Jithamol Vs. State of Kerala

- code of civil procedure, 1908.[c.a. no. 5/1908]. order 9, rule 4: [v.k. bali, cj, kurian koseph & k. balakrishnan nair, jj] restoration of petition for enhancement of maintenance dismissed for default held, application under order 9, rule 4 c.p.c., is not maintainable. reason being while exercising powers under section 7(2)(a) and entertaining maintenance petition under section 125 of cr.p.c., family court cannot be deemed or treated as civil court. proceedings for maintenance before the family court under section &(2)(a) is criminal in nature. [kunhimohammammed v nafeesa, 2003 (1) klt 364; 2004 cri lj 1000 (ker) overruled]. reference to full bench; held, single judge cannot refer the case to full bench. he can refer the case to division bench. power to refer to full bench is expressly reserved to division bench. merely because a single judge/division bench entertains another view or merely because another view is possible, the judgment shall not be distinguished. k. balakrishnan nair, j.1. the petitioner is the wife of one mr. nikesh who died on 4.7.2001 while working as a police constable. she applied for appointment on compassionate grounds under the dying-in-harness scheme. her application has been returned to her by ext.p4 order dated 8.7.2002, on the ground that she did not forward the consent letter of other dependents for giving employment to her. she has been directed to get such a consent letter and forward the same along with the application.2. the appointment under the dying-in-harness scheme is governed by g.o.(p) no. 12/99/p&ard; dated 24.5.1999. clause14(c) of the said g.o. reads as follows:-'in the case of dependents other than widow/widower the consent of the widow/widower shall invariably be obtained.'it means if the widow or widower is the applicant, there is no question of any consent of others. therefore, the learned counsel for the petitioner submits that ext.p4 is plainly ultra vires and unauthorised.3. i heard the learned government pleader also. the contention of the learned counsel for the petitioner has to be accepted in the light of the provisions contained in the abovesaid government order. accordingly i quash ext. p4 and direct respondents 1 and 2 to pass final orders on the claim of the petitioner for appointment under the dying-in-harness scheme, without insisting for the consent letter of other legal heirs. the petitioner shall forward the application to the 3rd respondent along with the copy of this judgment. in that event the 3rd respondent shall forward the same to the 2nd respondent within two weeks thereafter. the competent authority shall pass appropriate orders on the claim of the petitioner as directed above within two months from, the date of receipt of the application through proper channel.the original petition is disposed of as above.