Sandhya Madhavan vs Santhosh Vasudevan

Kerala High Court

Sandhya Madhavan vs Santhosh Vasudevan on 22 May, 2024

Author: Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

            THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
      THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                              &
            THE HONOURABLE MR. JUSTICE P.M.MANOJ
  WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
                   OP (FC) NO. 329 OF 2024

         AGAINST   THE   OPDIV   NO.3026   OF   2021   OF   FAMILY
COURT,ERNAKULAM

PETITIONER/FIRST RESPONDENT:

         SANDHYA MADHAVAN
         AGED 46 YEARS
         FLAT NO 8B, PVS IRIS APARTMENTS, DESOM PO, ALUVA,
         PIN - 683102

         BY ADVS.
         K.H.ASIF
         C.A.MAJEED
         MOLTY MAJEED
         P.B.UNNIKRISHNAN NAIR
         SHERIN BIJU


RESPONDENT/FIRST PETITIONER:

         SANTHOSH VASUDEVAN
         AGED 50 YEARS
         FLAT NO A-31, VANCHINADU VILLAGE APARTMENTS,
         PADAMUGAL PO, KAKKANAD, ERNAKULAM, PIN - 682030

    THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
    22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
    FOLLOWING:
 OP(FC) No.329 of 2024                    2




                                       JUDGMENT

Raja Vijayaraghavan, J.

The petitioner is the wife of the respondent herein. She has been arrayed as the respondent in O.P. (Div) No. 3026 of 2021 on the file of the Family Court, Ernakulam.

2. This petition is filed seeking a declaration that the aforesaid Original Petition is not maintainable under law and to quash the summons issued to the minor child of the petitioner to appear before the Family Court and to tender evidence.

3. According to the petitioner, the respondent herein had earlier filed O.P.No.2386/2020 before the Family Court seeking custody of the minor child. The matter was referred to the Lok Adalat for mediation and the parties were able to settle the disputes and Ext.P1 award was passed. Based on the award passed, the Family Court has disposed of the matter by judgment and decree dated 15.3.2022. Instead of complying with the terms of the judgment and decree, the respondent has instituted O.P. (Div) No. 3026/2021 before the Family Court seeking various reliefs. The petitioner contends that she has preferred Ext.P7 objection before the Family Court and has also preferred I.A.No.3 of 2023 on 15.6.2023 seeking to hear the maintainability of the petition filed by the OP(FC) No.329 of 2024 3 respondent. According to the petitioner, in view of the law laid down in Benny v Mini1, the Family Court was bound to consider the application and pass appropriate orders. However, without passing orders on the application, the Family Court is proceeding with the trial of O.P (Div) No. 3026 of 2021 filed by the respondent. It is contended that to cause hardship to the petitioner and her minor daughter, an application has been filed to summon the daughter to tender evidence before the court. It is contended that serious hardship would be caused if the Family Court proceeds with the matter, without passing orders on the maintainability of the petition.

4. We have heard Sri. Asif K.H., the learned counsel appearing for the petitioner.

5. We find that on receipt of notice in O.P (Div) No. 3026 of 2021, the petitioner has already filed his objection and also filed an application challenging the very maintainability. This application was filed relying on the law laid down in Benny (supra). Having considered the submissions, without expressing any opinion on the merits or otherwise of the application filed by the petitioner before the Family Court, we are of the view that it would be appropriate to direct the Family Court to consider and pass appropriate orders in I.A.No.3 of 2023 before proceeding with the trial in O.P. (Div) No.3026 of 2021. In that view of 1 2021 (1) KHC 723 OP(FC) No.329 of 2024 4 the matter, we do not propose to issue notice to the respondent herein.

6. Resultantly, this petition is disposed of directing the Family Court to take up, consider and pass appropriate orders in I.A. No. 3 of 2023 with notice to the petitioner as well as the respondent. Order shall be passed within a period of 4 weeks from the date of receipt of a copy of the judgment. Until orders are passed, the trial proceedings in the O.P. (Div) No.3026 of 2021 shall be kept in abeyance.

Sd/-

RAJA VIJAYARAGHAVAN V, JUDGE Sd/-

P.M.MANOJ JUDGE APM/22/05/2024 OP(FC) No.329 of 2024 5 APPENDIX OF OP (FC) 329/2024 PETITIONER EXHIBITS Exhibit .P-1 A TRUE COPY OF THE AWARD DATED 09/09/2021 OF THE LOK ADALAT (DLSA, ERNAKULAM) Exhibit.P-2 A TRUE COPY OF THE JUDGMENT DATED 15/03/2022 IN OP 2386/2020 OF THE HON'BLE FAMILY COURT, ERNAKULAM Exhibit.P-3 A TRUE COPY OF THE DECREE DATED 15/03/2022 IN OP 2386/2020 OF THE HON'BLE FAMILY COURT, ERNAKULAM Exhibit.P-4 A TRUE COPY OF THE PROCEEDINGS DATED 02/02/2024 OF THE HON'BLE FAMILY COURT, ERNAKULAM, IN OP 3036/2021 Exhibit.P-5 A TRUE COPY OF THE SUMMONS DATED 27/03/2024 ISSUED BY THE HON'BLE FAMILY COURT IN OP 3026/2021 Exhibit.P-6 A TRUE COPY OF THE ORIGINAL PETITION IN OP 3026/2021 Exhibit.P-7 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN OP 3026/2021 WHO IS THE PETITIONER HEREIN Exhibit.P-8 A TRUE COPY OF THE PETITION IA 3/2023 IN OP 3026/2021 DATED 16/06/2023