Allowed

Naseema E.M. v. Muhammed Asharaf

Kerala HC7 Oct 2022OP(Crl.)/229/2022

Case brief

AI extract

What is this about?

In a revision petition under Article 227, the Kerala High Court set aside an ex-parte order enhancing maintenance, remitting the matter to the Family Court for fresh consideration with an opportunity to contest. The respondent was directed to deposit maintenance arrears.

What did the court decide?

Set aside the impugned ex-parte order enhancing maintenance; remitted to Family Court for fresh hearing with opportunity to both parties; directed respondent to deposit arrears.

Naseema E.M. Vs Muhammed Asharaf — Maintenance and Alimony | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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FRIDAY, THE 7^TH DAY OF OCTOBER 2022/15TH ASWINA, 1944

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OP(CRL.) NO.229 OF 2022 AGAINST THE EXECUTION PROCEEDINGS IN M.C.NO.637/2009, M.C.No.83/2014 AND M.C.No.235/2017 OF FAMILY COURT, MALAPPURAM

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PETITIONER/1st PETITIONER:

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NASEEMA E.M., AGED 38 YEARS, D/O.VEERANKUTTY MUSLIYAR, EDASSERIMALAYIL VEEDU, 'RAHATH MANZIL', IRATTAMOOZHI, CHEEKKODE, MALAPPURAM DISTRICT, PIN – 673 640.

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BY ADVS.

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SAMSUDIN PANOLAN MILAN RACHEL MATHEW(K/001735/2020) LIRA A.B.(K/001251/2021)

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RESPONDENTS/RESPONDENT, POLICE & PASSPORT ISSUING

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AUTHORITY:

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1 MUHAMMED ASHARAF, AGED 42 YEARS, S/O.KUNHALAN, EZHUPATHINGADAN VEEDU, CHEMRAKKATTOOR, AREACODE, MALAPPURAM DISTRICT, PIN – 673639.

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2 THE STATION HOUSE OFFICER, AREACODE POLICE STATION, MALAPPURAM DISTRICT, PIN – 673639.

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3 THE REGIONAL PASSPORT OFFICER, REGIONAL PASSPORT OFFICE, KOZHIKKODE, KOZHIKKODE DISTRICT, PIN – 673001.

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BY ADVS. ANOOP.V. NAIR T.R.RENJITH, PUBLIC PROSECUTOR S.MANU, ASGI DEVI P.(K/643/2013) A.K.ANANDA KRISHNAN(K/001900/2019) ROHAN MAMMEN ROY(K/2281/2021)

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THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR HEARING ON 27.09.2022, ALONG WITH RPFC.245/2022, THE COURT ON 07.10.2022 DELIVERED THE FOLLOWING:

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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FRIDAY, THE 7^TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944

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RPFC NO. 245 OF 2022

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CRIME NO.211/2020 OF AREACODE POLICE STATION, MALAPPURAM AGAINST THE ORDER/JUDGMENT IN M.C.235/2017 OF FAMILY COURT, MALAPPURAM

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REVISION PETITIONER/RESPONDENT IN MC 235/2017:

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MUHAMMED ASHRAF, AGED 40 YEARS, S/O.KUNHALAN, EZHUPATHINGADAN VEEDU, CHEMRAKATTOR, AREACODE P.O, MALAPPPURAM DISTRICT, PIN – 673639.

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BY ADVS. ANOOP.V.NAIR ROHAN MAMMEN ROY DEVI P. A.K.ANANDA KRISHNAN

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RESPONDENTS/PETITIONERS IN MC 235/2017:

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1 E.M.NASEEMA, AGED 36 YEARS, D/O.VEERANKUTTY MUSLIYAR, EDASSERIMALAYIL VEEDU, RAHATH MANZIL, IRATTAMOOZHI, CHEEKKODE P.O, MALAPPURAM, PIN – 673645.

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2 MUHAMMED SINAL, AGED 18 YEARS, EDASSERIMALAYIL VEEDU, RAHATH MANZIL, IRATTAMOOZHI, CHEEKKODE P.O, MALAPPURAM, PIN – 673645.

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BY ADVS. SAMSUDIN PANOLAN MILAN RACHEL MATHEW(K/001735/2020) LIRA A.B.(K/001251/2021)

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THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR HEARING ON 27.09.2022, ALONG WITH OP(Crl.).229/2022, THE COURT ON 07.10.2022 DELIVERED THE FOLLOWING:

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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ORDER IN RPFC No.245/2022

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JUDGMENT IN OP(Crl.) No.229/2022 Dated, this the 7^th October, 2022

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OP(Crl.) No.229/2022 has been filed under

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Article 227 of the Constitution of India by the petitioner, who is the petitioner in M.C. No.637/2009, M.C.No.83/2014 and M.C.No.235/2017 on the file of Family Court, Malappuram. Whereas revision petition (RPFC No.245/2022) is at the instance of the respondent in the above M.C.s challenging order dated 10.11.2017.

