Revising the dismissal of C.M.Ps by the Family Court for default despite representation by a substitute advocate. The High Court set aside the orders as violative of natural justice and remanded the matters for fresh consideration.
Set aside orders A8 to A10 dismissing C.M.Ps A5 to A7 and remitted matters to Family Court for hearing on 27.11.2019.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 01ST DAY OF NOVEMBER 2019 / 10TH KARTHIKA, 1941
RPFC.No.345 OF 2019
AGAINST THE ORDER/JUDGMENT IN MC 101/2008 OF FAMILY COURT, MAVELIKKARA
REVISION PETITIONER/S:
1 NEETHU KRISHNAN, AGED 30 YEARS D/O. KRISHNAN CHETTIAR, VRINDAVAN HOUSE, VETTUVENI, HARIPAD P.O., KARUVATTA VILLAGE, ALAPPUZHA 690 514
2 GAYATHRI.N. @ SIJISHA, AGED 12 YEARS (MINOR), D/O. SUNILKUMAR, VRINDAVAN HOUSE, VETTUVENI, HARIPAD P.O., KARUVATTA VILLAGE, ALAPPUZHA 690 514.
BY ADV. SMT.VILASINI NAYAK
RESPONDENT/S:
1 SUNILKUMAR, AGED 42 YEARS, S/O. NATARAJAN, VALIYAVEETTIL PADINJATTETTHIL, THEKKEVILA CHERIYIL, ERAVIPURAM, MUNDAKKAL VILLAGE, QUILON 691 011
2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.JOHN K.GEORGE R1 BY ADV. SRI.M.A.PRABHU
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 01.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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ALEXANDER THOMAS, J .
R.P(FC).No.345 Of 2019
Dated this the 1st day of November, 2019.
O R D E R
The prayers in the above Revision Petition (FC) filed under
Sec.19(4) of the Family Courts Act, 1984, are as follows:
2. set aside the orders in Crl.M.Ps.No.78/18, 77/18 and 114/18 in CMP.No.53/15 in M.C.No.101/2008 of the Family Court, Mavelikkara dated 03.09.2018 and remand the same.
3. pass any other judgment/order/direction deemed fit and proper by this Hon'ble Court in the circumstances of the case.”
petitioners, Sri.John K.George, learned counsel appearing for the 1st respondent and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the 2nd respondent-State of Kerala.
The revision petitioners herein, who are the wife and daughter of the respondent herein were earlier allowed maintenance @ Rs.2,000/- per month and Rs.1,000/- per month respectively as per Anx-A2 order dated 7.8.2009 rendered in
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M.C.No.101/2008 filed by those claimants. The marriage between the abovesaid spouses have been dissolved by ex-parte decree dated 29.11.2011 rendered by the Family Court in O.P(HMA).No.464/2010. Thereafter, the 1st revision petitioner herein has remarried on 30.6.2017. R-1 herein also has remarried. Anx-A3 C.M.P.No.53/2015 in M.C.No.101/2008 was filed by the revision petitioners herein seeking enhancement of the maintenance amount from Rs.2,000/- per month to Rs.10,000/per month and from Rs.1,000/- per month to Rs.15,000/- per month respectively. The said Anx-A3 C.M.P.No.53/2015 filed on 9.2.2015 was later dismissed for default by the impugned Anx-A4 order dated 20.5.2015.
It is the case of the revision petitioners that after the remarriage of the 1st petitioner on 30.6.2017, the 1st respondent herein had stopped payment of maintenance to the 2nd respondent herein also. Further that the 1st petitioner came to know the dismissal of C.M.P.No.53/2015 during the consideration of yet another matrimonial disputes between the parties as O.P(G&W).No.1261/2017 filed by the 1st respondent herein before the Family Court, Mavelikkara, for custody of the daughter-2nd petitioner herein (minor daughter). Further that Anxs-A5 & A-6
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C.M.Ps were then filed by the revision petitioners seeking for delay condonation in filing restoration application and for restoring the matter which was dismissed for default and Anxs-A5 & A6 C.M.Ps are stated to have filed on 28.4.2018. Thereafter, Anx-A7 C.M.P has also been filed by the revision petitioners seeking amendment/corrections has been filed later. When those Anxs-A5 to A7 C.M.Ps were taken up for consideration before the Family Court, the 1st respondent herein on 3.7.2018 prayed for filing objections to those CMPs.
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“ORDER Petitioner absent. No representation. Hence Crl MP is dismissed.”
“ORDER Petitioner absent. No representation. Hence Crl MP No.78/2018 is dismissed.”
“ORDER Petitioner absent. Hence CMP is dismissed.”
