NISAR Vs. SOUDA @ SOUDABAI

JUDGEMENT

(1.) The facts projected in this case are as follows:

(2.) The petitioner is the respondent and respondents are the petitioners in M.C.No.226/2016 on the files of Family Court, Malappuram. The M.C is filed by the respondents, who are the wife and minor children of the petitioner, under Section 125(1) Cr.P.C, claiming maintenance allowance. The petitioner herein married the 1 st respondent on 06.02.2004. The minor respondents are born in the wedlock. Gold ornaments of the 1st respondent are misappropriated by the petitioner. Few months after marriage, the petitioner ill treated, harassed her and also demanded more properties. Since from 2014, the respondents are being deserted. They are not maintained and are incapable of maintaining themselves. That the petitioner is having sufficient means and income but he is not paying maintenance. Hence the MC is filed claiming maintenance @Rs.12,000/-, Rs.7,000/- and Rs.7,000/- respectively to the respondents. The petitioner entered appearance and both the parties were sent for counseling and the matter was settled. Subsequently, the petitioner was set ex-parte. MC was allowed directing the petitioner to pay a sum of Rs.5,000/- per month to the 1st respondent and a sum of Rs.3,000/- per month to each of the respondents 2 and 3 towards their maintenance allowance from the date of filing of the petition. The petition to set aside ex-parte order with delay petition was filed. The court below condoned the delay, allowed the petition and set aside the ex-parte award. But while allowing the petitions, the court below imposed a condition that the petitioner shall pay the entire maintenance allowance to the respondent which they have claimed in the execution petition filed in MC No.226/2016 within 15 days from the date of the order, failing which the petitions shall stand automatically dismissed. Ext.P-3 order is illegal and unsustainable, against the principles enunciated under Sec.5 of Limitation Act by the Apex Court. The petitioner apprehends arrest and detention in execution of the ex-parte order for exorbitant amounts.

(3.) It is in the light of these averments and contentions that the petitioner has filed the instant Original Petition (Crl.) under the enabling provisions contained in Art.227 of the Constitution of India with the following prayer: