Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 16TH DAY OF DECEMBER 2020 / 25TH AGRAHAYANA, 1942 OP(Crl.).No.312 OF 2020 MC 37/2019 DATED 17-01-2020 OF FAMILY COURT, PALA PETITIONER/RESPONDENT: BENNY JOHN AGED 61 YEARS S/O. YOHANNAN, VADAKKETHIL HOUSE, PUTHIYAKAVU P.O. MAVELIKKARA VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT 690 101. BY ADV. SMT.GISA SUSAN THOMAS RESPONDENT/PETITIONER: MADONNA THOMAS AGED 57 YEARS D/O. MERCY THOMAS, MYLATTU HOUSE, KARIKKATTOOR P.O. MANIMALA VILLAGE, KANJIRAPPALLY TLAUK, KOTTAYAM DISTRICT 686 544. THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 16.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS, J.
------------------------------------ O.P Crl. No. 312 of 2020 ------------------------------------ Dated this the 16th day of December, 2020
JUDGMENT
The prayers in the afore captioned O.P (Crl) filed under Sec.227 of the Constitution of India are as follows: “(i) To set aside the order date 17-01-2020 in M.P.No.88/2019 in M.C No.37/2019 passed by the Family Court, Pala.
(ii) That the petitioner be granted such other relief’s that are appropriate and incidental to this Original Petition (Criminal).”
2. Heard Smt.Gisa Susan Thomas, learned counsel appearing for the petitioner. Though notice has been duly served on the respondent, there is no appearance for that party.
3. The petitioner had earlier married a lady, who had died.
Thereafter the petitioner has married the respondent herein. The marital relationship between the petitioner and the respondent has been dissolved as per Ext.P4 judgment and decree dated 31-01-2017 rendered by the Family Court, Pala in O.P (Div) No.95/2015. Thereafter, the respondent has filed Mat. Appeal No.355/2017 before this Court to impugn Ext.P4 judgment of the Family Court granting
divorce, in which the Division Bench of this Court has stayed the operation and enforcement of Ext.P4 judgment and decree.
4. Thereafter, it appears that the respondent has filed I.A
No.568/2017 in the abovesaid Ext.P4 O.P (Div) No.95/2015 before the Family Court, Pala seeking for permanent alimony. The said Family Court, Pala has passed order dated 31-01-2017 on I.A No.568/2017 in O.P (Div)No.95/2015, whereby the petitioner herein has been directed to furnish a fixed deposit of Rs.3 Lakhs in the name of the respondent herein and pay Rs.2,000/- per month as maintenance to the respondent herein with effect from January,
2017. It appears that the petitioner herein has furnished fixed
deposit receipt dated 21-03-2017, for the said amount of Rs.3 Lakhs and further according to the petitioner he has been paying maintenance @ Rs.2,000/- per month to the respondent herein as ordered by the Family court in the abovesaid I.A and it appears that thereafter the Division Bench of this Court has ordered stay of the
judgment dated 31-01-2017 in O.P (Div) No.95/2015 on the file of the
Family Court. Thereafter, it appears that the respondent herein has filed Ext.P5 M.C No.41/2014 under the provisions of the D.V Act before the Judicial First Class Magistrate Court-II, Kanjirappally, in which the learned Magistrate has ordered that the petitioner herein should pay interim maintenance @ Rs.2,500/- per month.
5. According to the petitioner, he has thereafter paid interim
maintenance @ Rs.2,500/- per month to the respondent herein. Later, the JFCM-II, Kanjirappally has dismissed M.C No.41/2014 as per Ext.P5 final order dated 25-01-2019 on the ground that the respondent herein is not entitled to claim maintenance against the petitioner herein. Point No.5 decided in Ext.P5 is as follows and the said aspect is dealt within para No.12 of Ext.P5 order, which reads as follows:
12. Point No.5:- The petitioner claimed a maintenance of
Rs.13,000/- as monthly maintenance. As per Ext.D2 the Hon’ble Family Court, Pala has directed the respondent to execute a fixed deposit of Rs.3,00,000/-- in the name of the petitioner and to pay Rs.2,000/- per month as maintenance to the petitioner with effect from January, 2017. As per Ext.D3, the respondent has complied with the order of Hon’ble Family Court, Pala. So the petitioner is having favourable order as regards her monthly maintenance. Hence, I am not inclined to allow this prayer, Hence this point if found against the petitioner.