It is pointed out that the 2nd revision petitioner (minor daughter) is now aged 13 years and studying in Standard VII and she attends classes for guitar, drawing, music, etc., and Rs.5,000/- per month is required for educational and extra curricular activities alone including bus fare. Further that the 1st respondent herein is a Second-in-Command, CRPF with monthly income of Rs.2.5 lakhs. It is thus urged by the learned counsel for the petitioners that the impugned dismissal orders as per Anxs-A8 to A10 in relation to the dismissal of Anxs-A5 to A7 CMPs are illegal and improper and that the said orders have been passed on the premise as if there was no representation on that day, even though there was representation before the Family Court on behalf of the learned Advocate holding vakalath for the revision petitioners about the inconvenience of the Advocate on record and for posting the case along with custody matter which was already posted to a future date. It is pointed out that all the Family Court should have done in fairness was to
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adjourn those CMPs to the day on which the custody application was to be taken up.
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such needs of the Bar. When the matter was taken up for consideration on 3.9.2018, the case in relation to custody litigation stood posted on a future day and without causing inconvenience to the other side, the Family Court could have fairly accommodated the reasonable plea made on behalf of the counsel for the petitioners to adjourn those matters as per Anxs-A5 to A7 CMPs on the day on which the custody matter was posted. It is also a matter of knowledge that senior members of the Bar also now find it extremely difficult to have services of junior lawyers and it may be quite difficult for them to manage their work especially when they are ill and these matters should have been reasonably accommodated by the court below instead of driving the parties concerned to this Court. In that view of the matter, this Court is constrained to take the view that the impugned dismissal orders as per Anxs-A8 to A10 dated 3.9.2018 dismissing Anxs-A5 to A7 CMPs is illegal and improper as it is in violation of the principles of natural justice. On that ground alone, the impugned Anxs-A8 to A10 orders will stand set aside and the matters in Anxs-A5 to A7 CMPs in M.C.No.101/2008 will stand remitted to the Family Court, Mavelikkara, for consideration afresh. It is ordered that the parties through their learned Advocates shall appear before the
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Family Court in relation tot he matters in Anx-A5 to A7 CMPs on 27.11.2019 whereupon the matter may be proceeded in accordance with law.
The Registry will forward a copy of this order to the Family Court, Mavelikkara, who is dealing with M.C.No.101/2008, for necessary information and further action.
With these observations and directions, the above R.P(FC) will stand disposed of.
Sd/ALEXANDER THOMAS, Judge.
bkn/-
PETITIONER'S/S EXHIBITS:
APPENDIX
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| RPFC.No.345 OF 2019 | |
|---|---|
| ANNEXURE A1 | CERTIFIED COPY OF THE PETITION IN MC. 101/2008 |
| ANNEXURE A2 | CERTIFIED COPY OF THE ORDER DT. 7.8.2009 IN MC 101/2008 |
| ANNEXURE A3 | CERTIFIED COPY OF THE CMP 53/2015 IN MC. 101/2008 |
| ANNEXURE A4 | CERTIFIED COPY OF THE ORDER DATED 20.5.2015 CMP 53/2015 IN MC. 101/2008 |
| ANNEXURE A5 | CERTIFIED COPY OF THE CRL.MP.NO. 77/2018 IN CMP 53/2015 IN MC. 101/2008 |
| ANNEXURE A6 | CERTIFIED COPY OF THE CRL. MP NO. 78/2018 IN CMP 53/2015 IN MC. 101/2008 |
| ANNEXURE A7 | COPY OF THE CRL.MP NO. 114/2018 IN CMP 53/2015 IN MC . 101/2008 |
| ANNEXURE A8 | CERTIFIED COPY OF THE ORDER DT. 3.8.2018 IN CRL. MP. NO. 77/2018 IN CMP 53/2015 IN MC 101/2018 |
| ANNEXURE A9 | CERTIFIED COPY OF THE ORDER DT. 3.8.2018 IN CRL. MP NO. 78/2018 IN CMP 53/2015 IN MC 101/2008 |
| ANNEXURE A10 | CERTIFIED COPY OF THE ORDER DTD. 3.8.2018 IN CRL.MP.NO. 114/2018 IN CMP 53/2015 IN MC. 101/2008 |
2 issues framed by the court
Whether the High Court can set aside Family Court orders dismissing compromise matters due to lack of representation when an advocate was instructed but the court was unaware, violating natural justic
Whether the Family Court was justified in dismissing C.M.Ps after the petitioner appeared via an instructed substitute advocate instead of the main counsel?
1 provisions across 1 enactments
Neethu Krishnan
Gayathri.N. @ Sijisha
Sunilkumar
State of Kerala
Alexander Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
