Allowed

Sri Mathen Thomas Thoppil v. Smt Thresi Emmanuel Ramapuram

Karnataka HC21 Feb 2024WP/3657/2024

Case brief

AI extract

What is this about?

This High Court petition was filed under Article 227 to quash a Family Court order reducing the father's visitation rights and directing maintenance without reasons or an application. Holding the order unsustainable, the court quashed it, remanded the matter for reasoned orders, and directed parties to file affidavits of assets.

What did the court decide?

The impugned order dated 14.12.2023 reducing visitation rights and directing maintenance was set aside. The matter was remanded to the family court with instructions to pass reasoned orders upon filin

Sri Mathen Thomas Thoppil Vs Smt Thresi… — Child Custody and Guardianship | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:7425 WP No. 3657 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 21^ST DAY OF FEBRUARY, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 3657 OF 2024 (GM-FC)

¶7

BETWEEN:

¶8

SRI MATHEN THOMAS THOPPIL AGED ABOUT 47 YEARS S/O SRI THOMAS VARGHESE RESIDING A/T 902 NITESH FLUSHING MEADOWS APARTMENT WHITEFIELD, BANGALORE-560 067.

¶9

…PETITIONER

¶10

(BY SMT S SUSHEELA, SENIOR ADVOCATE FOR SRI. SOMANATHA H.,ADVOCATE)

¶11

AND:

¶12

Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA

¶13

SMT THRESI EMMANUEL RAMAPURAM AGED ABOUT 41 YEARS W/O SRI MATHEN THOMAS THOPPIL R.AT 802, SILVER TERRACE APARTMENT 167 (OLD NO 55), RICHMOND ROAD NEAR TRINITY CIRCLE, ASHOK NAGAR BANGALORE 560 025.

¶14

…RESPONDENT

¶15

(BY SRI PRABHJIT JAUHAR, ADVOCATE FOR SMT DEEPA J, ADVOCATE FOR C/R)

¶16

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA 1950, PRAYING TO QUASH THE COMMON IMPUGNED ORDER DTD 14.12.2023 AT ANNX-A RELATING TO THE REDUCTION OF VISITATION RIGHTS OF FATHER FROM 4 TIMES TO TWO SUNDAYS AND ALSO THE DIRECTION ISSUED TO PETITIONER/FATHER HEREIN TO

¶17

¶18

NC: 2024:KHC:7425 WP No. 3657 of 2024

¶19

PAY MONTHLY MAINTENANCE OF RS. 40,000/- PER MONTH TO THE RESPONDENT/ MOTHER AND CHILDREN PASSED IN G AND WC NO. 120/2023 BY THE IST ADDL. PRINCIPAL JUDGE FAMILY COURT AT BENGALURU AND ETC.

¶20

THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

¶21

ORDER

¶22

The petitioner is before this Court calling in question the order dated 14.12.2023, whereby, the concerned Court reduces the visitation rights of the petitioner/husband/father which was for four times on every Sundays to two times in a month on 1^st and 3^rd Sunday from 10:00 a.m. to 05:00 p.m.

¶23

Heard Smt. S.Susheela, learned Senior Counsel appearing for the petitioner and Sri. Prabhjit Jauhar, learned counsel appearing for respondent.

¶24

The facts in brief are as follows:

¶25

The petitioner is the husband and respondent is the wife. Two get married on 02.09.2006. It transpires that the relationship between the two flounders and on floundering of the relationship, it is alleged that the wife walks away with the children from the matrimonial house. Therefore the

¶26

¶27

NC: 2024:KHC:7425 WP No. 3657 of 2024

¶28

petitioner has filed an application before the concerned Court in G & W.C. No.120/2023 seeking custody of the children. In the said proceedings, the concerned Court passes an exparte interim order permitting visitation rights to the petitioner on four Sundays of the month between 10:00 a.m. to 05:00 a.m. The respondent - wife enters appearance, after the respondent entering appearance, an application is filed in I.A.No.VI seeking modification of the said order. Though, no order is expressly passed on the said application for modification, the order comes to be modified. The modification is altering the visitation from four times in a month between 10:00 a.m. to 05:00 p.m. to two times in a month i.e., 1^st and 3^rd Sunday between 10:00 a.m. to 05:00 p.m. Apart from so modifying the visitation rights of the father, the father is directed to pay maintenance at a sum of Rs.40,000/- per month, it is this order that has driven the petitioner to this Court, in the subject petition.

