Alimony | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶4

MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942

¶5

OP(Crl.).No.42 OF 2019

¶6

AGAINST THE ORDER IN MC 88/2016 OF FAMILY COURT, KOZHIKODE

¶7

PETITIONER/RESPONDENT:

¶8

MOIDEEN KOYA.A.P AGED 54 YEARS HOUSE NO.IX/503A, KURUNGOTTUMMAL HOUSE, PANTHEERANKAVU P.O., PERUMANNA AMSOM, VELLAYIKKODE DESOM, KOZHIKODE DISTRICT 673 019.

¶9

BY ADV. SMT.K.S.HASEENA

¶10

RESPONDENTS/PETITIONERS:

¶11

1 SUHARA, AGED 40 YEARS, W/O. MOIDEEN KOYA, HOUSE NO.IX/503 A, KURUNGOTTUMMAL HOUSE, PANTHIRANKAVU P.O., PERUMANNA AMSOM, VELLAYIKKODE DESOM, KOZHIKODE DISTRICT 673 019.

¶12

2 HINA FATHIMA (MINOR), REPRESENTED BY HER MOTHER AND GUARDIAN SUHARA, AGED 40 YEARS, W/O. MOIDEEN KOYA, HOUSE NO.IX/503 A, KURUNGOTTUMMAL HOUSE, PANTHIRANKAVU P.O., PERUMANNA AMSOM, VELLAYIKKODE DESOM, KOZHIKODE DISTRICT 673 019.

¶13

R1-R2 BY ADV. SMT.T.B.REMANI

¶14

THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 02.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

O.P (Crl.) No.42 of 2019

¶16

¶17

ALEXANDER THOMAS, J.

¶18

===========================

¶19

O.P (Crl.) No.42 of 2019

¶20

===========================

¶21

Dated this the 02^nd day of November, 2020

¶22

JUDGMENT

¶23

The prayer in the aforecaptioned O.P(Crl.) filed under Article 227

¶24

of the Constitution of India is as follows :

¶25

“............... to stay all further proceedings in MC No.88/2016 on the file of Family Court, Kozhikode pending disposal of the original petition (criminal).”

¶26

Heard Smt.K.S.Haseena, learned counsel appearing for the petitioner and Smt.T.B.Remani, learned counsel appearing for the respondents.

¶27

The petitioner herein had earlier married the 1^st respondent and the 2^nd respondent herein is the minor child born in the said wedlock. During the subsistence of the marital relationship, the respondents had filed M.C.No.88/2016 before the Family Court, Kozhikode under Sec.125 of the Cr.P.C seeking maintenance at the rate of Rs.10,000/- per month for the wife and Rs.5,000/- per month to the minor daughter. The petitioner herein, who is the respondent in the said M.C was set ex-parte. The learned counsel for the petitioner

¶28

O.P (Crl.) No.42 of 2019

¶29

¶30

submits that the marital relationship between the parties have been dissolved by the pronouncement of talaaq on 05.12.2016. Later, the Family Court has passed the impugned ex-parte final order dated 21.02.2018 in M.C.No.88/2016 ordering that the respondent herein should pay maintenance at the rate of Rs.5,000/- to the 1^st respondent herein and at the rate of Rs.3,000/- to the 2^nd respondent herein from the date of the petition (23.03.2016). Aggrieved by the impugned Ext.P-1 ex-parte final order, the petitioner herein had filed the application to set aside the said ex-parte order and also a separate application for condoning the delay of 116 days in filing the said application to set aside the said ex-parte final order. The Family Court, Kozhikode has passed the impugned Ext.P-2 order dated 16.10.2018 in those applications ordering that the said applications will stand allowed on condition that the petitioner should deposit 80% of the maintenance arrears due within 20 days. The petitioner has challenged the said conditions in Ext.P-2 order to the extent he has been ordered to pay to deposit 80% of the maintenance allowance as a condition for setting aside of the impugned Ext.P-1 ex-parte order and for condoning the delay of 116 days in filing the said application to set aside the said exparte order.

