Remanded

P.Joshi, v. Jayasree

Kerala HC23 Sept 2019Crl.Rev.Pet/191/2019

Case brief

AI extract

What is this about?

The High Court remitted a Maintenance Case to the Magistrate for a fresh disposal after the petitioner was ex-parte due to illness, while directing immediate payment of interim maintenance to minor children and stipulating that non-compliance would restore the original eviction/maintenance order.

What did the court decide?

Remit the M.C. for fresh disposal within 4 months subject to conditions: immediate deposit of arrears and future interim maintenance to minor children, otherwise the original order is restored.

P.Joshi, Vs Jayasree — Maintenance and Alimony | Kerala HC (2019)

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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 ALEXANDER THOMAS

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MONDAY, THE 23RD DAY OF SEPTEMBER 2019 / 1ST ASWINA, 1941

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Crl.Rev.Pet.No.191 OF 2019

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AGAINST THE ORDER/JUDGMENT IN CRA 187/2018 DATED 14-01-2019 OF DISTRICT & SESSIONS COURT, ALAPPUZHA

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AGAINST THE ORDER/JUDGMENT IN MC 59/2012 DATED 25-03-2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALAPPUZHA

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REVISION PETITIONER/S:

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P.JOSHI, AGED 51 YEARS, S/O PURUSHOTTAMAN, RESIDING AT KALATHIL PARAMBIL,KADAKKARAPPALLY, CHERTHALA PO, ALAPUZHA - 688 529.

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BY ADVS.

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SRI.P.SANKARANKUTTY NAIR SRI.SHANKAR V.

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RESPONDENT/S:

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1 JAYASREE, W/O JOSHI, RESIDING AT KATTUVELIYIL HOUSE, PATTANAKAD PO, CHERTHALA, ALAPUZHA DISTRICT - 688 531.

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2 ANANTHAKRISHNAN(MINOR), S/O JOSHI, REPRESENTED BY JAYASREE (MOTHER), RESIDING AT KATTUVELIYIL HOUSE, PATTANAKAD PO, CHERTHALA, ALAPUZHA DISTRICT - 688 531.

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3 LAKSHMI, D/O JOSHI, REPRESENTED BY JAYASREE (MOTHER) RESIDING AT KATTUVELIYIL HOUSE, PATTANAKAD PO, CHERTHALA, ALAPUZHA DISTRICT - 688 531.

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4 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, KOCHI - 688 531.

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R1-3 BY ADV. SMT.G.VIDYA

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OTHER PRESENT:

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SRI.T.R.RENJITH, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No.191 OF 2019

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ALEXANDER THOMAS, J . ----------------------------Crl.R.P.No.191 Of 2019

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Dated this the 23^rd day of September, 2019.

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O R D E R

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The petitioner herein (husband) has filed the instant Criminal Revision Petition seeking to challenge the impugned order dated 25.3.2017 rendered by the Judicial First Class Magistrate Court-I, Alappuzha, in M.C.No.59/2012 filed under the provisions of the Protection of Women from Domestic Violence Act, as modified by the impugned appellant judgment dated 14.1.2019 rendered by the Sessions Court, Alappuzha, in Crl.A.No.187/2018. The petitioner herein is the husband of the 1^st respondent herein and respondents 2 & 3 herein are the minor son, now aged 17 years, and minor daughter aged 13 years respectively of the petitioner born in the wedlock with the 1^st respondent. The respondents 1 to 3 have filed M.C.No.59/2012 under the provisions of the DV Act in which the petitioner who was the respondent therein was set ex-parte and the learned Magistrate has issued the following directions:

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“4. In the result, MC is allowed as follows:1. The counter petitioners are restrained from committing any act of domestic violence against the petitioners and also from

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Crl.Rev.Pet.No.191 OF 2019

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contacting the petitioners by any means, whatsoever.

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2. The counter petitioners are restrained from vising the work place of the 1^st petitioner or to contact her there in any manner whatsoever.

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3. 1^st counter petitioner is directed to pay an amount of Rs.6,000/each to the 2^nd and 3^rd petitioners. The 1^st petitioner is entitled to receive the said amount from the 1^st counter petitioner for and on behalf of the 2^nd and 3^rd petitioners.

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4. 1^st counter petitioner is directed to return 30 sovereigns of gold ornaments to the 1^st petitioner or to give the market value of the said gold ornaments on the date of said payment.

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5. The first counter petitioner is also directed to pay an amount of Rs.2,00,000/- (Rupees two lakhs only) as compensation to the 1^st petitioner.”

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Aggrieved thereby the petitioner has filed

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Crl.A.No.187/2018 before the Sessions Court, Alappuzha, in which

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the Sessions Court has issued the following directions:

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“1. The counter petitioners in the MC are restrained from committing any act of domestic violence against the petitioners, from contacting the petitioners by any means and from obstructing the first petitioner in her work place or residence in any manner, till the disposal of the MC by the court below.

