IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 OP(Crl.).No. 3469 of 2011(Q) ---------------------------- CRMP 441/2010 IN CRA.82/2010 of Addl. Sessions Court, Kottayam .................... PETITIONER ------------ V.C.THOMAS, AGED 72 YEARS, S/O.CHACKO, VADAKKECHIRAYATH HOUSE, MELAMPARA P.O., THALAPPALAM VILLAGE, KOTTAYAM DISTRICT. BY ADVS. SRI.SHABU SREEDHARAN SRI.C.K.PRASAD SRI.T.S.ANURAJ SRI.B.BALAPRASANNAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. ACHAMMA, W/O.THOMAS, VADAKKECHIRAYATHU HOUSE, MELAMPARA P.O., THALAPPALAM VILLAGE, KOTTAYAM DISTRICT, NOW RESIDING AT VELLIYAPPALLY, PRAVITHANAM P.O., KOLLAM- 686651. R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN R2 BY SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE ADV.SRI.S.MANU THIS O. P. (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(Crl.).No. 3469 of 2011(Q) APPENDIX PETITIONERS EXHIBITS: EXHIBIT-P1. A TRUE COPY OF THE ORDER IN M.C.NO.222/2007 BEFORE THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR DATED 12.01.2009. EXHIBIT-P2. A TRUE COPY OF THE ORDER IN M.C.(DV) NO.43/2007 OF JFCM, ERATTUPETTA DATED 20.01.2010. EXHIBIT-P3. A TRUE COPY OF ORDER IN CRL.M.P.NO.441/2010 IN CRL.APPEAL NO.82/2010 DATED 20.02.2010 OF THE ADDL.SESSIONS JUDGE, KOTTAYAM. EXHIBIT-P4. A TRUE COPY OF THE ORDER IN CRIMINAL MP NO.441/2010 IN CRL.A NO.82/2010 DATED 26/03/2011 OF THE ADDL.DISTRICT AND SESSIONS JUDGE (ADHOC)-II, KOTTAYAM DIVISION. EXHIBIT-P5. A TRUE COPY OF THE PETITION IN MC (DV)NO.43/07 DATED 29.03.2010 BEFORE THE JFCM, ERATTUPETTA. EXHIBIT-P6. A TRUE COPY OF THE ORDER IN MC(DV)NO.43/07 DATED 10.10.2011 OF THE JFCM, ERATTUPETTA. RESPONDENTS EXHIBITS: NIL //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN, J. ------------------------------------------ O.P.Crl. No: 3469 OF 2011 (Q) ------------------------------------------ Dated this the 19th day of November, 2011 J U D G M E N T The petitioner is the husband. The second respondent is his wife. The second respondent filed a petition before Family Court seeking monthly maintenance of Rs.5,000/-. She also filed petition before the learned Magistrate under the Protection of Women from Domestic Violence Act, inter alia, seeking maintenance. The Family Court ordered maintenance at the rate of Rs.2,000/- per month. One year thereafter, the learned Magistrate passed Exhibit P2 Order, for maintenance, at the rate of Rs.5,000/- per month. Exhibit P2 Order was challenged before the Sessions Court. Exhibit P2 Order was sought to be stayed by the petitioner though operation of the Order, so far as it relates to other aspects, were stayed by the Sessions Court. It was made clear that the respondent is at liberty to take steps for O.P.Crl. No: 3469 OF 2011 (Q) -2- realization of maintenance awarded by the learned Magistrate. The main argument advanced by the learned counsel for the petitioner is that since Family Court is headed by the District Judge and since the monthly maintenance awarded by that Court was only Rs.2,000/-, the monthly maintenance awarded by the learned Magistrate at Rs.5,000/- just after one year therefrom cannot be reasonable. Exhibit P2, the impugned order of the Magistrate, is now pending in appeal before the Sessions Court. Whether the learned Magistrate was justified in awarding Rs.5,000/- as monthly maintenance is a matter to be considered in appeal after re-appreciation of evidence. At this stage it cannot be said that the order passed by the learned Magistrate is illegal. O.P.Crl. No: 3469 OF 2011 (Q) -3- It is pointed out by the learned senior counsel for the respondent that the petitioner deserves no mercy since the only deposit made by him before the Court is Rs.15,000/-. The O.P. was filed before the Family Court on 28.9.2007. Even at the rate of Rs.2,000/-, the total amount payable by the petitioner comes to nearly Rs.1,00,000/-. Even without depositing that amount, the petitioner comes to this Court saying that the Order passed by the learned Magistrate is illegal. It is also pointed out by the learned senior counsel that the petitioner, with hired goondas forcibly dragged the second respondent out of her house, robbed all her gold ornaments, with respect to which there was a case in which, after trial, the petitioner was convicted and sentenced. What ever that be, this petition is filed under Article 227 of the Constitution of India. When the petitioner has not even paid the amount due, even as per the order passed O.P.Crl. No: 3469 OF 2011 (Q) -4- by the Family Court, he cannot seek indulgence of this Court. The question whether the amount awarded by the Family Court, if paid by the petitioner, is liable to be set off or whether the amount awarded is excessive, are matters which are certainly to be gone into by the Appellate Court. If at all the petitioner has any grievance, he has to move the Sessions Court where his Appeal, Criminal Appeal No:82/2010, is pending, for modification of the Order, which if at all, can be done only after the entire amount due as per the Order passed by the Family Court is deposited. I find no reason to keep in abeyance the Order passed by the learned Magistrate. Petition is hence dismissed. N.K. BALAKRISHNAN, JUDGE jjj