IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
OP(CRL.) NO. 360 OF 2022
PROCEEDINGS IN CRL.M.P.NO.1/2022 IN MC NO.147/2019 PENDING BEFORE THE
FAMILY COURT, PATHANAMTHITTA
PETITIONER:
MANU S NAIR,
S/O SUBRAMMANYAN NAIR,
MANJESH BHAVAN, PUTHUSSERY BHAGOM,
VAYALA P.O., ADOOR
NOW RESIDING AT PARANGAM VILAYIL,
VAYALA P.O., ADOOR ,PATHANAMTHITTA- 691 554.
BY ADV SRI.SREEHARI INDUKALADHARAN
RESPONDENTS:
1 CHANDANA C,
W/O MANU S NAIR,
PLAVILA VADAKKETHIL, VAYALA P.O
PUTHUSSERY BHAGAM MURI,
ERATHU VILLAGE, ADOOR TALUK-691 551
2 ANAND KRISHNA (MINOR)
PLAVILA VADAKKETHIL, VAYALA P.O.,
PUTHUSSERY BHAGAM MURI
ERATHU VILLAGE, ADOOR TALUK-691 551.
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 26.08.2022, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(Crl.) No.360 of 2022
2
JUDGMENT
Dated this the 26th day of August, 2022 This Original Petition is filed under Article 227 of the Constitution of India seeking to set aside an order passed by Family Court, Pathanamthitta (for short 'the court below') in Crl.M.P.No. 1/2022 in M.C.No.147/2019. By the impugned order the court below has directed the petitioner herein to pay monthly allowance for interim maintenance at the rate of Rs.5,000/- each to his wife and minor child who is studying in 6th standard.
2. In the impugned order the court below has observed that the petitioner herein had admitted before the court that he is getting a salary of Rs.16,000/- from his job as a Salesman. The learned counsel for the petitioner has read out the contentions taken in the objection filed. It is noticed that the petitioner herein has admitted in the objection that he is getting Rs.16,000/- as salary from his work as a Salesman. In the impugned order it has been stated by the court below that the respondent has admitted in his counter statement that his O.P(Crl.) No.360 of 2022 3 wife is not having any avocation and his child is studying in 6 th standard. The learned counsel for the petitioner has pointed out that in the counter statement he has not admitted that the wife is not having any avocation. True that a mistake has been crept into the impugned order. But the 1st respondent has taken a specific contention in the petition seeking for interim maintenance that she is having no job and is unable to maintain herself.
3. The learned counsel for the petitioner submitted that an affidavit needs to be filed by the parties for passing any order granting monthly allowance for interim maintenance. According to him in the case on hand the 1 st respondent failed to file affidavit disclosing her assets and liabilities as directed by the dictum in Rajnesh V. Neha and Another [2020 (6) KHC 1 (SC)]. The dictum in Rajnesh supra insists that both parties to a Maintenance Case shall file affidavits disclosing their assets and liabilities. In the case on hand the petitioner herein also failed to file an affidavit as insisted by Rajnesh supra. Therefore he cannot blame the lady for not having filed an affidavit. 3rd Proviso to Sub-Section (1) of Section 125 of the O.P(Crl.) No.360 of 2022 4 Code of Criminal Procedure (for short 'the Cr.P.C.') directs that an application for interim maintenance allowance shall be considered within sixty days from the date on which the notice of the application is served on the petitioner.
4. In the case on hand M.C. was seen filed in the year 2019 and Crl.M.P. seeking interim maintenance allowance was filed in the year 2022. Therefore, the court below cannot be found fault with in passing an order based on the materials available. Rs.5,000/- stands ordered in favour of the respondents being interim maintenance allowance this Court is declined to interfere with.
5. The court below shall insist the parties to file affidavits disclosing their assets and liabilities as directed in Rajnesh supra while M.C. was taken up for consideration. The evidence adduced by both parties shall be considered while passing a final order in the M.C.
O.P.(Crl.) fails and is dismissed in limine.
Sd/-
MARY JOSEPH JUDGE MJL O.P(Crl.) No.360 of 2022 5 APPENDIX OF OP(CRL.) 360/2022 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF MC NO.147/2019 FILED BY THE RESPONDENT HEREIN BEFORE THE FAMILY COURT, PATHANAMTHITTA EXHIBIT P2 TRUE COPY OF THE C.M.P NO. 1/2022 IN M C NO.147/2019 BEFORE THE HON'BLE FAMILY COURT, PATHANAMTHITTA EXHIBIT P3 TRUE COPY OF THE OBJECTION ALONG WITH LIST OF DOCUMENTS FILED BY THIS PETITIONER IN THE ABOVE MC EXHIBIT P4 TRUE COPY OF THE ORDER DATED 22.04.2022 IN CRL M P NO 01/2022 IN M C NO 147/2019 RESPONDENTS' EXHIBITS: NIL TRUE COPY PA TO JUDGE