¶29

The learned senior counsel representing the petitioner would submit that the petitioner is paying a huge sums towards school fees and a sum of Rs.40,000/- that is

¶30

¶31

NC: 2024:KHC:7425 WP No. 3657 of 2024

¶32

directed to be paid as maintenance per month is without any basis, as it runs counter to the judgment of Hon'ble Apex Court which directs filing of affidavits before the consideration of grant of maintenance. The learned Senior Counsel further submits that the alteration of visitation rights by the concerned Court is without hearing the petitioner and is passed without considering the application so filed, either for grant of maintenance, or for alteration of maintenance. The learned Senior counsel would submit that the order is cryptic.

¶33

The learned counsel representing the respondent would though seek to refute the submissions, is not in a position to defend the order insofar as it is unreasoned. The learned counsel for the respondent would further submit that the petitioner/husband pays only half of the school fees and the remaining is paid by the maternal uncle of the children, and therefore, the claim of the husband is disputed. Be those submissions as they are.

¶34

The order that has driven the petitioner/father to this Court reads as follows:

¶35

¶36

NC: 2024:KHC:7425 WP No. 3657 of 2024

¶37

"R/c filed objections to main petitioner in 2 sets.

¶38

Heard respondent counsel on I.A.No.3 and 6.

¶39

Sri. S.H. Counsel filed NOC Vakalath to petitioner along with the I.A.No.7 U/s. 13 of Family Courts Act. Heard and same is allowed and Petitioner is permitted to engage the services of counsel.

¶40

The learned counsel for the petitioner filed an application under sec. 151 of CPC to extend interim order. Heard and interim order extended till next date of hearing.

¶41

Heard both the parties before the court and their counsel also present. Since the children are in the custody of the respondent/mother, when the exparte order passed by this court on 06.04.2023 is required to be modified as twice in a month instead of 4 times in a month preferably 1^st and 3^rd Sunday between 10.00 a.m. to 5.00 p.m.

¶42

The petitioner/father is hereby directed to pay monthly maintenance of the children as well as the respondent to

¶43

6 - NC: 2024:KHC:7425 WP No. 3657 of 2024

¶44

the extent of Rs.40,000/- and also to meet the educational expenses of the children till disposal of the application on merit.

¶45

Both the parties are hereby directed to comply the order.

¶46

To keep present the children on the next date by 25.01.2024."

¶47

The modification of visitation rights is ordered by

¶48

reducing it from four times to two times in a month on 1^st and 3^rd Sunday between 10:00 a.m. to 05:00 p.m,. what

¶49

was granted as an exparte order, reads as follows:

¶50

"The petitioner / father is entitled for visitation rights of his children between 10.00 a.m. to 5.00 p.m. on every Sunday till the I.A.No.4 is considered on merit.

¶51

The respondent/mother is hereby directed to provide visitation rights to the petitioner / father as per her convenience and also which is convenient to the petitioner.

¶52

Call on 17.04.2023."

¶53

Therefore, on what basis the aforesaid orders are

¶54

passed by the concerned Court is not discernible, as there are no reasons indicated, as to why the Court comes to

¶55

¶56

NC: 2024:KHC:7425 WP No. 3657 of 2024

¶57

conclusion for modification of the visitation rights notwithstanding the fact that it was an exparte order. The Court does not stop at that, the Court directs maintenance to be paid to wife and children to an extent of Rs.40,000/- to meet the educational expenses of the children till the disposal of the application on its merits. Therefore, it appears that the Court is passing an order again granting interim maintenance not on any application being filed by the wife. It is an admitted fact that the wife has not filed any application seeking any maintenance.

