IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 279 of 2011()
1. GIREESH KUMAR G., AGED 46 YEARS,
... Petitioner
Vs
1. PRASEENA, AGED 37 YEARS, D/O.
... Respondent
For Petitioner :SMT.MINI GANGADHARAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :27/01/2011
O R D E R
THOMAS P.JOSEPH, J.
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Crl. M.C. No.279 of 2011
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Dated this the 27th day of January, 2011
O R D E R
Petitioner suffered an ex parte order (Annexure-R) dated
October 9, 2009 in C.M.P. No.3729 of 2009 of the court of learned
Judicial First Class Magistrate, Varkala under Section 12 of the
Protection of Women from Domestic Violence Act, 2005. As per the
impugned order petitioner is directed to pay Rs.5,000/- per month
towards maintenance of respondent and children from 23.06.2009
(date of petition) till date of order and at the same rate thereafter.
There is also a direction to pay Rs.4,50,000/- to the respondent
being the value of gold ornaments and Rs.6,50,000/- for
construction of building. Petitioner filed C.M.P. No.3659 of 2010 to
set aside the ex parte order. Leaned counsel submitted that the
said petition is pending consideration and the case is posted on
26.02.2011. In the meantime petitioner challenged Annexure-R,
order on C.M.P. No.3729 of 2009 in the court of learned Sessions
Judge, Thiruvananthapuram in Crl. Appeal No.357 of 2010.
Learned Sessions Judge has dismissed that appeal. Pursuant to
that, respondent has filed application to execute Annexure-R,
CRL.M.C. No.279 of 2011
-: 2 :-
order. Petitioner states that though applied for he has not been
served with a copy of judgment in Crl. Appeal No.357 of 2010.
Hence this petition requesting to quash Annexure-R, order (in
C.M.P. No.3729 of 2009) under Section 482 of the Code of
Criminal Procedure (for short, “the Code”) as remedy of appeal is
exhausted by dismissal of Crl. Appeal No.357of 2010. Learned
counsel submitted that pursuant to the dismissal of the appeal
respondent has initiated execution proceedings and the matter is
posted on 05.02.2011.
2. If Crl. Appeal No.357 of 2010 is dismissed for whatever
reason it be, I am not persuaded to think that petitioner is without
any remedy. It is open to the petitioner to challenge that
judgment under Sec.397 of the Code if circumstances warranted
that. In such a situation there is no reason why this Court should
interfere under Sec.482 of the Code. But to invoke the statutory
remedy against judgment in Crl. Appeal No.357 of 2010
petitioner has to get a copy of the judgment. If in the meantime
Annexure-R, order is executed petitioner will be put to difficulties
and inconvenience. In the circumstances I am inclined to grant
some relief to the petitioner but ensuring that respondent is not
put to inconvenience on account of that.
CRL.M.C. No.279 of 2011
-: 3 :-
Resultantly, Criminal Miscellaneous Case is disposed of in
the following lines:
(i) Leaned Sessions Judge,
Thiruvananthapuram is directed to issue certified copy
of judgment in Crl. Appeal No.357 of 2010 of that court,
if it is applied for as early as possible and at any rate
within one month from the date of receipt of a copy of
this order.
(ii) Execution of Annexure-R, order dated
October 09, 2009 is stayed for a period of forty (40)
days from this day or till appropriate order is passed by
the revisional court, whichever is earlier subject to the
following conditions:
(a) Petitioner shall deposit in the trial
court for payment to the respondent
`.30,000/- (Rupees Thirty thousand only)
(being a portion of the arrears of
maintenance ordered by the learned
CRL.M.C. No.279 of 2011
-: 4 :-Magistrate vide Annexure-R, order) within two
weeks from this day.
(b) Petitioner shall continue to
deposit in the trial court for payment to the
respondent maintenance allowance payable
from October 09, 2010 during the said period
of forty (40) days. The said amount shall be
paid within a period of one month from this
day.
(c ) In case of default of any of the
conditions stated above, it will be open to the
respondent to proceed execution of
Annexure-R, order.
THOMAS P. JOSEPH, JUDGE.
vsv