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convenience.

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According to the original petitioner,

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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there is reluctance in the matter of considering and passing orders in Exts.P3 to P12 and, therefore she sought the following reliefs:

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i) Issue a direction to the Family Court, Malappuram to take immediate steps to realize the amounts covered under Exhibits P3 to P12 execution petitions filed by the petitioner, from the first respondent;

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ii) Issue a direction/order commanding the 2^nd respondent to execute the non-bailable warrants issued against the 1^st respondent in Exhibits P3 to P12 petitions filed by the petitioner, forth with;

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iii) Issue any order or directions, directing the 3^rd respondent to cancel/ revoke/impound the Passport of the first respondent, in view of the provisions contained in Section 6(2)(g) and Section 10(3)(h) of the Passports Act, forthwith; iv) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.

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In the revision petition, the prayer is

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to set aside the order in M.C.No.235/2017 dated

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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10.11.2017 and to declare that the respondents

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are not eligible for maintenance from the petitioner.

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On 16.09.2022, this Court directed both

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parties to file calculation statement as regards the amount due towards maintenance within two days. As per the calculation statement filed by the original petitioner as on 20.09.2022, Rs.7,88,166/- is outstanding. Though it is submitted by the learned counsel for the revision petitioner on 27.09.2022 that

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he also filed a calculation statement, in fact no statement seen filed and the submission found to be wrong.

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original petition pertaining to execution of the order in M.C.No.235/2017 is subject to decision in RPFC No.245/2022. But the decision

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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in this revision has no impact as far as execution of orders in M.C.Nos.637/2009 and 83/2014 is concerned.

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impugns Annexure-II order in M.C.No.235/2017. M.C.No.235/2017 is the petition filed by the original petitioner and her minor child, aged 12 years under Section 127 of Cr.P.C. and under Section 7(2)(a) of the Family Courts Act.

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Going by Annexure-II order, it is

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crystal clear that when notice was issued to the respondent in the above petition, he

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remained absent and there was no representation from his side. As per the order, the learned Family Court Judge after considering the change

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in circumstances after expiry of two years as

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per Annexure-II order in M.C.No.235/2017 dated 10.11.2017, Rs.4,000/- per month ordered to the

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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1^st petitioner, is enhanced to Rs.6,000/- and

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Rs.1,500/- ordered to the 2^nd minor petitioner is enhanced to Rs.4,000/- per month.

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It is to be borne out from Ext.P1 in

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the original petition that earlier in the year 2009, the original petitioner filed petition for maintenance under Section 125 of Cr.P.C.

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for herself and minor son, then aged 4 years.

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After contest as per common judgment in O.P.

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No.562/2009 and M.C.No.637/2009 dated

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19.04.2010, the Family Court granted

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maintenance at the rate of Rs.3,000/- to the

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original petitioner (1^st petitioner) and

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Rs.750/- to the 2^nd petitioner. The said order is not put under challenge.

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It is to be noted that thereafter, M.C.No.83/2014 was filed and the earlier order

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in M.C.No.637/2009 was modified thereby

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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Rs.4,000/- and Rs.1,500/- each were ordered as the monthly maintenance of the original petitioner and the minor child. The said order also not put under challenge.

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In M.C. No.235/2017, the said sum got enhanced, as I have already pointed out. It is to be noted that the revision petitioner did not appear before the Family Court in M.C. No.235/2017 and thereby, an ex-parte order was passed. Since the revision petitioner remains silent, despite pendency of various Execution Petitions to get the arrears of maintenance amount, even after passing Annexure-II order, O.P.(Crl.) No.229/2022 has been filed by the original petitioner seeking directions to get the Execution Petitions dispose of at the earliest.

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It is to be noticed that O.P.(Crl.)

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022 9

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No.229/2022 was presented before this Court on 26.05.2022. It was after filing O.P.(Crl.) No.229/2022 and on getting notice therefrom, on 09.06.2022 the revision petition has been filed

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along with a delay petition to condone delay of 850 days. This Court condoned the delay on payment of Rs.2,000/-.

