Karnataka High Court

Sri Mathen Thomas Thoppil vs Smt Thresi Emmanuel Ramapuram on 21 February, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                           NC: 2024:KHC:7425
                                                      WP No. 3657 of 2024




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 21ST DAY OF FEBRUARY, 2024

                                         BEFORE
                       THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                          WRIT PETITION NO. 3657 OF 2024 (GM-FC)


                   BETWEEN:

                       SRI MATHEN THOMAS THOPPIL
                       AGED ABOUT 47 YEARS
                       S/O SRI THOMAS VARGHESE
                       RESIDING A/T 902
                       NITESH FLUSHING MEADOWS APARTMENT
                       WHITEFIELD, BANGALORE-560 067.
                                                           ...PETITIONER
                   (BY SMT S SUSHEELA, SENIOR ADVOCATE FOR
                       SRI. SOMANATHA H.,ADVOCATE)

                   AND:

                      SMT THRESI EMMANUEL RAMAPURAM
                      AGED ABOUT 41 YEARS
Digitally signed      W/O SRI MATHEN THOMAS THOPPIL
by NAGAVENI           R.AT 802, SILVER TERRACE APARTMENT
Location: HIGH        167 (OLD NO 55), RICHMOND ROAD
COURT OF              NEAR TRINITY CIRCLE, ASHOK NAGAR
KARNATAKA
                      BANGALORE 560 025.
                                                           ...RESPONDENT
                   (BY SRI PRABHJIT JAUHAR, ADVOCATE FOR
                       SMT DEEPA J, ADVOCATE FOR C/R)

                        THIS WP IS FILED UNDER ARTICLE 227    OF THE
                   CONSTITUTION OF INDIA 1950, PRAYING TO QUASH THE
                   COMMON IMPUGNED ORDER DTD 14.12.2023 AT ANNX-A
                   RELATING TO THE REDUCTION OF VISITATION RIGHTS OF
                   FATHER FROM 4 TIMES TO TWO SUNDAYS AND ALSO THE
                   DIRECTION ISSUED TO PETITIONER/FATHER HEREIN TO
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                                                NC: 2024:KHC:7425
                                           WP No. 3657 of 2024




PAY MONTHLY MAINTENANCE OF RS. 40,000/- PER MONTH
TO THE RESPONDENT/ MOTHER AND CHILDREN PASSED IN
G AND WC NO. 120/2023 BY THE IST ADDL. PRINCIPAL
JUDGE FAMILY COURT AT BENGALURU AND ETC.

    THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

The petitioner is before this Court calling in question

the order dated 14.12.2023, whereby, the concerned Court

reduces the visitation rights of the petitioner/husband/father

which was for four times on every Sundays to two times in a

month on 1st and 3rd Sunday from 10:00 a.m. to 05:00 p.m.

2. Heard Smt. S.Susheela, learned Senior Counsel

appearing for the petitioner and Sri. Prabhjit Jauhar, learned

counsel appearing for respondent.

3. The facts in brief are as follows:

The petitioner is the husband and respondent is the

wife. Two get married on 02.09.2006. It transpires that the

relationship between the two flounders and on floundering of

the relationship, it is alleged that the wife walks away with

the children from the matrimonial house. Therefore the

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petitioner has filed an application before the concerned Court

in G & W.C. No.120/2023 seeking custody of the children. In

the said proceedings, the concerned Court passes an exparte

interim order permitting visitation rights to the petitioner on

four Sundays of the month between 10:00 a.m. to 05:00

a.m. The respondent - wife enters appearance, after the

respondent entering appearance, an application is filed in

I.A.No.VI seeking modification of the said order. Though, no

order is expressly passed on the said application for

modification, the order comes to be modified. The

modification is altering the visitation from four times in a

month between 10:00 a.m. to 05:00 p.m. to two times in a

month i.e., 1st and 3rd Sunday between 10:00 a.m. to 05:00

p.m. Apart from so modifying the visitation rights of the

father, the father is directed to pay maintenance at a sum of

Rs.40,000/- per month, it is this order that has driven the

petitioner to this Court, in the subject petition.

4. The learned senior counsel representing the

petitioner would submit that the petitioner is paying a huge

sums towards school fees and a sum of Rs.40,000/- that is

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directed to be paid as maintenance per month is without any

basis, as it runs counter to the judgment of Hon'ble Apex

Court which directs filing of affidavits before the

consideration of grant of maintenance. The learned Senior

Counsel further submits that the alteration of visitation

rights by the concerned Court is without hearing the

petitioner and is passed without considering the application

so filed, either for grant of maintenance, or for alteration of

maintenance. The learned Senior counsel would submit that

the order is cryptic.

