Allowed

Shijith v. P.C.Nima

Kerala HC12 Nov 2018OP (FC)/446/2018

Case brief

AI extract

What is this about?

The High Court exercised supervisory jurisdiction under Article 227 to set aside a Family Court order granting interim maintenance without hearing the petitioner. It directed the lower court to dispose of the application afresh after providing both sides an opportunity of hearing within two weeks.

What did the court decide?

The Family Court order is set aside. The Court is directed to dispose of I.A. No.6141/2017 afresh within 2 weeks after hearing both sides.

Shijith Vs P.C.Nima — Matrimonial and Divorce | Kerala HC (2018)

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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 C.K.ABDUL REHIM

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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MONDAY ,THE 12TH DAY OF NOVEMBER 2018 / 21ST KARTHIKA, 1940

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OP (FC).No. 446 of 2018

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AGAINST THE ORDER DATED 16-04-2018 IN I.A. No.6141/2017 IN OP 1389/2017 of FAMILY COURT,THRISSUR

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PETITIONER/RESPONDENT:

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SHIJITH

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AGED 39 YEARS, S/O CHANDRAN, THERUPARAMBIL HOUSE, ERUMAPETTY PO, KARIYANNOOR DESOM AND VILLAGE, TALAPILLY TALUK, THRISSUR, PIN-680584.

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BY ADVS.

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SMT.GISA SUSAN THOMAS ASHA UNNITHAN R K SMT.G.ASHWINI

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RESPONDENT/PETITIONER:

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1 P.C.NIMA

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AGED 32 YEARS, D/O CHANDRAN, PANGIL HOUSE, KAIPARAMBU PO, KAIPARAMBU DESOM, KAIPARAMBU VILLAGE, THRISSUR TALUK AND DISTRICT, PIN-680541.

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2 MINOR AADINAD

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AGED 3 YEARS, REPRESENTED BY MOTHER GUARDIAN AND 1ST PETITIONER, P.C NIMA, D/O CHANDRAN, PANGIL HOUSE, KAIPARAMBU PO, KAIPARAMBU DESOM, KAIPARAMBU VILLAGE,THRISSUR TALUK AND DISTRICT, PIN-680541.

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3 MINOR ADITHI

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AGED 3 YEARS, REPRESENTED BY MOTHER GUARDIAN AND 1ST PETITIONER, P.C NIMA, D/O CHANDRAN, PANGIL HOUSE, KAIPARAMBU PO, KAIPARAMBU DESOM, KAIPARAMBU VILLAGE,THRISSUR TALUK AND DISTRICT, PIN-680541.

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BY ADV. SRI.M.PREMCHAND

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 12.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP (FC) No.446/2018

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C.K. ABDUL REHIM, J. & T.V. ANILKUMAR, J.

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O.P. (FC) No. 446 OF 2018

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DATED THIS THE 12^th DAY OF NOVEMBER, 2018

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J U D G M E N T

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Abdul Rehim, J:

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Invoking the supervisory jurisdiction vested on this court under Article 227 of the Constitution of India, the petitioner is challenging Ext.P5 order passed by the Family Court, Thrissur, in I.A. No.6141/2017, in O.P. No.1389/2017 dated 16-04-2018. O.P. No.1389/2017 was filed by the respondent herein against the petitioner and his parents, seeking return of gold ornaments, payment of past maintenance to each of the petitioners, payment of future maintenance to each of the petitioners and compensation etc. During pendency of the above original petition, the respondent filed I.A. No.6141/2017 seeking maintenance pendente lite and the litigation expenses, permissible under Section 24 of of the Hindu Marriage Act. Exhibit P5 is the order passed by the Family Court in the said application. In Ext.P5 the Family Court granted interim maintenance and litigation expenses to the respondents by holding that the petitioner had not filed any counter affidavit. It is challenging the said order, the above original petition is filed.

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OP (FC) No.446/2018

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Contention of the petitioner is that, Ext.P5 order was passed without affording opportunity to the petitioner to file counter to the interim application. It is also ontended that the copy of I.A. No.6141/2017 was not properly served on the petitioner. It is further argued that the court below had passed the order without hearing the contentions of the petitioner.

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The above aspects are disputed by learned counsel appearing for the respondents by stating that the impugned order was passed after hearing the counsel appearing for the petitioner.

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However, fact remains that I.A. No.6141/2017 was disposed of before the petitioner could file objections/counter. It is the contention of the petitioner that, while allowing the interim maintenance and litigation expense, the court below had not arrived at any conclusion with respect to the financial status of the parties. It is the specific contention of the petitioner that the 1^st respondent is employed and she is having sufficient means to meet the litigation expenses. Learned counsel for the petitioner submitted that, the petitioner had already filed objections to I.A. No.6141/2017 before the Family Court. Under such circumstances we think it only appropriate to direct the Family Court to consider such objections and to pass reasoned order in the above said

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OP (FC) No.446/2018

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interim applications, after affording opportunity of hearing to both sides.

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Hence the above original petition is hereby allowed. Exhibit P5 order passed by the Family Court in I.A. No.6141/2017 in O.P. No.1389/2017 is hereby set aside. The Family Court is directed to consider and dispose of I.A. No.6141/2017 afresh, taking into consideration of the objections if any filed by the respondent and after affording opportunity of hearing to both sides. The said application should be disposed of at the earliest possible, at any rate, within a period of 2 weeks from the date of production of a copy of this judgment.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

T.V.ANILKUMAR

JUDGE

AMG

OP (FC) No.446/2018

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT	P1 COPY OF THE O.P NO.1	389/2017 FILED BY THE RESPONDENTS
	BEFORE FAMILY COURT,	THRISSUR.

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EXHIBIT P2 COPY OF THE I.A NO.4510/2017 FILED BY THE 1ST RESPONDENT.

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EXHIBIT P3 COPY OF THE OBJECTION IN I.A NO./4510/2017 FILED BY THE PETITIONER.

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EXHIBIT P4 COPY OF THE PETITION I.A NO.6141/2017 FILED BY THE 1ST RESPONDENT.

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EXHIBIT P5 COPY OF THE ORDER DATED 16.4.2018 PASSED BY THE FAMILY COURT, THRISSUR IN I.A NO.6141/2017 IN O.P NO.1389/2017.

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RESPONDENTS' EXHIBITS

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NIL

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AMG

Shijith v. P.C.Nima

Case brief

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Shijith v. P.C.Nima

Case brief

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