Remanded

K.N.Sreekumar v. Salma N.

Kerala HC8 Aug 2019OP(Crl.)/92/2019

Case brief

AI extract

What is this about?

This judgment dismisses a writ petition under Article 226 challenging an interim maintenance order. The High Court remitted the case back to the Family Court for fresh hearing, noting factual errors by the lower court and subsequent withdrawal of the daughter's claim.

What did the court decide?

The impugned order dated 19.12.2018 granting interim maintenance was set aside, and the matter was remitted to the Family Court for fresh consideration within four weeks.

K.N.Sreekumar Vs Salma N. — 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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THURSDAY, THE 08TH DAY OF AUGUST 2019/ 17TH SRAVANA, 1941

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OP(Crl.).No.92 OF 2019

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AGAINST THE ORDER/JUDGMENT IN MC 4/2018 OF FAMILY COURT, TRIVANDRUM

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PETITIONER/S:

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K.N.SREEKUMAR, AGED 48 YEARS S/O.LATE K.V.NARAYANAN NAMBOOTHIRI, NIDARSANA, T.C.16/269, EASWARAVILASAM ROAD, THYCAUD (P.O.), THIRUVANANTHAPURAM DISTRICT.

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BY ADVS. SRI.GOPAKUMAR R.THALIYAL SRI.RAHUL RAJ

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RESPONDENT/S:

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1 SALMA N., AGED 42 YEARS, D/O.SUKUMARAN NAMBOOTHIRI, NIDARSANA, T.C.16/269, EASWARAVILASAM ROAD, THYCAUD (P.O.), THIRUVANANTHAPURAM DISTRICT, PIN - 695 014.

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2 MALAVIKA NAMBOOTHIRI, AGED 22 YEARS, D/O.K.N.SREEKUMAR, NIDARSANA, T.C.16/269, EASWARAVILASAM ROAD, THYCAUD (P.O.), THIRUVANANTHAPURAM DISTRICT, PIN - 695 014.

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R1 BY ADV. SMT.V.H.JASMINE R1 BY ADV. SRI.JESWIN P.VARGHESE

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THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 08.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP(Crl.).No.92 OF 2019

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ALEXANDER THOMAS, J .

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O.P(Crl).No.92 Of 2019

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Dated this the 8^th day of August, 2019.

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J U D G M E N T

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The prayers in the Original Petition (Crl) filed under the

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enabling provisions in Article 227 of the Constitution of India are as follows:

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“i) to set aside Exhibit P9 order, as arbitrary, illegal, unreasonable and unjust.

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ii) to issue such other reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”

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Heard Sri.Gopakumar R.Thaliyal, learned counsel for

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the petitioner-husband and Smt.V.H.Jasmine, learned counsel for

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the 1^st respondent-wife. Though notice has been duly served on the 2^nd respondent, there is no appearance for that party.

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The case projected in this Original Petition is as follows:

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The petitioner is the respondent in Ext.P-1 M.C.No.4/2018 on the file of the Family Court, Thiruvananthapuram, filed by the respondents herein under Sec.125(1) of the Cr.P.C claiming maintenance from the petitioner at the rate of Rs.10,000/- per month to the 1^st respondent and Rs.15,000/- per month to the

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OP(Crl.).No.92 OF 2019

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2^nd respondent. In Ext.P-1 M.C, the respondents have filed Ext.P-3 Crl.M.P.No.295/2018 seeking interim maintenance at the rate of Rs.25,000/- per month for both the respondents. The petitioner filed Ext.P-4 objections to the said Crl.M.P stating that the 1^st respondent is employed and she is getting sufficient income for maintaining herself as can be seen from Exts.P-6 to P-8. That the petitioner has been regularly paying substantial amounts to the 2^nd respondent as can be seen from Ext.P-5. Along with Ext.P-4 objections, the petitioner has produced 13 documents to show that the petitioner has been looking after all the affairs of the respondents and there is no cause of action to file Ext.P-1 M.C as well as Exhibit P-3 Crl.M.P for interim maintenance. The court below on a perverse appreciation of the facts and circumstance of the case and without considering the evidence adduced by the petitioner has passed Ext.P-9 order dated 19.12.2018, granting interim maintenance at the rate of Rs.10,000/- each per month to the respondents from the date of petition till the disposal of the M.C. It is in the light of these averments and contentions that the instant Original Petition has been filed seeking the aforementioned prayers.

