IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 OP (FC).No. 1419 of 2011(R) --------------------------- OP.1082/2009 of FAMILY COURT, MALAPPURAM .................... PETITIONER: ------------------------ HUSSAIN PUZHAKALAKATH,S/O.KUNHI MOHAMMED MASTER, AGED 58,PUZHAKALAKATH HOUSE, PUTHARIKAL PARAPPANANGADI,MALAPPURAM DISTRICT. BY ADVS. SRI.HARISH R. MENON, SRI.K.T.SHYAMKUMAR. RESPONDENT(S): -------------------------- EACHARAN AYISHA @ SAFIYA NURUDHEEN, AGED 36 YEARS,D/O.NURUDHEEN,EACHARAN HOUSE, OTTUMMAL,PARAPPANGADI PO,TIRURANGADI TALUK. BY ADVS. SRI.K.P.SUDHEER, SMT.M.SINDHU THANKAM. THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21/07/2011 ALONG WITH OP(FC) NO.1490 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(FC) NO.1419/2011 R APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PETITION (O.P.1082/2009) OF FAMILY COURT, MALAPPURAM. P2: COPY OF THE CERTIFICATE ISSUED BY THE DOCTOR REFERRING THE PETITIONER TO MEDICAL COLLEGE, CALICUT. P3: COPY OF THE DISCHARGE SUMMARY ISSUED FROM MEDICAL COLLEGE HOSPITAL, CALICUT. P4: COPY OF THE COMMON ORDER DTD. 17/02/2011 IN I.A.NOS.2539/2010 IN O.P.NO.1082/2009 AND CMP.NO.1078/2010 IN MC.NO.1137/2010. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.NO.2539 OF 2010 DTD. 01/10/2010 BEFORE THE FAMILY COURT, MALAPPURAM. R1(B): COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN I.A.NO.2539 OF2010 IN O.P.NO.1083 OF 2009 BEFORE THE FAMILY COURT, MALAPPURAM. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. ----------------------------------- O.P.(FC).Nos.1419 & 1490 OF 2011 ------------------------------------ Dated this the 21st day of July, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.The petitioner challenges ex parte orders passed by the Family Court in a proceedings under Section 125(3) Cr.PC and in an original petition under Section 7 of the Family Court Act for past maintenance. Learned counsel for the respondent is justified in saying that the petitioner has efficacious alternate remedy in the form of objections referable to authority under Order IX Rule 13 CPC and similar provisions. Yet, we were inclined to think at the commencement of hearing that these original petitions having been admitted, we could consider the matter by imposing conditions to vacate the ex parte orders. We thought of this procedure because we find that at the stage of admission, this Court had issued certain interim orders which tend to indicate that what would have worked in the OP(FC).1419/11 & 1490/11 2 mind of the court at that time is in line of what we have said above. But, we find that the petitioner has not complied with all the conditions but has, in our view, quite dubiously acted to make it appear that he is obeying the interim orders. We say this in the light of his conduct which is noted hereinafter. 2.O.P(FC).1490/11 arising from the MC proceedings under Cr.PC was admitted and operation of the impugned order stayed on condition that the petitioner would deposit Rs.15,000/- before the court below, which amount, the respondent woman was permitted to withdraw. In OP (FC).1419/11 which arose from the civil proceedings, stay was granted ordering deposit of Rs.25,000/- out of the decree debt and Rs.5,000/- as litigation expenses, with an interdiction against the respondent withdrawing the amount of Rs.25,000/-, however directing release of only the litigation expense of Rs.5,000/-. The petitioner has, very cleverly complied with the interim order in OP(FC).1419/11 OP(FC).1419/11 & 1490/11 3 and has left without compliance the order in OP(FC). 1490/11. He has chosen to deposit Rs.25,000/- in the case where there is no direction to release, though the amount to be deposited in the other case was lesser, that is, Rs.15,000/-. Obviously, his intention was that the woman should not get the amount of Rs.15,000/-, which this Court had ordered that she would get. That order was issued on 7.4.2011. This means, until today, that is, 21.7.2011, the petitioner has enjoyed the order of stay in the criminal proceedings without paying the woman the amount of Rs.15,000/- in terms of the order of stay granted by this Court in exercise of discretionary authority under Article 227 of the Constitution. This action of the petitioner is nothing but abuse of the process of court and an attempted gullery intended to overreach the court's jurisdiction and mock at a lady in peril. 3.For the aforesaid reasons, we decline jurisdiction to entertain these writ petitions. We are told that the OP(FC).1419/11 & 1490/11 4 respondent has deposited Rs.5,000/- as litigation expenses before the court below. Having regard to the conduct of the petitioner, we impose a further amount of Rs.15,000/- as costs on the petitioner in both these cases together. The court below will ensure that this is also recovered from him unless it is paid within a period of one month from now. If such amount is paid within the time limit fixed above, the court below will consider any application/applications that he may file seeking relief against the ex parte orders in accordance with law, however that, the amount of costs covered by this judgment shall not be adjusted against any other sum that may be found due from the petitioner before us. The writ petitions are ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- K.SURENDRA MOHAN, Judge. kkb.22/7.