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According to the revision petitioner,

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the original petitioner has been living at her house and, therefore, she requires huge amount for rent and expenses, cannot be justified. The revision petitioner is struggling to maintain himself, since he is jobless and in such a situation, the claim of the respondent at the rate of Rs.6,000/- and Rs.4,000/- granted as per the modified order impugned, cannot be justified. According to the revision

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petitioner, the delay in filing this revision

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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petition is not wilful. In this matter, as I

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have already pointed out, in M.C.No.637/2009, (the first petition filed for maintenance) Rs.3,000/- and Rs.750/- were allowed and

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subsequently the same got enhanced to Rs.4,000/- and Rs.1,500/- vide order in M.C.No.83/2014. As per the order impugned in M.C.No.235/2017, the said amounts were enhanced to Rs.6,000/- and Rs.4,000/-.

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It is relevant to note that the

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revision petitioner herein, neglected to pay maintenance ordered in M.C.No.637/2009 and M.C. No.83/2014. As per the calculation statement, the amount due under orders in M.C.No.637/2009 and M.C.No.83/2014 would come to Rs.4,12,000/(Rs.1,70,000 + Rs.2,42,000) up to 10.11.2017. Apart from that as per order in M.C.No.235/2017 impugned by the revision petitioner, the same

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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got enhanced to Rs.6,000/- and Rs.4,000/-. The

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arrears calculated for the said sum is Rs.5,75,666/-. Thus, the total shown in the calculation statement of the original petitioner is Rs.9,87,666/-. Out of which, Rs.1,99,500/- is shown as the paid amount, since Rs.2,00,000/- was paid by way of DD before this Court. It is to be noted that Rs.500/- from Rs.2,00,000/- was reduced in the calculation statement may be as part of deduction made by the bank as commission. Thus, as per the calculation statement, Rs.7,88,166/is the balance as on 20.09.2022.

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The crucial question herein is, whether the enhancement given in M.C.No.235/2017 at the rate of Rs.6,000/- and Rs.4,000/- is on higher side. No doubt, it is an order passed by exparte since the revision petitioner failed to

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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appear before the court despite having acceptance of notice in the said proceedings. It is relevant to note that the revision petition has been filed along with delay of 850 days though the same was condoned by this Court.

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In this case, as I have already pointed out Rs.4,12,000/- is due till 10.11.2017 as per the orders in M.C.No.637/2009 and M.C. No.83/2014, which had become final. If the amount as per the order in M.C.No.83/2014 is calculated at the rate of Rs.5,500/(Rs.4,000/- + Rs.1,500/-) for 58 months from 10.11.2017 till 30.09.2022, the same would come to Rs.3,19,000/- (Rs.5,500 x 58). Thus, it is crystal clear that even ignoring the order in M.C.No.235/2017, which is impugned in the

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revision petition, the amount in arrears as per

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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the previous orders would come to Rs.7,31,000/-

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(Rs.4,12,000 + Rs.3,19,000/-). Out of which, Rs.2,00,000/- was paid by way of DD (in the calculation statement), the same is shown as Rs.1,99,500/-, since she received the said amount on encashment of the DD). Reducing

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Rs.1,99,500/-, the amount would come to Rs.5,31,500/-.

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Since the order in M.C. No.235/2017 is

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passed ex-parte, I am inclined to grant an

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opportunity to the revision petitioner to contest the matter on merits and, therefore, the impugned order in RPFC No.245/2022 shall stand set aside and the matter remitted back to the Family Court for fresh consideration, in so

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far as the enhancement as has been prayed for.

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However, the revision petitioner is

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bound to pay [approximately Rs.5,31,500/-

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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(Rupees Five Lakh Thirty One Thousand Five

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Hundred only)], the amount due under orders in M.C.No.637/2009 and M.C.No.83/2014, after adjusting Rs.1,99,500/- paid by way of DD as

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directed by this Court. Therefore, the revision petitioner is directed to deposit the entire arrears, within a period of one month from today.

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In the result, RPFC 245/2022 is

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allowed. Annexure-II order in M.C.No.235/2017 stands set aside and the matter remitted back to the Family Court, Malappuram with direction to consider the same giving an opportunity to the revision petitioner to file objection, to adduce evidence, if any, and for hearing.

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It is specifically ordered that the

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revision petitioner shall file objection within two weeks from the date of appearance and the

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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Family Court shall dispose of the same within six weeks thereafter, considering the relevant aspects granting enhancement of maintenance. On failure to file the objection by the revision petitioner within two weeks, the Family Court is at liberty to pass order ex-parte treating that the respondent has no objection in this matter.