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OP(Crl.).No.92 OF 2019

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Now, it is submitted by both sides that the 2^nd respondent (daughter) has already withdrawn her claim for maintenance in Ext.P-1 M.C.No.4/2018 and that permission made in that regard by the 2^nd respondent as per Ext.P-10 for withdrawing her claim has already been allowed by Ext.P-11 proceedings. Now, the solitary claim is the one made on behalf of the 1^st respondent herein (wife) for grant of maintenance. Further from a reading of the impugned Ext.P-9 order granting interim maintenance, it is seen that many of the contentions now raised by the petitioner based on Exts.P-6 to P-8, etc., have not been duly taken note of. Since the 2^nd respondent herein has already withdrawn her claim, the direction given in Ext.P-9 with regard to the interim maintenance to be given to the 2^nd respondent is no longer tenable.

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After hearing both sides, this Court is of the view that the mater requires serious reconsideration and therefore it warrants a remit. For effectuating such a proper remit, it is ordered that Ext.P-9 order dated 19.12.2018 rendered by the Family Court, Thiruvananthapuram in Crl.M.P.No.294/2018 in M.C.No.4/2018 issued in the matter of grant of maintenance will

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OP(Crl.).No.92 OF 2019

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stand set aside and the matter in regard to the grant of maintenance claim made on behalf of the 1^st respondent will stand remitted to the Family Court. Accordingly, it is ordered that the Family Court, Thiruvananthapuram, will take up the matter in Crl.M.P.No.295/2018 in M.C.No.4/2018 for consideration afresh and after affording a reasonable opportunity of being heard to the counsel for the petitioner as well as the 1^st respondent herein, will pass orders thereon without much delay, preferably within a period of 4 weeks from the date of receipt of a certified copy of this judgment. The contentions raised by either side should be duly adverted to and dealt with by the Family Court by passing such orders afresh.

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With these observations and directions, the above Original Petition (Crl) will stand finally disposed of.

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Sd/ALEXANDER THOMAS, Judge.

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bkn/-

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OP(Crl.).No.92 OF 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF M.C.NO.4/2018 DATED 01/01/2018.

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EXHIBIT P2 TRUE COPY OF THE OBJECTION DATED 23/10/2018.

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EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT AND PETITION IN C.M.P.NO.295/2018 IN M.C.NO.4/2018 DATED 17/10/2018. EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED 07/11/2018. EXHIBIT P5 TRUE COPY OF THE ACCOUNTS STATEMENTS FROM OCTOBER 2017 TO OCTOBER 2018. EXHIBIT P6 TRUE COPY OF THE REPLY DATED 17/07/2018 ISSUED BY THE CENTRAL PUBLIC INFORMATION OFFICER, (ASSISTANT DIRECTOR), ALL INDIA RADIO, THIRUVANANTHAPURAM.

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EXHIBIT P7 TRUE COPY OF THE REPLY DATED 30/07/2018 ISSUED GIVEN BY THE CENTRAL PUBLIC INFORMATION OFFICER, DOORDARSHAN KENDRA, THIRUVANANTHAPURAM.

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EXHIBIT P8 TRUE COPY OF THE RENT DEED DATED 01/08/2017.

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EXHIBIT P9 TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT, THIRUVANANTHAPURAM DATED 19/12/2018 IN C.M.P.NO.295/2018 IN M.C.NO.4/2018.

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EXHIBIT P10 TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 19/02/2019.

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OP(Crl.).No.92 OF 2019

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EXHIBIT P11 TRUE COPY OF THE ORDER DATED 02.05.2019 PASSED BY THE FAMILY COURT, THIRUVANANTHAPURAM IN C.M.P NO.46/2019 IN M.C NO.4/2018. EXHIBIT P12 TRUE COPY OF C.M.P NO.33/2019 IN M.C NO.4/2018 DATED 21.02.2019 FILED BY THE 1ST RESPONDENT BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. EXHIBIT P13 TRUE COPY OF THE PROCEEDINGS OF THE FAMILY COURT, THIRUVANANTHAPURAM.

K.N.Sreekumar v. Salma N.

Case brief

What is this about?

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K.N.Sreekumar v. Salma N.

Case brief

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