6. It appears that thereafter the respondent herein has filed M.C No.37/2019 before the Family Court, Pala under Sec.125(1) of the Cr.PC again claiming maintenance from the petitioner @
Rs.15,000/- per month. The petitioner would point out that without granting sufficient reasonable opportunity to the counsel for the petitioner herein, Family Court has passed impugned Ext.P1 interim
order dated 17-01-2020 on M.P No.88/2019 in M.C No.37/2019
directing that the petitioner herein should pay monthly interim maintenance @ Rs.4,000/- per month to the respondent herein. Exhibit.P1 order reads as follows: “Heard. Petitioner is awarded a sum of Rs.4,000/- as monthly interim maintenance from the date of the petition. For counter.”
7. The petitioner would urge that Ext.P1 is liable for
interdiction on various grounds. The first ground is that Ext.P1 has been rendered without stating any reasons and without affording reasonable opportunity to the petitioner herein to file counter affidavit or objections in the matter. The second ground is that, the respondent herein has fully suppressed about the order dated 31-01- 2017 rendered by the very same Family Court on I.A No.568/2017 in O.P(Div) No.95/2015, about which reference is also made in para No.12 of the Ext.P5 judgment. Further that the respondent herein has also suppressed about Ext.P5 proceedings and order of the
learned Magistrate in the maintenance claim under the D.V Act.
8. Without getting into the merits of the controversy in any
manner it is seen that, Ext.P1 is vitiated for the simple reason that no reasons are shown therein. Secondly, the petitioner has not been given reasonable opportunity to file his written submissions in the matter and therefore Ext.P1 is liable for interdiction on that ground also. In that view of the matter, the impugned Ext.P1 order will stand set aside and quashed and the matter in M.P No.88/2019 in M.C No.37/2019 will stand remitted to Family Court, Pala for consideration and decision afresh. The petitioner is given time to 25-01-2021 to file written objections or counter affidavit to the said M.P No.88/2019 in M.C No.37/2019 before the Family Court, Pala. Thereafter, the Family Court, Pala will afford reasonable opportunity of being heard to both sides and then will also examine the impact of the order dated 31-01-2017 rendered on I.A No.568/2017 in O.P (Div) No.95/2015 and about the compliance thereof by the petitioner and also the impact of Ext.P5 order dated 25-01-2019 on M.C No.41/2014 rendered by JFCM-II, Kanjirappally in proceedings under the D.V Act. It may also be ascertained as to whether the respondent herein
has suppressed about the issuance of the said order dated 31-01-2017 on I.A No.568/2017 in O.P (Div).No. 95/2015 and also about Ext.P5 order, etc. Fresh orders on M.P No.88/2019 in M.C No.37/2019 may be rendered after hearing both sides, without any further delay. The
guidelines and norms issued by the Apex Court in the case in
Rajnesh v. Neha and another [(2020) 6 KHC 1 (SC)] should also duly adverted to and considered by the Family Court before rendering orders on the abovesaid matters.
9. The Registry will forward a copy of this order to the Family Court, Pala, who is dealing with M.C No.37/2019 for necessary information, at the cost of the petitioner.
With these observations and directions, the above Original Petition (Criminal) will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE KAS APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF THE ORDER DATED 17/01/2020 IN M.P. NO. 88/2019 IN M.C. NO. 37/2019 ON THE FILE OF FAMILY COURT PALA. EXHIBIT P2 COPY OF THE MAINTENANCE CASE NO. EXHIBIT P3 COPY OF THE M.P. NO. 88/2019 IN M.C. NO. 37/2019 FILED BEFORE FAMILY COURT PALA. EXHIBIT P4 COPY OF THE JUDGMENT DATED 31/01/2017 IN O.P. (DIV) NO. 95/2015 PASSED BY THE FAMILY COURT PALA. EXHIBIT P5 COPY OF THE ORDER DATED 25/01/2019 IN M.C. NO. 41/2014 PASSED BY TH JUDICIAL FIRST CLASS MAGISTRATE COURT, KANJIRAPPALLY. RESPONDENT'S/S EXHIBITS: NIL