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The revision petitioner in RPFC No.245/2022 is directed to deposit the entire arrears (approximately Rs.5,31,500/- and the final figure shall be fixed by the Family Court after adjusting the payment already made inclusive Rs.1,99,500/- paid by way of DD) within a period of one month from today, failing which the Family Court, Malappuram is directed to expedite the proceedings to execute the petitions pending before the Family Court,

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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Malappuram to realise the said amount from the respondent, at any rate within a period of 45 days from date of receipt of this order. It is ordered further that the revision petitioner shall continue to pay Rs.4,000/- and Rs.1,500/to the petitioners during the pendency of M.C. No.235/2017 also. O.P.(Crl.)No.229/2022 stands allowed to that extend.

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Parties are directed to appear before the Family Court, Malappuram on 18.10.2022 at 11.00 a.m.

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Registry is directed to forward a copy of this order to the Family Court, Malappuram, forthwith at any rate within a period of seven days from today.

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Sd/-

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A.BADHARUDEEN, JUDGE.

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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APPENDIX OF OP(CRL.) 229/2022

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE ORDER NO.637/2009 DATED, 19-4-2010 OF COURT, MALAPPURAM.	IN M.C. THE FAMILY
EXHIBIT P2	A TRUE COPY OF THE ORDER PASS NO.235/2017 OF THE FAMIL MALAPPURAM DATED, 10-11-2017.	ED IN M.C. Y COURT,
EXHIBIT P3	TRUE COPY OF THE PETITION NO.1242/2010 IN M.C.NO.637/2009 9-2010.	IN C.M.P. DATED, 18-
EXHIBIT P4	TRUE COPY OF THE PETITION (EXECUTION)NO.1424/2011 IN 637/2009 OF THE FAMILY COURT, DATED, 29-11-2011.	IN C.M.P. M.C.NO. MALAPPURAM
EXHIBIT P5	TRUE COPY OF THE PETITION (EXECUTION)NO.79/2014 IN M.C. OF THE FAMILY COURT, MALAPPURAM 3-2014.	IN C.M.P. NO.637/2009 DATED, 5-
EXHIBIT P6	TRUE COPY OF THE PETITION (EXECUTION)NO.285/2015 IN M.C OF THE FAMILY COURT, MALAPPURAM 7-2015.	IN C.M.P. .NO.83/2014 DATED, 30-
EXHIBIT P7	TRUE COPY OF THE PETITION (EXECUTION)NO.193/2016 IN M.C OF THE FAMILY COURT, MALAPPURAM 6-2016.	IN C.M.P. .NO.83/2014 DATED, 3-

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

¶145

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EXHIBIT P8	TRUE COPY OF THE (EXECUTION)NO.203/201 OF THE FAMILY COURT, 7-2017.	PETITION IN C.M.P. 7 IN M.C.NO.83/2014 MALAPPURAM DATED, 4-
EXHIBIT P9	TRUE COPY OF THE (EXECUTION)NO.343/201 OF THE FAMILY COURT, 8-2018.	PETITION IN C.M.P. 8 IN M.C.NO. 235/2017 MALAPPURAM DATED, 2-
EXHIBIT P10	TRUE COPY OF THE (EXECUTION)NO.245/201 OF THE FAMILY COURT, 8-2019.	PETITION IN C.M.P. 9 IN M.C.NO. 235/2017 MALAPPURAM DATED, 16-
EXHIBIT P11	TRUE COPY OF THE (EXECUTION)NO.211/202 OF THE FAMILY COURT, 9-2020.	PETITION IN C.M.P. 0 IN M.C.NO. 235/2017 MALAPPURAM DATED, 4-
EXHIBIT P12	TRUE COPY OF THE (EXECUTION)NO.194/202 OF THE FAMILY COURT, 9-2020.	PETITION IN C.M.P. 1 IN M.C.NO. 235/2017 MALAPPURAM DATED, 20-

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OP(Crl.) No.229 of 2022 and RPFC No.245 of 2022

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APPENDIX OF RPFC 245/2022

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PETITIONER'S ANNEXURES:

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ANNEXURE	I TRUE COPY OF	THE PETITION FILED AS M.C.
	235/2017, BY HON'BLE FAMILY	THE RESPONDENTS BEFORE THE COURT, MALAPPURAM.
ANNEXURE	II CERTIFIED COPY IN M.C. NO.23 FAMILY COURT,	OF THE ORDER DATED 10.11.2017 5/2017 PASSED BY THE HON'BLE MALAPPURAM.
ANNEXURE	III TRUE COPY OF T	HE WARRANT OF ARREST ISSUED BY
	THE HON'BLE	FAMILY COURT, MALAPPURAM IN
	C.M.P. (EX) 21	1/2020 IN M.C.235/2017.

Naseema E.M. v. Muhammed Asharaf

Case brief

What is this about?

What did the court decide?

Naseema E.M. v. Muhammed Asharaf

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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