IBRAHIMKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) This Crl.M.C has been filed seeking to set aside the order in C.M.P.2666/2017 in M.C.38/2013 on the file of Judicial First Class Magistrate Court-II, Kottarakkara.

(2.) Petitioner is the respondent in M.C.38/2013 which has been filed under Sec.12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as PWDV Act). Along with the petition, respondents 2 to 5/petitioners in M.C filed Crl.M.P.86/2013 for interim order under Sec.23(2) of the Pwdv Act. In that petition, as per order dated 5.4.2013, the learned Magistrate passed interim protection orders including a direction to pay interim maintenance of Rs.3,000/-, 1500/-each to respondents 3 to 5 respectively. When the M.C came up for evidence, the defence of the petitioner/respondent was struck off for the reason that he has not cleared the arrears of interim maintenance awarded. Thereafter chief affidavit of the 2nd respondent/1st petitioner was permitted to be filed and the case was posted for hearing without giving an opportunity to prove his defence. So he filed C.M.P.2666/2017 to review the order dated 11.4.2017 and for re-opening the evidence and the same was dismissed by the learned Magistrate. That order is impugned before this court.

(3.) According to the learned counsel for the petitioner, before passing the interim order in Crl.M.P.86/2013 he was not heard and he has been suffering from 65% of permanent disability and all those factors could not be brought in evidence since his defence was struck off. It is also his contention that while he suffered from a stroke resulting partial paralysis of right upper and lower limbs,and undergoing treatment the 2nd respondent left him. He has got serious contentions in the M.C and striking off the defence has caused miscarriage of justice.