¶58

Therefore, the concerned Court will have to reconsider the entire issue with regard to grant of maintenance and grant of visitation rights to the husband afresh and pass appropriate orders in accordance with law, which would be in tune with what the Apex Court, in the case of Rajnesh Vs. Neha reported in 2021 (2) SCC 324 has held, directing the respective parties to file affidavits of assets and liabilities statement before any Court which is considering grant of maintenance from the hands of husband to the wife. Admittedly, no affidavit of asset and liabilities

¶59

8 - NC: 2024:KHC:7425 WP No. 3657 of 2024

¶60

are filed by the petitioner and the respondent in the case at hand. As a matter of fact, not even an application is filed by the wife seeking maintenance to herself or to the children as the case would be. This would run completely counter to what the Hon'ble Apex Court has directed in Rajnesh's case (supra) . The said judgment of Hon'ble Apex Court in the Rajnesh's case (supra) has been subsequently followed in the case of Aditi Vs. Jitesh Sharma reported in 2023

¶61

SCC online SC 1451. Therefore, in the light of the law laid down by the Hon'ble Apex Court, in the aforesaid judgments, the order impugned in the subject petition is on the face of it is unsustainable, the unsustainability would lead to its obliteration.

¶62

The learned counsel for the respondent submits that the impugned order was passed on 14.12.2023 and as on today, the husband has to pay maintenance for two months. The learned senior counsel would submit that a sum of Rs.40,000/- is already paid to the wife and another sum of Rs.40,000/- would be paid on or before 26.02.2024. This submission is placed on record.

¶63

¶64

NC: 2024:KHC:7425 WP No. 3657 of 2024

¶65

For the aforesaid reasons, the following:

¶66

ORDER

¶67

(i) The petition is allowed. The order dated 14.12.2023 passed in G& W.C. No.120/2023 by the I Additional Principal Judge, Family Court, Bengaluru is set aside.

¶68

(ii) The matter is remitted back to the hands of the concerned Court.

¶69

(iii) The respondent/wife is at liberty to file an application seeking maintenance and in the event such an application is comes about, the concerned Court shall direct the parties to file an affidavit of asset and liabilities of both the petitioner and respondent and then consider the same and pass necessary orders qua maintenance. The applications that are filed by the husband or wife with regard to grant of visitation rights or modification, shall be considered and reasoned orders to be passed either granting visitation rights or otherwise.

¶70

10 -

¶71

NC: 2024:KHC:7425 WP No. 3657 of 2024

¶72

(iv) Since both the counsels are represented before

¶73

the Court, they are directed to appear before the concerned Court on 29.02.2024 .

¶74

(v) If the wife is wanting to file an application seeking maintenance, the same shall be filed on the said date i.e., on 29.02.2024. The application pending for consideration of visitation rights shall also be taken up by the concerned Court on the said date.

¶75

(vi) The concerned Court shall permit four weeks time to file asset and liabilities statement of husband and wife and the Court shall endeavor to pass appropriate orders granting maintenance to the wife or otherwise, on the application that would be filed within four weeks thereafter. Since an application seeking visitation rights is already filed and pending the same, be considered without brooking any delay.

¶76

11 -

¶77

NC: 2024:KHC:7425 WP No. 3657 of 2024

¶78

(vii) In the light of the quashment of the order of visitation rights, in the interregnum, I permit the husband petitioner to exercise rights of visitation on every 2^nd and 4^th Sunday between 10:00 a.m. to 05:00 p.m., till the concerned Court would pass necessary orders.

¶79

Ordered accordingly.

¶80

Sd/JUDGE

¶81

HJ List No.: 1 Sl No.: 24

Sri Mathen Thomas Thoppil v. Smt Thresi Emmanuel Ramapuram

Case brief

What is this about?

What did the court decide?

Sri Mathen Thomas Thoppil v. Smt Thresi Emmanuel Ramapuram

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri B H Kemparaju Vs the Passport Officer

Sri.K.T Jayaramegowda Vs the Janatha Co. Operative Bank Ltd.

Sri Venkataramappa Vs State of Karnataka

Staff Merchants Credit Co. Op Society Ltd. Vs Sri Durga Prasad

Spoorthy Integrated Solutions (I) Private Ltd. Vs Kidwai Memorial Institute of Oncology (K M I O)

Damodar Bhandarkar B., Vs Commissioner of Police