Muhammed Musthafa vs State Of Kerala

A. Badharudeen, J

This Criminal Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973, challenging judgment, dated 9.4.2024 in Crl.A.No.32/2024 on the files of the Assistant Sessions Court, Palakkad, arising out of order in C.M.P.No.3245/2023 in M.C.No.77/2023 on the files of the Judicial First Class Magistrate Court – I, Ottapalam. The revision petitioners herein are the respondents in the C.M.P. and the appellants in Crl.A.No.32/2024.

Heard the learned counsel for the revision petitioners on admission. Also heard the learned Public Prosecutor appearing for the 2nd respondent State.

I shall refer the parties in this revision petition with reference to their status before the Magistrate Court, as ‘petitioner’ and ‘respondents’ hereinafter.

The petitioner, who is the wife of the 1st respondent, filed petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, ‘the DV Act’ hereinafter), seeking various reliefs, alleging acts of domestic violence on the part of the respondents in the petition. She also filed an interim application under Section 23(2) of the DV Act, claiming protection order as well as maintenance order, as an interim measure.

According to the learned counsel for the petitioner, she did not have any means of maintenance and the 1st respondent has been working as bus conductor and has been earning Rs.30,000/-per month from the said job. That apart, he also has been doing real estate business and earns Rs.50,000/- therefrom. The petitioner also sought protection from doing acts of domestic violation by the respondents.

Respondents 1, 2 and 4 filed objection to the petition, denying acts of domestic violence and also contending that the petitioner is employed and could maintain herself. The financial capacity of the 1st respondent to pay the maintenance claim also disputed.

The learned Magistrate appraised the contentions and thereafter, granted reliefs as under:

“(a)The first respondent is directed to pay Rs.3,500/- to the petitioner and Rs.2,500/- to the child as maintenance per month from the date of filing petition (12.4.2023)

(b) The respondents are restrained from committing any act of domestic violence including physical and mental harassment against the petitioner at the house or outside.

(c) The respondents are restrained from forcefully taking daughter Siva Mariyam from the custody of the petitioner.

(d) The respondents are restrained from entering the house where the petitioner and her daughter are residing.”

At the time of hearing, the learned counsel for the respondents/revision petitioners mainly raised contention with regard to the order of interim maintenance granted by the trial court confining the same to Rs.3,500/- to the petitioner and Rs.2,500/- to the child as maintenance on the submission that the same is on higher side. According to the learned counsel for the respondents, the 1st respondent is a coolie worker and the petitioner has been employed in a lab attached to the Cochin International Airport Authority and is capable of maintaining herself. It is also pointed out that the 1st respondent is ready to look after the child. According to to the learned counsel, the employment of the petitioner was not considered by the trial court or by the appellate court. Therefore, grant of maintenance to the petitioner is unwarranted and therefore, the order impugned requires interference.

On  perusal  of  the  order  of  the  trial  court,  it  is discernible that the petitioner raised specific contention that she did not have any job or income and the 1st respondent is a person, doing the job of a conductor in a private bus and has been getting Rs.30,000/- per month from the said job. That apart, the petitioner alleged further that the 1st respondent also has been doing real estate business and earning Rs.50,000/- therefrom. As far as the employment of the petitioner is concerned, in the objection filed by respondent Nos.1, 2 and 4, a contention was raised that the petitioner was employed, without specifying what job she had been doing and what the income she derived therefrom. In fact, no materials placed before the trial court to see any employment or income of the petitioner, in any manner. The trial court considered the contention raised by the petitioner to the effect that the 1st respondent has been earning Rs.80,000/- per month, and negatived the said contention for want of evidence. However, the trial court found that the 1st respondent has a duty to take care of his wife and child and for which, a reasonable amount was required. Accordingly, Rs.3,500/- to the petitioner and Rs.2,500/- to the child as interim maintenance per month from 12.4.2023, was granted.

While challenging the concurrent verdicts, the learned counsel for the respondents argued that the 1st respondent is a coolie worker and therefore, he could not pay such a higher amount of maintenance. It is interesting in note that the amount of interim maintenance granted by the trial court is Rs.3,500 + 2,500 i.e. Rs.6,000/- per month alone as maintenance to the petitioner and the child. In fact, the same is very low and the challenge against the said claim, at the interim stage is found to be untenable.

When this Court called for a report from the Judicial First Class Magistrate Court-I, Ottapalam, it was reported by the learned Magistrate that even though C.M.P.No.10573/2024 has been filed by the petitioner to realise the arrears of maintenance ordered as per the order impugned, no payment effected by the 1st respondent, so far. In fact, grant of interim maintenance at the rate of Rs.3,500/- to the petitioner, who had no job or income and Rs.2,500/- to the child as interim arrangement, is only to be justified and the challenge against such order is liable to be repelled.

In the result, this Criminal Revision petition fails and is dismissed, confirming the orders impugned with direction to the 1st respondent to clear the arrears of maintenance and continue to pay the said sum till disposal of the M.C. by the trial court.

Faced with the situation, the learned counsel for the respondents/revision petitioners sought 3 months’ time to clear the arrears of maintenance. In fact, the 1st respondent has not paid any amount so far. Therefore, the 1st respondent is directed to deposit 50% of the arrears, within a period of 2 weeks from today and to clear the balance within a period of 6 weeks thereafter. If the amount is not deposited or paid, as directed, the learned Magistrate is directed to expedite the procedure in C.M.P.No.10573/2024 and realise the amount, as per law, without fail.

Registry is directed to forward a copy of this order to the jurisdictional court, for information and further steps.