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CHEQUE BOUNS CASE

In a Doemstic violence case, their lordships of the Kerala high court clearly upheld that the husband is not left with no remedy when he is fighting against the exparte orders issued by magistrate court by way of set aside petition on one hand and by filing appeal on the other hand, when his appeal is dismissed and when the certified copy of appeal judegement is not made available for filing revision, the high court by invoking its inherent power granted stay of the execution proceedings leveled by wife with a condition to deposit maintenance along with arrears.

Paragliding at Varkala beach, Thiruvananthapur...

Paragliding at Varkala beach, Thiruvananthapuram in the Indian state of Kerala. (Photo credit: Wikipedia)

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.
====================================
Crl. M.C. No.279 of 2011
====================================
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

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