Kerala High Court
V.M.Alexander vs Sheela George
Bench: T.R.Ramachandran Nair, P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
&
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936
Mat.Appeal.No. 163 of 2014 ()
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AGAINST THE ORDER DATED 6.2.2014 IN I.A.No.8/2013 IN OP 74/2013 ON
THE FILE OF THE FAMILY COURT, MAVELIKKARA DATED
APPELLANT/(PETITIONER-RESPONDENT IN THE COURT BELOW):
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V.M.ALEXANDER, AGED 52,
S/O.N.M.MATHEW, VALLIAZHETH
SOUTH BLOCK, KATTANAM, BHARANICAVU MAVELIKARA.
BY ADV. DR.V.N.SANKARJEE
RESPONDENTS/:(RESPONDENTS-PETITIONERS IN THE COURT BELOW):
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1. SHEELA GEORGE, AGED 46 YEARS
D/O.SARAMMA GEORGE, MEENATHERIL VEEDU, PALLARIMANGALAM
THEKKEKKARA, MAVELIKARA - 690 107.
2. NIKHIL ALEX (MINOR),, AGED 17 YEARS
S/O.SHEELA GEORGE, MEENATHERIL VEEDU, PALLARIMANGALAM
THEKKEKKARA, MAVELIKARA
REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN
THE 1ST RESPONDENT.
R1,R 2 BY ADV. SRI.NIRMAL V NAIR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20-
10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AL/-
T.R.RAMACHANDRAN NAIR &
P.V.ASHA, JJ.,
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Mat. Appeal No.163 of 2014
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Dated this the 20th day of October 2014
JUDGMENT
Asha, J., The respondents herein are the divorced wife and minor child of the appellant. The respondents filed O.P.623/2012 before the Family Court, Alapuzha, which is now pending before the Family Court at Mavelikkara on being re-numbered as O.P.74/2013, claiming maintenance from the appellant herein.
2. The appellant filed a petition therein as I.A. No. 8/2013 praying for dismissal of the O.P stating that it is not maintainable since the marriage between the appellant and the 1st respondent was already dissolved with mutual consent under Section 10A of the Indian Divorce Act, 1869 and a decree for dissolution of marriage was already passed on 3.8.2004 by Additional District Court, Mavelikkara in the O.P. (Div) No.11/2004. That the respondent is claiming arrears of maintenance of Rs. 3,60,000/- towards post maintenance and Rs.5,000/- each per month as Mat. Appeal No.163 of 2014 :2: future maintenance after receiving a sum of Rs.30,000/-towards settlement of her claims in terms of that decree. The court below considered the prayer of the petitioner in the I.A, i.e issue as to whether the petition filed for getting maintenance from the respondent was to be dismissed in limine on the ground of maintainability, after hearing both sides and found that the facts as to whether any agreement was executed between the parties and as to whether the respondent received the amount of Rs.30,000/- from the appellant towards maintenance of divorced wife in full and final settlement of the claim towards maintenance, etc. were to be considered at the time of adducing evidence. Therefore, the I.A was dismissed on the basis of the above finding.
3. The appellant has approached this Court against this order dismissing that I.A.
4. We heard the learned counsel appearing for the appellant as well as the respondents. Learned counsel for the respondents relying on the judgment of this Court in the decision reported in K.D.Thankkappan Nair v. B.A.Prasanna Kumari and others (1995 KHC 230) opposes the appeal stating that Mat. Appeal No.163 of 2014 :3: no appeal shall lie under Section 19 before this Court against the order passed in the I.A.
5. Section 19 of the Family Courts Act, 1984 reads as follows:
Appeal--(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973, (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991.
Therefore, as rightly contended by the learned counsel for the respondent, we find that this appeal which is filed against an interlocutory order, is not maintainable. Mat. Appeal No.163 of 2014 :4:
6. Moreover the issue raised can be considered at the time of final disposal of the case, as found by the court below.
7. The case of the appellant is that the respondent who got divorce on mutual consent and who entered into an agreement to receive a lump sum amount of Rs.30,000/- to the respondent as one time settlement towards future maintenance. Therefore, she is not entitled to prefer further application for maintenance. We find that the court below has only found that the question of maintainability can be decided after adducing evidence at the time of final disposal.
8. We do not find any illegality in the order passed by the court below. All these matters can be raised at the time of trial as well as at the time of final disposal.
Hence, this appeal is dismissed. No costs.
Sd/-
T.R.RAMACHANDRAN NAIR (JUDGE) Sd/-
P.V.ASHA (JUDGE) AL/-
True copy P.A to Judge