Ebin George. C.a vs Leya Augustine

Type Court Judgment Court Kerala Decided Apr 06, 2022

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https://sooperkanoon.com/case/1463429

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Citation: sooperkanoon.com/1463429
Court: Kerala High Court
Judge: Honourable Mrs. Justice Mary Joseph
Decided On: Apr 06, 2022
Case Number: OP(Crl.)/126/2022

Parties & Advocates

Appellant / Petitioner

Ebin George. C.a

Respondent

Leya Augustine

Excerpt

.....objection in m.p.369/2021 in mc no.148/2021 and ext-p4 asset and liability affidavit in mc no.148/2021 afresh on merits in a time bound manner.(ii) to issue such other order or direction which thishon’ble court may deem fit and proper in the factsand circumstances of the case.”2. the family court, ernakulam has passed an order inm.p.no.369/2021 in m.c.no.148/2021 on 07.01.2022 directing the petitioner herein to pay monthly allowance as interim maintenance at the rate of rs.5,000/- each to the respondents 1 and 2. the grievance of the petitioner was that at the time of passing of theorder on 07.01.2022, he had filed the affidavit disclosing hisassets and liabilities as directed by the apex court in rajnesh v. neha and others [2020 (6) khc 1] and has produced 14 documents which incorporate his salary certificate also. according to him, the family court in the impugned order failed to refer to the aspects sworn to in the affidavit and also the documents produced. according to him, he is highly prejudiced by the inaction of the family court in not adverting to his statements in the affidavit and documents which were already on record on 05.01.2022 i.e, two days prior to the passing of the impugnedorder itself. the learned counsel has also produced photo copies ofthe documents which had been made available to the family court on 05.01.2022 for it’s consideration. the salary certificate of the petitioner and the statement of accounts disclosing the payment of installments towards the loan availed by him were also incorporated in the documents produced before the family court. he has also sworn to the fact that the 1 st respondent is having sufficient income and is able to maintain herself.3. having gone through the impugned order, this court isconvinced that the family court failed to take note of the affidavit and the documents while passing the impugned order. therefore, there is every reason to set aside the impugned order.in the result, the petition.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 6TH DAY OF APRIL 2022 / 16TH CHAITHRA, 1944 OP(CRL.) NO. 126 OF 2022 AGAINST THE ORDER/JUDGMENT IN MC 148/2021 OF FAMILY COURT,ERNAKULAM DATED 07.01.2022 PETITIONER/RESPONDENT IN MC: EBIN GEORGE C.A.,AGED 33 YEARS S/O. ALBY.C.G, CHITTEPPALLY HOUSE, KUMBALANGHI, C.K.DHAMODHARAN ROAD, KUMBALANGHI.P.O, ERNAKULAM DISTRICT, PIN - 682007 BY ADVS.S.SAJU A.V.SAJAN ANJANADEVI.G SAI NIKHITHA M. RESPONDENTS/PETITIONERS IN M.C.:
1 LEYA AUGUSTINE,AGED 26 YEARS D/O. P.G.AUGUSTINE, 260-PADASSERY,KANNAMALY, ANDIKKADAVU.P.O, ERNAKULAM DISTRICT PIN - 682 008 2 ALBERT WAYNE (MINOR), AGED 1 YEARS S/O. EBIN GEORGE, REP-BY HIS MOTHER, LEYA AUGUSTINE,AGED 26 YEARS, D/O. P.G.AUGUSTINE, 260-PADASSERY,KANNAMALY, ANDIKKADAVU.P.O, ERNAKULAM DISTRICT. PIN - 682 008 3 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682 031
OTHER PRESENT: PP SRI ARAVIND V MATHEW THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 06.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 06th day of April, 2022 This Original Petition is filed under Article 227 of Constitution of India seeking for the following reliefs:

“(i) To set aside the Order passed in M.C.No.148/2021 dated 07.01.2021 by the Hon’ble Family Court, at Ernakulam and consequently direct the learned Family Court Judge to re-consider Ext-P3 objection in M.P.369/2021 in MC No.148/2021 and Ext-P4 asset and liability affidavit in MC No.148/2021 afresh on merits in a time bound manner.

(ii) to issue such other order or direction which this

Hon’ble Court may deem fit and proper in the facts

and circumstances of the case.”

2. The Family Court, Ernakulam has passed an order in

M.P.No.369/2021 in M.C.No.148/2021 on 07.01.2022 directing the petitioner herein to pay monthly allowance as interim maintenance at the rate of Rs.5,000/- each to the respondents 1 and 2. The grievance of the petitioner was that at the time of passing of the

order on 07.01.2022, he had filed the affidavit disclosing his

assets and liabilities as directed by the Apex Court in Rajnesh v. Neha and others [2020 (6) KHC 1] and has produced 14 documents which incorporate his salary certificate also. According to him, the Family Court in the impugned order failed to refer to the aspects sworn to in the affidavit and also the documents produced. According to him, he is highly prejudiced by the inaction of the Family Court in not adverting to his statements in the affidavit and documents which were already on record on 05.01.2022 i.e, two days prior to the passing of the impugned

order itself. The learned counsel has also produced photo copies of

the documents which had been made available to the Family Court on 05.01.2022 for it’s consideration. The salary certificate of the petitioner and the statement of accounts disclosing the payment of installments towards the loan availed by him were also incorporated in the documents produced before the Family Court. He has also sworn to the fact that the 1 st respondent is having sufficient income and is able to maintain herself.

3. Having gone through the impugned order, this Court is

convinced that the Family Court failed to take note of the affidavit and the documents while passing the impugned order. Therefore, there is every reason to set aside the impugned order.

In the result, the petition is allowed and the impugned order

is set aside. The Family Court, Ernakulam shall pass an order in Crl.M.P.No.369/2021 after duly considering the facts sworn to in the affidavit and the documents made available by the respondent to it on 05.01.2022. A considered order shall be passed within ten days of receipt by it of a certified copy of this judgment. Sd/- MARY JOSEPH JUDGE ttb APPENDIX OF OP(CRL.) 126/2022 PETITIONER’S EXHIBITS : Exhibit-P1 TRUE COPY OF THE MEMORANDUM OF MC NO. 30.06.2021 BEFORE THE FAMILY COURT AT ERNAKULAM Exhibit-P2 THE TRUE COPY OF THE PETITION FILED BY THE RESPONDENTS IN M.P NO. 369/2021 IN M.C NO. 148/2021 DATED 30.06.2021 FOR INTERIM MAINTENANCE Exhibit-P3 TRUE COPY OF THE OBJECTION SUBMITTED BY

THE PETITIONER IN M.P NO. 369/2021 IN M.C NO. 148/2021 ON 05.01.2022 BEFORE THE HON’BLE FAMILY COURT AT ERNAKULAM Exhibit-P4 TRUE COPY OF THE ASSET AND INCOME AFFIDAVIT FILED BY THE PETITIONER DATED 05.01.2022 IN M.C NO. 148/2021 BEFORE THE HON’BLE FAMILY COURT ERNAKULAM Exhibit-P5 THE TRUE COPY OF THE ORDER PASSED IN M.C. FAMILY COURT ERNAKULAM IS PRODUCED HEREWITH AND MARKED AS EXHIBIT-P5 Exhibit-P6 TRUE TYPED COPY OF THE A- DIARY EXTRACT DATED 15.02.2022 IN MC NO. 148/2021

Same Court & Year Kerala · 2022 Same Parties Ebin George. C.a vs Leya Augustine Same Judge Honourable Mrs. Justice Mary Joseph