Kerala High Court
Linson Francis vs Susan Cloud on 22 February, 2022
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 22ND DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943
OP(CRL.) NO. 73 OF 2022
SEEKING MODIFICATION OF ORDER DATED 18.01.2022 IN
M.P.NO.602/2021 IN MC NO.650/2018 OF FAMILY COURT,THRISSUR
PETITIONER/RESPONDENT IN M.C.NO.650/2018
LINSON FRANCIS,
AGED 34 YEARS,
SON OF FRANCIS CHIRAYATH,
CHELIPARAMBIL HOUSE, SUBASHNAGAR, CHIYYARAM P O,
THRISSUR, PIN 680026
BY ADV SRI.SUMODH MADHAVAN NAIR
RESPONDENTS/PETITIONERS IN M.C.NO.650/2018
1 SUSAN CLOUD,
AGED 21 YEARS,
DAUGHTER OF SAJI MON,
MANJAMATTATHIL HOUSE, KOONAMMOOLA,
PONNOOKKARA P O, THRISSUR, PIN 680014
2 PRINCE LINSON,
AGED 1 YEAR,(MINOR)
SON OF LINSON FRANCIS,
MANJAMATTATHIL HOUSE, KOONAMMOOLA,
PONNOOKKARA P O, THRISSUR, PIN 680014,
REPRESENTED BY MOTHER, 1ST RESPONDENT
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
22.02.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P (Crl) No.73 of 2022 2
JUDGMENT
Dated this the 22nd day of February, 2022 This petition is filed under Article 227 of the Constitution of India seeking to set aside Ext.P5 order after calling for the records leading to the passing of the same or for issuance of a direction to the Family Court, Thrissur to permit payment of arrears of interim maintenance in eight equal monthly installments.
2. The parties to this Original Petition will hereinafter be referred to, in accordance with their status in the M.C before the Family Court.
3. An application was moved by the 1 st petitioner as M.C. No. 650/2018 before Family Court, Thrissur (for short 'the court below') seeking for monthly maintenance allowance at the rate of Rs.15,000/- and 25,000/- respectively to herself and the 2nd petitioner, under Section 125 (1) Cr.P.C. It was pleaded in the petition that the 2nd petitioner is suffering from some serious O.P (Crl) No.73 of 2022 3 ailments and huge sum is required for his treatment and that Rs.4,00,000/- was already spent by the family members of the 1st petitioner towards treatment of the 2nd petitioner. The respondent was declared ex parte in the proceedings. The petitioners filed proof affidavit and also marked Exts. P1 to P7 as part of evidence. Ext.P1 is a copy of marriage certificate, Ext.P2 is a copy of birth certificate of the 2nd petitioner, Ext.P3 is the discharge summary of the 2nd petitioner, Ext.P4 series are the copies of treatment records of the 2nd petitioner issued from Amrita Hospital, Ernakulam, Ext.P5 is the discharge summary of the 1st petitioner issued from Medical College Hospital, Thrissur, Ext.P6 is the copy of the FIR registered against the respondent on the basis of a complaint filed by the 1 st petitioner and Ext.P7 is the copy of a complaint submitted before the police.
4. On the basis of the evidence adduced as above, the court below has passed the impugned order granting Rs.8,000/- and Rs.12,000/- respectively as monthly maintenance allowance to the 1st and 2nd petitioners. The respondent was directed to pay the above sum on or before the 5th of every month and the O.P (Crl) No.73 of 2022 4 1st petitioner is authorised to receive the maintenance allowance on and behalf of the 2nd petitioner.
5. Since the above order was passed ex parte, the respondent has moved an application before the court below as M.P. No.602/2021 seeking to set aside the order passed against, declaring him ex parte. In the application the contention of the respondent was that he could not follow up the proceedings in the M.C. and therefore could not appear before the court on 15.03.2021. For want of appearance, the court below has declared him ex parte and proceeded to pass the impugned order.
6. The application filed by the respondent was vehementally opposed by the 1st petitioner contending that there was no reason for the failure of the respondent to appear before the court. It was further reported that the respondent even failed to pay the interim maintenance allowance stands ordered.
7. The court below after considering the rival contentions of the respective parties was pleased to set aside the exparte order on terms of deposit of Rs.90,000/- towards arrears of O.P (Crl) No.73 of 2022 5 interim maintenance allowance by the respondent in three equal monthly installments. Being highly prejudiced by the direction issued to pay Rs.90,000/- in three equal monthly installments, present petition is filed.
8. It is submitted by the learned counsel for the respondent that he is prepared to pay Rs.90,000/- but a reasonable time is required.
9. This Court notices that the order in the M.C.650/2018 was passed on 20.03.2021. It appears from the impugned order that interim maintenance allowance was ordered prior to that. The respondent remained ex parte in both the proceedings and he has not paid a single pie to the petitioners till date. However the Family Court has given him a chance to contest his case on merits after paying Rs.90,000/- towards arrears of interim maintenance, in three equal monthly installments.
10. The pandemic situation is prevailing even now. Therefore the direction to pay Rs.90,000/- in three equal monthly installments is undoubtedly prejudicial to the respondent. This Court finds justification in modifying the impugned order by O.P (Crl) No.73 of 2022 6 reducing the sum directed to be paid to Rs.60,000/- and directing the deposit to be made in three equal monthly installments. The respondent shall see that the first deposit is made in the month of March and the remaining payments in April and May.
The O.P.(Crl.) stands disposed of with the above modification of the order assailed.
Sd/-
MARY JOSEPH JUDGE MJL O.P (Crl) No.73 of 2022 7 APPENDIX OF OP(CRL.) 73/2022 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE M.C. NO.650/2018 PREFERRED BY THE 1ST RESPONDENT HEREIN UNDER SECTION 125(1) OF CRIMINAL PROCEDURE CODE BEFORE THE FAMILY COURT, THRISSUR DATED 14.11.2018 EXHIBIT P2 TRUE COPY OF THE COUNTER DATED 10.4.2021 IN M.C. NO.650/2018 ON THE FILE OF FAMILY COURT, THRISSUR EXHIBIT P3 TRUE COPY OF THE ORDER DATED 20.3.2021 IN M.C. NO.650/2018 PASSED BY THE FAMILY COURT, THRISSUR EXHIBIT P4 TRUE COPY OF THE PETITION IN M.P. NO.602/2021 IN M.C. NO.650/2018 ON THE FILE OF FAMILY COURT, THRISSUR DATED 26.3.2021 EXHIBIT P5 TRUE COPY OF THE ORDER DATED 18.1.2022 IN M.P. NO.602/2021 IN M.C. NO.650/2018 OF THE FAMILY COURT, THRISSUR RESPONDENTS' EXHIBITS: NIL TRUE COPY PA TO JUDGE