¶31

O.P (Crl.) No.42 of 2019

¶32

¶33

This Court had passed an interim order on 13.01.2020 in this O.P (Crl.) noting that the petitioner herein has deposited an amount of Rs.1 lakh towards the maintenance arrears and this Court held therein that, as the order passed by the Family Court directing maintenance is an ex-parte one, the Family Court has already allowed the application for condoning the delay on an onerous condition and that the Family Court should have allowed the application on condition that the petitioner shall deposit 50% of the maintenance arrears. Accordingly, this Court held that the impugned Ext.P-2 order will stand modified to the effect that CMP No.396/2018 in M.C.No.88/2016 will stand allowed on condition that the petitioner shall deposit 50% of the maintenance arrears as on today (13.01.2020) within one month therefrom i.e. on or before 12.02.2020.

¶34

Now it is submitted by Smt.K.S.Haseena, learned counsel appearing for the petitioner on the basis of instructions that the petitioner has already complied with the said conditions in the interim order dated 13.01.2020 and has deposited 50% of the maintenance arrears as on 13.01.2020 within the time limit and those amounts have been duly deposited by the petitioner before the Family Court, Kozhikode. Whereas, Smt.T.B.Remani, learned counsel appearing for

¶35

O.P (Crl.) No.42 of 2019

¶36

¶37

the respondents would submit on the basis of instructions that it is reliably learnt that till date, the petitioner has not fully complied with the said interim order dated 13.01.2020, whereas the 50% of the total maintenance arrears as on 13.01.2020 would come to Rs.1,84,000/-, etc. This Court need not resolve this controversy, as the factual aspects in this regard are to be verified by the Family Court concerned.

¶38

Accordingly, it is ordered that in case, the petitioner has not so far deposited 50% of the total maintenance arrears as on 13.01.2020 upto now, then he is given further time by two weeks to deposit 50% of the total maintenance arrears from 13.01.2020 before the Family Court, Kozhikode and on such deposit, the said amount shall be released to the respondents herein through the 1^st respondent. In case, the petitioner does not deposit 50% of the total maintenance arrears as on 13.01.2020 within an outer time limit of two weeks from the date of receipt of a certified copy of this judgment by the Family Court concerned, then the impugned Ext.P-2 order will stand affirmed and the consequences therefrom will flow. Further, it is ordered that in case, the petitioner has already deposited 50% of the total maintenance arrears as of now or would deposit the said 50% of the total maintenance arrears within the extended time limit of two weeks, as aforestated, then the delay in filing

¶39

O.P (Crl.) No.42 of 2019

¶40

¶41

the application to set aside the Ext.P-1 order as well as Ext.P-2 ex-parte final order will stand set aside and in which case, the Family Court, Kozhikode will ensure that M.C.No.88/2016 is disposed of afresh, without much delay, preferably within an outer time limit of five months from the date of receipt of a certified copy of this judgment, after affording reasonable opportunity of being heard to both sides.

¶42

The Registry will forward a certified copy of this judgment to the Family Court, Kozhikode, who is dealing with M.C.No.88/2016, for necessary information and further action and the extended time limit of two weeks, shall be reckoned with reference to the date of receipt of the copy of this judgment by the Family Court, Kozhikode.

¶43

With these observations and directions, the above O.P(Crl.) will stand disposed of.

¶44

Sd/-

¶45

ALEXANDER THOMAS JUDGE

¶46

vgd

¶47

O.P (Crl.) No.42 of 2019

¶48

¶49

APPENDIX

¶50

PETITIONER'S/S EXHIBITS:

¶51

EXHIBIT P1 TRUE COPY OF THE ORDER DATED 21.2.2018 OF FAMILY COURT, KOZHIKODE IN MC 88/2016. EXHIBIT P2 THE CERTIFIED COPY OF THE ORDER DATED 16.10.2018 OF THE HONBLE FAMILY COURT, KOZHIKODE IN CMP NO. 396/2018.

Moideen Koya.a.P v. Suhara

Case brief

What is this about?

What did the court decide?

Moideen Koya.a.P v. Suhara

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Ajeesh Vs State of Kerala

Rajesh Vs Vinaya

Yaser Latheef Vs Siyana

Nizarudeen Vs State of Kerala

Dr. Abdul Khader Thidil Vs State of Kerala

Cheruba Susan George Vs Jewel Jacob