Dony vs Diya Dony(Minor)

DONY vs Diya Dony(Minor)

Type Court Judgment Court Kerala Decided Aug 25, 2020

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https://sooperkanoon.com/case/1781553

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Citation: sooperkanoon.com/1781553
Court: Kerala High Court
Judge: Honourable Mr.Justice T.V.Anilkumar
Decided On: Aug 25, 2020
Case Number: OP(Crl.)/221/2020

Parties & Advocates

Appellant / Petitioner

DONY

Respondent

Diya Dony(Minor)

Excerpt

.....he is working as a helper depending on his parents. he further alleges that his wife, on the other hand, is getting substantial income from st.james hospital where she is working as a nursing manager. it is stated that m.c.no.222/2019 filed under section 127 of the cr pc is still pending adjudication and no final orders have been so far passed.3. this original petition has been filed seeking to declare the distraint warrant issued against the petitioner to be illegal on the ground that it was issued before adjudicating m.c.no.222/2019 in which his claim for reduction of maintenance is under consideration.4. during the pendency of this proceeding, the petitioner pursuant to the direction issued by this court, made payment of an amount of rs.45,000/-. :-4-: while m.p.no.869/2019 was filed, the respondent had conceded having received rs.95,000/-. therefore, altogether the respondent received an amount of rs.1,37,000/- and what remains to be payable by the petitioner is only rs.40,000/-.5. after hearing the learned counsel for the petitioner and respondent, i am of the opinion thatthe outstanding balance of rs.40,000/- shall be paid by the end of november, 2020. in the fitness of things, the court below is also to be directed to take up m.c.no.222/2019 for consideration and pass necessary orders after conducting inquiry in accordance with law. in the result, this original petition isdisposed of directing the family court, irinjalakkuda, to consider and dispose of m.c.no.222/2019 within a period of three monthsfrom the date of receipt of a certified copy of :-5-: this judgment. there shall be a direction to the petitioner also to deposit the outstanding balance of rs.40,000/- due as per m.p.no.869/2019, by the end of november, 2020. the distraint warrant issued against the petitioner shall remain in abeyance till the disposal of m.c.no.222/2019 or the end of november,2020 whichever.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942 OP(Crl.).No.221 OF 2020 AGAINST THE ORDER IN M.P. NO.869/2019 IN MC 217/2016 OF FAMILY COURT, IRINJALAKUDA PETITIONER/RESPONDENT: DONY, AGED 43 YEARS, S/O.MAINATTI PAULOSE, MAINATTIL HOUSE, KORATTY DESOM, THEKKUMURI VILLAGE, CHALAKKUDY TALUK, THRISSUR DISTRICT, PIN-680308. BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA RESPONDENT/PETITIONER: DIYA DONY(MINOR), D/O.DONY, AGED 9½ YEARS, REPRESENTED BY HER MOTHER JISMY, D/O.JACOB, AGED 33 YEARS, KALLIYATHPARAMBIL HOUSE, PERAMBRA DESOM, KODAKARA VILLAGE, CHALAKKUDY TALUK, THRISSUR DISTRICT, PIN-680689. BY ADV. SMT.K.V.BHADRA KUMARI THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 25.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :-2-: Dated this the 25th day of August, 2020

J U D G M E N T

The petitioner is the father of the respondent

child aged 9½          years, in whose favour the Family
Court,        Irinjalakkuda,         passed        an      order     dated
11.12.2017       in    M.C.No.217/2016             awarding        monthly

maintenance of Rs.5,000/-. That order has become final and the petitioner has not questioned its legality in any forum.

2. For the purpose of executing the award of maintenance the respondent filed M.P.No.869/2019 in

which    the    Family       Court    issued       distraint       warrant
which    is    pending       execution.      In    the     meantime,     he
filed    M.C.No.222/2019           seeking        alteration       of   the

maintenance amount alleging that subsequent to the award, there occurred change of circumstances in his as well as the life of the mother of the child. According to him, he lost his job in foreign :-3-: country since 4.12.2018 and thereafter he is working as a helper depending on his parents. He further alleges that his wife, on the other hand, is getting substantial income from St.James Hospital where she is working as a Nursing Manager. It is stated that M.C.No.222/2019 filed under Section 127 of the Cr PC is still pending adjudication and no final orders have been so far passed.

3. This original petition has been filed seeking to declare the distraint warrant issued against the petitioner to be illegal on the ground that it was issued before adjudicating M.C.No.222/2019 in which his claim for reduction of maintenance is under consideration.

4. During the pendency of this proceeding, the petitioner pursuant to the direction issued by this Court, made payment of an amount of Rs.45,000/-. :-4-: While M.P.No.869/2019 was filed, the respondent had conceded having received Rs.95,000/-. Therefore, altogether the respondent received an amount of Rs.1,37,000/- and what remains to be payable by the petitioner is only Rs.40,000/-.

5. After hearing the learned counsel for the petitioner and respondent, I am of the opinion that

the outstanding balance of Rs.40,000/- shall be paid by the end of November, 2020. In the fitness of things, the court below is also to be directed to take up M.C.No.222/2019 for consideration and pass necessary orders after conducting inquiry in accordance with law. In the result, this original petition is

disposed         of      directing          the     Family      Court,
Irinjalakkuda,           to     consider          and    dispose      of
M.C.No.222/2019          within    a     period    of   three    months

from the date of receipt of a certified copy of :-5-: this judgment. There shall be a direction to the petitioner also to deposit the outstanding balance of Rs.40,000/- due as per M.P.No.869/2019, by the end of November, 2020. The distraint warrant issued against the petitioner shall remain in abeyance till the disposal of M.C.No.222/2019 or the end of November,2020 whichever event first occurs.

All pending interlocutory applications are closed. Sd/- T.V.ANILKUMAR JUDGE ami/ :-6-: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF ORDER DATED 11.12.2017 IN M.C.NO.217/2016 OF FAMILY COURT, IRINJALAKKUDA. EXHIBIT P2 TRUE COPY OF MC.NO.222/2019 FILED BY PETITIONER BEFORE THE FAMILY COURT, IRINJALAKKUDA. EXHIBIT P3 TRUE COPY OF MP.NO.869/2019 IN MC.NO.217/2016 FILED BY THE RESPONDENT. EXHIBIT P4 TRUE COPY OF OBJECTION DATED 07.01.2020 FILED BY THE PETITIONER IN MP.NO.869/2019. EXHIBIT P5 TRUE COPY OF DISTRESS WARRANT ISSUED ON 7.3.2020 BY FAMILY COURT, IRINJALAKKUDA. EXHIBIT P6 TRUE COPY OF COMMUNICATION DATED 28.5.2020 OF DISTRICT COLLECTOR, THRISSUR TO TAHASILDAR, CHALAKKUDY. RESPONDENT'S EXHIBITS: NIL

Same Court & Year Kerala · 2020 Same Parties DONY vs Diya Dony(Minor) Same Judge Honourable Mr.Justice T.V.Anilkumar