Kerala High Court
Shibu Thekkekara vs Annie Thomas on 10 December, 2018
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH
AGRAHAYANA, 1940
OP (FC).No.67 of 2017
AGAINST THE ORDER IN I.A.NO.2038/2015 IN OP.NO.984/2015
OF THE FAMILY COURT,ERNAKULAM
PETITIONER:
SHIBU THEKKEKARA
S/O T.V.JOSE, THEKKEKARA HOUSE, OPP. MODEL
ENGINEERING COLLEGE, THRIKKAKARA P.O.,
KOCHI-682021 REPRESENTED BY THE POWER OF
ATTORNEY HOLDER SHEELA, D/O T.V.JOSE @ JOSE
VARGHESE, AGED 57, RESIDING AT THEKKEKARA
HOUSE, OPP. MODEL ENGINEERING COLLEGE,
THRIKKAKARA P.O., KOCHI-682021, STATE AS
FOLLOWS.
BY ADVS.
SMT.ANEY PAUL
SRI.B.PREMNATH (E)
RESPONDENT:
ANNIE THOMAS
D/O LATE A.T.THOMAS, 'SUNNY DALE', DIVINE
GARDEN, CSEZ P.O., KOCHI-682 037.
BY ADVS.
SMT.K.MEERA
SRI.BOBY MATHEW
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
10.12.2018, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
OP(FC).No.67 of 2017
2
JUDGMENT
C.K. ABDUL REHIM, J In the above Original Petition instituted under the Article 227 of the constitution of India, the petitioner is challenging Ext.P7 order passed by the Family Court, Ernakulam in I.A.No.2038/2015 in O.P.No.984/2015. The said interim application was filed under Section 26 of the Protection of Women from Domestic Violence Act (PWDV Act for short), for granting the following reliefs:
"(i)under Section 18 restrain the Respondent or any of his persons from committing any act of domestic violence against the Petitioner and her two children - Anne Varghese and Jos Shibu;
(ii)under Section 19 restrain the Respondent from entering into any portion of the shared house hold i.e.'Sunny Dale', Divine Garden, CSEZ P.O, Kochi - 682 037 where the Petitioner resides along with her children;
(iii)under Section 19 restrain the Respondent from dispossessing or in any other manner disturbing the possession of the Petitioner from the shared household; and
(iv) under Section 20 restrain the Respondent from discontinuing the sending of the amount of Rs.45,000/- currently being sent every month by him towards maintenance of the Petitioner and OP(FC).No.67 of 2017 3 the children; or in the alternative direct the Respondent to pay the said amount to the Petitioner and the children every month."
2. The respondent herein had filed O.P.No.984/2015 before the Family Court seeking dissolution of the marriage existing between the parties. I.A.No.2038/2015 was filed by her under Section 26 of the PWDV Act, seeking reliefs as mentioned above. The Court below had passed Ext.P3 order in the said application on 18/05/2016 directing the petitioner herein to pay Rs.25,000/- per month towards educational expenses of the children of the parties. The said order was subjected to challenge before this court at the instance of the petitioner herein, in an Original Petition filed as OP(FC)No.602/2016. This Court in Ext.P4 judgment dated 13/12/2016 found that, the order of the Family Court does not mention anything on the merits and also as to whether the I.A has been finally disposed of or not. Finding that the said order is unsustainable and liable to be set aside, OP(FC)No.602/2016 was allowed. Ext.P3 order was set aside and the Family Court was directed to dispose of I.A.No.2038/2015 afresh, by passing OP(FC).No.67 of 2017 4 appropriate orders. The petitioner herein was permitted to file objections if any, to the interlocutory application, within one week. The parties were directed to appear before the Family Court on 19/12/2016.
3. According to the petitioner, he had filed a detailed counter statement to I.A.No.2038/2015 as per Ext.P5. It is further pointed that, a detailed argument note was also submitted, as evidenced from Ext.P6. But the court below had disposed of I.A.No.2038/2015 in a cryptic manner without much discussions on the issue agitated. There is nothing indicated in the order impugned to show that the Family Court had considered the objections or contentions raised by the petitioner herein. The said order is also lacking any reasonings of the court below for issuing the directions contained therein. Though the cryptic order, the Family Court had restrained the petitioner from entering into the share hold house, from which he was also restrained from dispossessing or in any manner disturbing the peaceful possession of the respondent wife and children. OP(FC).No.67 of 2017 5
4. The above said order is impugned on various grounds. We think it is not necessary to advert to such grounds raised on the merits of the issue, which were stiffly controverted by the counsel appearing for the respondent herein. We find that the court below had omitted to comply with the specific directions contained in Ext.P4 judgment of this court. Further, the court below had failed in adverting to the rival contentions raised by both sides in I.A.No.2038/2015. The order impugned does not reflect any discussions on merits. Under such circumstances, we find that the impugned order cannot be sustained as legal and proper.
5. In the result, the above Original Petition is allowed and Ext.P7 order is hereby quashed. The Family Court is directed to pass fresh orders in I.A.No.2038/2015 in O.P.No.984/2015, after hearing both sides. The said I.A. shall be disposed of through a speaking order which should reflect proper reasonings arrived by the court below. Fresh orders in this regard shall be passed within one month from OP(FC).No.67 of 2017 6 the date of production of a certified copy of this judgment.
Till fresh orders are passed in I.A.No.2038/2015, the status quo as on today with respect to possession and enjoyment of the shared house hold, shall be maintained by both the parties.
Sd/-
C.K. ABDUL REHIM, JUDGE.
Sd/-
T.V. ANILKUMAR, JUDGE.
DK OP(FC).No.67 of 2017 7 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1: TRUE COPY OF O.P.NO.984/2015 ON THE FILE OF FAMILY COURT, ERNAKULAM.
EXHIBIT P2: TRUE COPY OF IA NO.2038/2015 IN OP NO.984/2015 ON THE FILE OF THE FAMILY COURT ERNAKULAM.
EXHIBIT P3: TRUE COPY OF THE INTERIM ORDER DATED 18.5.2016 IN IA NO.2038/2015 IN OP NO.984/2015.
EXHIBIT P4: TRUE COPY OF THE JUDGMENT IN O.P. (FC)NO.602/2016 OF THIS HON'BLE COURT.
EXHIBIT P5: TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM.
EXHIBIT P6: TRUE COPY OF THE ARGUMENT NOTES FILED BEFORE THE FAMILY COURT ERNAKULAM.
EXHIBIT P7: TRUE COPY OF THE ORDER DATED 30.12.2016 IA NO.2038/2015 IN OP NO.984/2015 PASSED BY THE FAMILY COURT, ERNAKULAM.
RESPONDENT'S EXHIBITS: NIL //TRUE COPY// PA TO JUDGE DK