Allowed

Amminikutty.T., v. Varughese Kurian

Kerala HC18 Nov 2019RPFC/405/2019

Case brief

AI extract

What is this about?

High Court set aside Family Court order granting Rs. 5,000 monthly maintenance, finding lack of application of mind and failure to consider respondent's income. Matter remitted for fresh consideration; interim maintenance of Rs. 5,000 granted pending final disposal.

What did the court decide?

Main matter remitted to Family Court for fresh determination. Respondent directed to pay interim maintenance of Rs. 5,000/month.

Amminikutty.T., Vs Varughese Kurian — 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 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941

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RPFC.No.405 OF 2019

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AGAINST THE ORDER/JUDGMENT IN MC 30/2016 DATED 21-08-2018 OF FAMILY COURT, PATHANAMTHITTA

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REVISION PETITIONER/S:

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AMMINIKUTTY.T., AGED 53 YEARS W/O.VARUGHESE KURIEN,KURUMBELIL VADAKKETHIL HOUSE, KIZHAKKETHERUVU.P.O,

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AYPPALLOOR MELILA VILLAGE, KOTTARAKKARA TALUK, PATHANAMTHITTA DISTRICT.

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BY ADVS. SRI.K.C.ELDHO SRI.MALLENATHAN.M. SMT.K.SINDHU ELIAS

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RESPONDENT/S:

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VARUGHESE KURIAN, ELANTHARAYIL THAZHATHETHIL HOUSE, ATTACHAKKAL.P.O, KONNI TAHAZHAM, PATHANAMTHITTA-689692.

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THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RPFC.No.405 OF 2019

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ALEXANDER THOMAS, J .

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R.P(FC).No.405 Of 2019

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Dated this the 18^th day of November, 2019.

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O R D E R

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The above Revision Petition filed under Sec.19(4) of the Family Courts Act, is directed against the impugned final order dated 21.8.2018 rendered by the Family Court, Pathanamthitta in M.C.No.30/2016 filed by the revision petitioner hereby, whereby the respondent herein (respondent therein) has been directed to pay maintenance @ Rs.5,000/per month to the petitioner herein (petitioner therein).

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Heard Sri.K.C.Eldho, learned counsel for the revision petitioner (wife). Though notice has been duly served on the respondent, there is no appearance for that party.

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The impugned order dated 21.8.2018 rendered by

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the Family Court, Pathanamthitta in M.C.No.30/2016 reads as follows:

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“ORDER

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Petitioner not present. Her counsel present. Heard. Respondent is amenable to pay Rs.3500/- to the petitioner. Respondent works in Military. He states that his son studies for +2. He has to pay loan amount in SBI taken to conduct marriage of his

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RPFC.No.405 OF 2019

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daughter. It is submitted that till this month has was making payment @ Rs.3000/- to the petitioner towards her maintenance. Considering the present cost of living Rs.5000/- is directed to be paid to the petitioner per month. Thus respondent is directed to pay Rs.5000/per month to the petitioner as her maintenance.”

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The petitioner herein has claimed the abovesaid

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amount in the M.C as the husband has neglected to take care of her and she has not means to take care of herself and further that the respondent herein is fully financially capable and he is working as a Havildar in Indian Army and he is getting income of not less than Rs.55,000/- per month and that the abovesaid claimed maintenance of Rs.15,000/- per month to be paid to her, etc. The respondent herein had entered appearance before the Family Court, Pathanamthitta and has filed written objections to the plea made in the M.C. but he has not chosen to adduce any evidence.

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A perusal of the impugned order issued by the Family Court would disclose that the there is no due application of mind and the fact that the respondent has not led any evidence to rebut her version has not been also duly taken note of by the Family Court. The court below has noted the submission of the learned counsel for the respondent that

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RPFC.No.405 OF 2019

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he is already making payment of maintenance @ Rs.3,000/to the petitioner herein, etc. Thereafter, the Family Court has held that the revision petitioner is entitled to maintenance @ 3,000/- per month. The Family Court has not adverted to the income of the respondent herein and the specific case set up by the petitioner herein is that the husband is working as a Havildar in Indian Army and at the relevant time he was getting and amount of Rs.55,000/- per month as salary, etc. In view of the matter, the abovesaid contention of the petitioner that the Family Court has committed illegality and impropriety in not considering all the relevant aspects of the matter and limiting the maintenance to Rs.5,000/- has to be duly taken into account by this Court.

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Accordingly, this Court is of the view that the matter requires a remit as it warrants serious reconsideration at the hands of the Family Court and the maintenance amount of Rs.5,000/- could be treated as interim maintenance to be paid by the husband. For effectuating such remit, the impugned final order dated 21.8.2018 rendered by the Family

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RPFC.No.405 OF 2019

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Court in M.C.No.30/2016 will stand set aside and the main matter in M.C.No.30/2016 will stand remitted to the Family Court, Pathanamthitta, for consideration afresh.

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It is further ordered in the interest of justice that the respondent herein will pay interim maintenance @ Rs.5,000/- per month to the petitioner herein for the period from the date of petition up to the date of final disposal of the M.C. The respondent herein is given one month's time to deposit the entire unpaid arrears in that regard. If the said amount is not paid by the respondent, then the petitioner will be at liberty to seek execution of the abovesaid directions in the matter of payment of interim maintenance by filing appropriate application before the Family Court, Pathanamthitta. In case the Family Court is permitting the respondent herein to adduce evidence, then the Family Court should insist that the respondent herein should produce his salary certificate from the competent authority concerned showing his basic, dearness allowance, etc., and his gross salary. In case the respondent does not produce the salary

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RPFC.No.405 OF 2019

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certificate as directed, then the Family Court need not permit any further opportunity to adduce evidence. Needless to say, if the respondent so adduces any evidence, then the petitioner should also be permitted to adduce evidence. The Family Court will take steps to ensure final disposal of the main matter in M.C without much delay, preferably within a period of 2-3 months from the date of receipt of a certified copy of this order.

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The Registry will forward a copy of this order to the Family Court, Pathanamthitta, who is dealing with M.C.No.30/2016 for necessary information and further action at the cost of the petitioner.

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

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Sd/ALEXANDER THOMAS, Judge.

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bkn/-

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RPFC.No.405 OF 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 A TRUE COPY OF THE MAINTENANCE PETITION VIDE MC NO.30 OF 2016 FILED BY THE PETITIONER BEFORE THE FAMILY COURT,PATHANAMTHITTA.

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ANNEXURE A2 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN M.C.NO.30 OF 2016

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ANNEXURE A3 A TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE PETITIONER IN ANNEXURE A1.

Amminikutty.T., v. Varughese Kurian

Case brief

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Amminikutty.T., v. Varughese Kurian

Case brief

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