Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943 RPFC NO. 28 OF 2022
ORDER DATED 23.10.2021 PASSED BY THE FAMILY COURT, MALAPPURAM IN
M.C.NO.345/2019 REVISION PETITIONER/PETITIONER: CHANDY SAMUEL, 82 YEARS, S/O. CHANDY, CHUTTIPARAYIL VEEDU, MUTHEDAM POST, AMSOM AND DESOM, POOLAPOYIKA, NILAMBUR TALUK, MALAPPURAM, - 679331 BY ADVS.SRI.ALEX.M.SCARIA SMT.BEENA JOSEPH SRI.A.J.RIYAS SMT.SARITHA THOMAS RESPONDENTS/RESPONDENTS: 1 SAIMON SAMUEL, 50 YEARS, CHUTTIPARAYIL VEEDU, EDAKKARA AMSOM DESOM AND POST, NILAMBUR TALUK, MALAPPURAM-679 331 2 SUNIL C.S, 44 YEARS, S/O. SAMUEL, CHUTTIPARAYIL VEEDU, EDAKKARA AMSOM DESOM AND POST, NILAMBUR TALUK, MALAPPURAM - 679 331 R1 AND R2 BY ADV. SRI.P.VENUGOPAL THIS REV.PETITION (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
Dated this the 17th day of March, 2022
This revision is filed challenging an order passed by Family Court, Malappuram on 23.10.2021 dismissing M.C. No.345/2019. The grievance of the petitioner was that he was aged 78 years and satisfactory evidence to establish that he was unable to maintain himself was adduced in the M.C. But the Family Court, without having a proper appreciation of the documentary evidence adduced by him, passed the impugned order. According to him in paragraph 6 of the impugned order, the court below has stated that the petitioner has received around Rs.90,00,000/- as per Exts.D1 to D3 documents and he failed to explain what he has done with the said funds. Accordingly the Family Court observed that Rs.90,00,000/- in deposit, would accrue interest around Rs.50,000/- per month and that is more than sufficient for his maintenance. The court below concluded on the basis of the above observation that the petitioner is richer than the respondents and cannot be said to be unable to maintain himself. Accordingly the
application seeking maintenance allowance from his sons was dismissed.
2. Going by the appendix of the order impugned it is found that an agreement executed 28.05.2009 was marked in evidence from the side of the petitioner. Going by the order, this Court notices that no discussion is made about Ext.P22 in the impugned order. According to the petitioner if Ext.P22 was
considered in the proper perspective, the impugned order
declining maintenance allowance would not have been passed. Accordingly he seeks for a remand of the M.C. for consideration afresh.
3. The counsel representing the parties to the revision canvassed for opportunity to adduce additional evidence to establish the stand taken in the pleadings.
4. Sri. P.Venugopal, the learned counsel for the respondents opposed the claim of the petitioner. According to
him even if a discussion is had on Ext.P22, the petitioner would not be benefited in any manner. He resisted the claim of the petitioner for monthly maintenance allowance contending that he was able to maintain himself and evenif the case is remanded and evidence is reconsidered that would not benefit the petitioner in any manner.
5. It is noticed from the impugned order that a discussion on Ext.P22 is lacking there. Therefore, the impugned order being passed on an improper appreciation of evidence is required to be set aside.
6. In the result, revision petition is allowed. The
impugned order is set aside. The court below shall grant reasonable opportunity to both parties to adduce additional evidence if any, on finding that the evidence proposed to be adduced are relevant and admissible. The court below shall pass appropriate orders in the M.C. on a proper appreciation of entire evidence on record. Both parties shall co-operate with the proceedings of the court below. The court below shall dispose of the M.C. within a period of five months from the date on which the M.C. is restored on it’s file. Sd/- MARY JOSEPH JUDGE MJL