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2. The first counter petitioner shall pay Rs.5,000/- (Rupees Five thousand) each per month to petitioners 2 and 3, from the date of the petition, till the MC is finally disposed of by the court below.

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It is ordered that, the first counter petitioner/appellant herein shall pay or deposit the entire arrears of maintenance @ Rs.5,000/- each (total Rs.10,000/-) per month to petitioners 2 and 3, from the date of the petition, till 31.12.2018 before the court below, within 10 days from date of his appearance, before the court below.

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It is ordered that, if the interim maintenance ordered as above, is not paid as directed, the MC will stand disposed of in terms of the order of the learned Magistrate dated 25.03.2017, as the order will revive on failure to pay the interim maintenance ordered hereby. It is made clear that any payment already made towards maintenance, shall be adjusted from the total due.”

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It is seen that according to the petitioner he was not in

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a position to appear before the learned Magistrate to contest the

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case on merits as he had met with an accident and has suffered

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Crl.Rev.Pet.No.191 OF 2019

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serious injuries and disabilities. After hearing both sides, this Court is of the considered view that effective direction to ensure that the petitioner should get an opportunity to contest his case on merits and the M.C should be remitted, so as to dispose the same afresh, within a period of 4 months from the date of receipt of a certified copy of this order. But, the abovesaid remit will be subject to the following conditions:

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(i) The petitioner will pay interim maintenance to the 2^nd respondent herein @ Rs.3,500/- per month from the date of petition onwards and he should also pay interim maintenance to the 3^rd respondent herein @ Rs.3,500/- from the date of petition. The entire arrears in that regard for the period from the date of petition up to 31.10.2019 should be deposited by the petitioner before the learned Magistrate within a period of 2 months from today as last chance.

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(ii) The parties will report before the learned Magistrate immediately after the expiry of two months and the petitioner should convince the learned Magistrate that he has complied with the abovesaid directions and he has deposited the abovesaid amount. On deposit of the abovesaid amounts, the learned Magistrate will release the said amounts to respondents 2 & 3 through the 1^st respondent, who is the mother.

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(iii) The petitioner should also deposit interim maintenance to respondents 2 & 3 at the abovesaid rates for the subsequent periods from November, 2019 onwards by the 10^th of every month , which the court below will release to the respondents 2 & 3 through their mother.

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(iv) If the petitioner can convince the learned Magistrate that he has complied with the directions and has deposited the arrears of interim maintenance for the period up to 31.10.2019 within the aforesaid time

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Crl.Rev.Pet.No.191 OF 2019

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limit of two months, then the learned Magistrate may consider and pass appropriate orders on the M.C without much delay, preferably within a period of 3-4 months. In that eventuality both sides should be given an opportunity to adduce evidence and then the learned Magistrate may consider the merits of the matter after affording a reasonable opportunity of being heard to both sides. If on the other hand, the petitioner does not comply with the abovesaid directions to pay the interim maintenance for the abovesaid periods and to pay the arrears of interim maintenance to respondents 2 & 3 for the period up to 31.10.2019, then the impugned order dated 25.3.2017 rendered by the Judicial First Class Magistrate Court-I, Alappuzha, in M.C.No.59/2012 will stand restored and the respondents will be at liberty to seek execution of the impugned order.

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With these observations and directions, the above Crl.R.P

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will stand finally disposed of.

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Sd/ALEXANDER THOMAS, Judge.

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bkn/-

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Crl.Rev.Pet.No.191 OF 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF THE DISCHARGE SUMMARY FROM LISIE HOSPITAL ERNAKULAM.

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ANNEXURE A2 TRUE COPY OF THE PROCEEDINGS IN CMP NO.2328 OF 2017 FROM 30.5.2017 TO 22.9.2018.

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ANNEXURE A3 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE DELAY CON DONATION PETITION IN CRIMINAL APPEAL NO.187 OF 2018.

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ANNEXURE A4 TRUE COPY OF THE JUDGMENT IN O.P.(CRL) NO.527 OF 2018 DATED 2.11.2018.

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ANNEXURE A5 TRUE COPY OF THE MEDICAL BOARD CERTIFICATE ISSUED BY THE GOVERNMENT TD MEDICAL COLLEGE HOSPITAL ALAPUZHA DATED 26.5.2016.

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ANNEXURE A6 TRUE COPY OF THE PAY BILL REGISTER OF THE PETITIONER.

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ANNEXURE A7 TRUE COPY OF THE SALARY BILL OBTAINED UNDER THE RTI ACT SHOWING THE SALARY OF THE 1ST RESPONDENT.

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ANNEXURE A8 TRUE COPY OF THE ADDITIONAL AFFIDAVIT FILED IN SUPPORT OF THE DELAY CONDONATION PETITION.

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ANNEXURE A9 TRUE COPY OF THE PETITION TO ACCEPT THE ADDITIONAL AFFIDAVIT.

P.Joshi, v. Jayasree

Case brief

What is this about?

What did the court decide?

P.Joshi, v. Jayasree

Case brief

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What did the court decide?

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