Remanded

Suma.P.Mallan v. Sreekanth S.Mallia

Kerala HC18 Feb 2013OP (FC)/639/2013

Case brief

AI extract

What is this about?

The High Court of Kerala held that the Family Court improperly dismissed the petitioner's application to strike off a written statement and must reconsider the maintenance application (I.A.3183/2004). The High Court remitted these matters to the Family Court for fresh decision after marking documents and conducting an enquiry into the petitioner's employment timeline.

What did the court decide?

The extent of Ext.P8 dealing with striking off defence and dismissing I.A.3183/2004 are set aside. The applications are remitted to the Family Court for a fresh decision with new directions for markin

Suma.P.Mallan Vs Sreekanth S.Mallia — Maintenance and Alimony | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE

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THE HON'BLE MR. JUSTICE P.D.RAJAN

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MONDAY, THE 18TH DAY OF FEBRUARY 2013/29TH MAGHA 1934

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OP (FC).No. 639 of 2013 (R)

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AGAINST THE ORDER/JUDGMENT IN OP.82/2004 of FAMILY COURT,ERNAKULAM

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PETITIONER(S):

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SUMA.P.MALLAN AGED 38 YEARS D/O. SRI.PADMANABHA MALLAN PERMANENTLY RESIDING AT PRANATH HOUSE, SRINGAPURAM KODUNGALLUR-680664.

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BY ADVS.SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.N.K.SUBRAMANIAN SMT.B.BINDU

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RESPONDENT(S):

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SREEKANTH S.MALLIA

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S/O.SRI.V.S.MALLIA, PERMANENTLY RESIDING AT PALACKAL 8/1121, DOCTOR PADIYAR'S COMPOUND, SOUTH CHERLAI COCHIN-682002.

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 18-022013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PIUS.C.KURIAKOSE & P.D.RAJAN,JJ.

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O.P.(F.C) No.639 of 2013

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--------------------------------------------Dated 18^th February, 2013

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JUDGMENT

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Pius.C.Kuriakose,J.

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Under challenge in the original petition filed under

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Article 227 of the Constitution by the petitioner who is the wife of the respondent is Ext.P8 order. Under Ext.P8 order the Family Court has condoned the delay caused by the respondent in the matter of filing application for reviewing order for interim maintenance; the Family Court has allowed the application for

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review and set aside the order for interim maintenance at the rate of Rs.2,000/- per mensum and also an order for payment of Rs.3,000/- by the husband as litigation expenses. Under

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Ext.P8, the learned Family Court dismissed the application filed by the petitioner for striking off the defence of the respondent for

O.P.(FC) 639/13

various reasons.

Sri.P.Gopakumaran Nair, learned counsel appearing for the

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petitioner and those of Mr.Shiju Varghese, leaned counsel for the respondent.

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We have carefully read through Ext.P8. Having

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regard to the submissions addressed at the Bar, we are of the

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view that the decision in Ext.P8 to condone the delay of 171

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days in the matter of filing of the review petition by the respondent is sustainable. We approve that decision. The questions which now survive is whether the order to review the

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order for payment of interim maintenance and litigation expenses is sustainable. Other issue is whether the decision dismissing the application for striking off the defence is sustainable.

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We shall first deal with the order to dismiss the

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O.P.(FC) 639/13

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application for striking off. We find that the decision to dismiss the application to strike off the defence has been taken by the Family Court, mainly on the reason that the respondent had already withdrawn the pleadings in O.P.82/2004. According to the learned Family Court, the respondent has already withdrawn the pleadings in O.P.82/2004 and there are no pleadings in that case to be struck off. We notice that in the above O.P petitioner had filed counter claim seeking a decree for restitution of conjugal rights. To that counter claim the respondent had filed a written statement resisting the counter claim. According to us, as respondent's written statement to the counter claim filed by the petitioner is a pleading, which continue to be on record, the Family Court ought to have considered petitioner's prayer to strike off that pleading. We therefore unable to sustain the decision of the Family Court to dismiss the application filed by the petitioner for striking off the pleadings.

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O.P.(FC) 639/13

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Coming to the sustainability of the order

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reviewing the earlier decision to pay maintenance and litigation

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expenses, we find that the petitioner filed application I.A.3183/2004 claiming interim maintenance and litigation expenses. This application is filed in 2004 projecting herself to be an unemployed person totally incapable for maintaining herself.

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It appears that above I.A remained unattended for years and order was passed only in 2010. In the above I.A the respondent would cause production of various documents which clearly indicated that the petitioner had become employed in 2010. It is stated in the order that acquisition of employment by the petitioner was suppressed by her and the learned Family Court set aside the order earlier passed in I.A.3183/2004. While we can agree with the Family Court in its view that a lady who is gainfully employed may not be entitled for maintenance, we are unable to sustain the order in Ext.P8 dismissing I.A.3183/2004

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O.P.(FC) 639/13

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completely. We also notice in this connection that various documents which were got produced by the respondent have not been marked for the purposes of passing Ext.P8. The learned Family Court has to do that first. Thereafter also an enquiry has to be conducted by the Family Court as to when exactly the petitioner secured employment. If it is revealed that the petitioner secured employment only much after the institution of I.A.3183/2004, then there may be justification for paying interim maintenance and litigation expenses to the petitioner at least during that period when she remained unemployed. In other words, we are of the view that I.A.3183/2004 is to be reconsidered by the Family Court. The result of the discussions in this case is as follows.

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Ext.P8 to the extent it deals with petitioner's application for striking off the defence and to the extent it dismisses I.A.3183/2004 are set aside. Application for striking

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O.P.(FC) 639/13

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off the defence and I.A.3183/2004 are remitted back to the

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Family Court, Ernakulam. The Family Court is directed to take fresh decision on both I.As keeping in mind the observations made in this judgment. The parties shall enter appearance

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before the Family Court, Ernakulam on 28/2/2013. The learned Family Court will expedite the matter and pass revised orders

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pursuant to this judgment as early as possible, at any rate, within three weeks thereafter.

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(PIUS.C.KURIAKOSE) JUDGE.

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(P.D.RAJAN) JUDGE.

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uj.

Suma.P.Mallan v. Sreekanth S.Mallia

Case brief

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Suma.P.Mallan v. Sreekanth S.Mallia

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