Kerala High Court
Anjana Raj vs Nishad V on 11 March, 2020
Author: K.Harilal
Bench: K.Harilal, C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA,
1941
OP (FC).No.116 OF 2020
AGAINST THE ORDER/JUDGMENT IN OPHMA 1340/2013 OF FAMILY
COURT, ATTINGAL
PETITIONER/S:
ANJANA RAJ
AGED 27 YEARS
D/O. RAJAN, ANU BHAVAN, NAGAROOR VILLAGE,
THIRUVANANTHAPURAM DISTRICT
BY ADV. SRI.P.ANOOP (MULAVANA)
RESPONDENT/S:
NISHAD V
S/O. VISWANATHAN, CHALUVILA VEEDU,
ALTHARAMOODU P.O., NAGAROOR VILLAGE,
THIRUVANANTHAPURAM DISTRICT-695 102
R1 BY ADV. SRI.LIJU. M.P
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
11.03.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP (FC).No.116 OF 2020
..2..
JUDGMENT
Dated this the 11th day of March, 2020 K.Harilal,J The petitioner herein is the wife of the respondent. She is the petitioner in O.P.No.1340 of 2013 filed for dissolution of marriage and the respondent in OP(HMA) No.1423 of 2013 filed by the respondent herein, seeking declaration of title. Thereafter, the respondent filed O.P.No.1119 of 2014 seeking restitution of conjugal rights. These three Original Petitions are pending before the Family Court, Attingal and the cases are being tried jointly.
2. On 03.08.2018, the petitioner herein filed an application seeking a direction to the respondent herein to deposit the entire arrears of maintenance allowance due to her in MC No.227 of 2013, failing which the defence pleadings would be struck down.
OP (FC).No.116 OF 2020 ..3..
3. Though the application was filed on 03.08.2018, the same was not considered. Aggrieved by the delay in disposal of the said application, the petitioner approached this Court by filing OP(FC) No.725 of 2019 seeking an order directing the Family Court, Attingal to consider and dispose of the aforesaid application within a time frame. This Court by judgment dated 09.12.2019 allowed the application and directed the Family Court to dispose of Ext.P8 application therein within a time frame. Thereafter, the Family Court considered the said application and dismissed the same on the ground that the application is highly belated and cannot be considered, as the joint trial has commenced. This order is under challenge in this Original Petition.
4. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
5. On perusal of Ext.P8 application seeking a OP (FC).No.116 OF 2020 ..4..
direction to the respondent to deposit the entire arrears of maintenance allowance in MC No.227 of 2017, we find that the said application was filed on 03.08.2018. But, the same was not considered for a long period. Thereafter, the petitioner approached this Court by filing OP(FC) No.725 of 2019 seeking a direction to the Family Court to consider the said application within a time frame and this Court by Ext.P10 order dated 09.10.2019 directed the Family Court to consider and dispose of the aforesaid application within a period of two weeks of the date of production of a copy of the judgment. Thereafter, we find that the Family Court went wrong by finding fault with the petitioner herein on a reasoning that the application was filed at a belated stage. Since the application was pending consideration for two years, no kind of fault can be attributed against the petitioner. The grievance of the petitioner is that a sum of more than Rs.36,000/- was due OP (FC).No.116 OF 2020 ..5..
to her in MC No.227 of 2017.
6. It is trite law that, when a huge amount is pending due to the petitioner as maintenance allowance from the respondent, the petitioner has a right to approach the Court seeking a direction to the respondent to deposit the said amount within a time frame, even if the amount is due to the petitioner in another case. A Division Bench of this Court in Mahesh v. Roopa [2017 (3) KLT 226] has laid down the law that in order to protect the majesty of the Court, the courts have the power to strike off the defence of a man who refuses to pay maintenance to his wife and children.
6. Thus, we find that the Family Court has dismissed the petition, without considering the merits of the application, on an erroneous finding that the application has been filed, belatedly. The respondent has no right to proceed with his present Original Petitions, OP (FC).No.116 OF 2020 ..6..
unless he deposits the arrears of maintenance allowance, if any, due to the petitioner from him.
7. In the above view, we set aside Ext.P11 order passed by the Family Court. The Family Court is directed to consider the application afresh and pass appropriate orders, on merits. We make it clear that, final disposal of all the aforesaid Original Petitions would stand adjourned till the passing of fresh order in I.A.No.1923 of 2018 in O.P.(HMA) No.1423 of 2013.
The O.P.(F.C.) would stand allowed as prayed for.
Sd/-
K.HARILAL JUDGE Sd/-
C.S.DIAS JUDGE kkj OP (FC).No.116 OF 2020 ..7..
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PETITION IN MC 227/2013 BEFORE THE FAMILY COURT, ATTINGAL EXHIBIT P2 TRUE COPY OF THE ORDER IN MC 227/2013 BEFORE THE FAMILY COURT, ATTINGAL EXHIBIT P3 TRUE COPY OF THE ORDER IN RP(FC) 82/2015 DATED 17.03.2015 OF HON'BLE HIGH COURT EXHIBIT P4 TRUE COPY OF THE PETITION NO CMP 131/2015 FILED U/S. 128 CR.PC BEFORE FAMILY COURT, ATTINGAL DATED 07.05.2015 EXHIBIT P5 TRUE COPY OF THE PETITION NO CMP 204/2017 FILED U/S. 128 CR.PC BEFORE FAMILY COURT, ATTINGAL DATED 15.03.2017 EXHIBIT P6 TRUE COPY OF THE PETITION NO CMP 219/2018 FILED U/S. 128 CR.PC BEFORE FAMILY COURT, ATTINGAL DATED 04.05.2018 EXHIBIT P7 TRUE COPY OF THE PETITION NO CMP 717/20159 FILED U/S. 128 CR.PC BEFORE FAMILY COURT, ATTINGAL DATED 02.12.2019 EXHIBIT P8 TRUE COPY OF THE PETITION NO IA NO.1923/2018 IN OP(HMA) 1423/2013 ,OP NO.1119/2014 AND OP(HMA) 1340/2013 OF THE FAMILY COURT, ATTINGAL DATED 03.08.2018 OP (FC).No.116 OF 2020 ..8..
EXHIBIT P9 TRUE COPY OF THE OBJECTION IN DATED 24.11.2018 EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 09.12.2019 IN OP(FC) 725/2019 EXHIBIT P11 TRUE COPY OF THE ORDER DATED 13.01.2020 IN IA NO.1923/2018 IN OP(HMA) 1423/2013 OP NO 119/2014 AND OP(HMA) 1340/2013 OF THE FAMILY COURT, ATTINGAL