5. The learned counsel representing the respondent

would though seek to refute the submissions, is not in a

position to defend the order insofar as it is unreasoned. The

learned counsel for the respondent would further submit that

the petitioner/husband pays only half of the school fees and

the remaining is paid by the maternal uncle of the children,

and therefore, the claim of the husband is disputed. Be those

submissions as they are.

6. The order that has driven the petitioner/father to

this Court reads as follows:

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"R/c filed objections to main petitioner in 2 sets.

Heard respondent counsel on I.A.No.3 and 6.

Sri. S.H. Counsel filed NOC Vakalath to

of Family Courts Act. Heard and same is allowed and Petitioner is permitted to engage the services of counsel.

The learned counsel for the petitioner filed an application under sec. 151 of CPC to extend interim order. Heard and interim order extended till next date of hearing.

Heard both the parties before the court and their counsel also present. Since the children are in the custody of the respondent/mother, when the exparte order passed by this court on 06.04.2023 is required to be modified as twice in a month instead of 4 times in a month preferably 1st and 3rd Sunday between 10.00 a.m. to 5.00 p.m. The petitioner/father is hereby directed to pay monthly maintenance of the children as well as the respondent to

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the extent of Rs.40,000/- and also to meet the educational expenses of the children till disposal of the application on merit.

Both the parties are hereby directed to comply the order.

To keep present the children on the next date by 25.01.2024."

7. The modification of visitation rights is ordered by

reducing it from four times to two times in a month on 1st

and 3rd Sunday between 10:00 a.m. to 05:00 p.m,. what

was granted as an exparte order, reads as follows:

"The petitioner / father is entitled for visitation rights of his children between 10.00 a.m. to 5.00 p.m. on every Sunday till the I.A.No.4 is considered on merit.

The respondent/mother is hereby directed to provide visitation rights to the petitioner / father as per her convenience and also which is convenient to the petitioner.

Call on 17.04.2023."

8. Therefore, on what basis the aforesaid orders are

passed by the concerned Court is not discernible, as there

are no reasons indicated, as to why the Court comes to

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conclusion for modification of the visitation rights

notwithstanding the fact that it was an exparte order. The

Court does not stop at that, the Court directs maintenance to

be paid to wife and children to an extent of Rs.40,000/- to

meet the educational expenses of the children till the

disposal of the application on its merits. Therefore, it

appears that the Court is passing an order again granting

interim maintenance not on any application being filed by

the wife. It is an admitted fact that the wife has not filed any

application seeking any maintenance.

9. Therefore, the concerned Court will have to

reconsider the entire issue with regard to grant of

maintenance and grant of visitation rights to the husband

afresh and pass appropriate orders in accordance with law,

which would be in tune with what the Apex Court, in the

case of Rajnesh Vs. Neha reported in 2021 (2) SCC 324

has held, directing the respective parties to file affidavits of

assets and liabilities statement before any Court which is

considering grant of maintenance from the hands of husband

to the wife. Admittedly, no affidavit of asset and liabilities

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are filed by the petitioner and the respondent in the case at

hand. As a matter of fact, not even an application is filed by

the wife seeking maintenance to herself or to the children as

the case would be. This would run completely counter to

what the Hon'ble Apex Court has directed in Rajnesh's

case (supra). The said judgment of Hon'ble Apex Court in

the Rajnesh's case (supra) has been subsequently followed

in the case of Aditi Vs. Jitesh Sharma reported in 2023

SCC online SC 1451. Therefore, in the light of the law laid

down by the Hon'ble Apex Court, in the aforesaid judgments,

the order impugned in the subject petition is on the face of it

is unsustainable, the unsustainability would lead to its

obliteration.

10. The learned counsel for the respondent submits

that the impugned order was passed on 14.12.2023 and as

on today, the husband has to pay maintenance for two

months. The learned senior counsel would submit that a sum

of Rs.40,000/- is already paid to the wife and another sum of

Rs.40,000/- would be paid on or before 26.02.2024. This

submission is placed on record.

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11. For the aforesaid reasons, the following:

ORDER

(i) The petition is allowed. The order dated

14.12.2023 passed in G& W.C. No.120/2023 by

the I Additional Principal Judge, Family Court,

Bengaluru is set aside.

(ii) The matter is remitted back to the hands of the

concerned Court.

(iii) The respondent/wife is at liberty to file an

application seeking maintenance and in the event

such an application is comes about, the

concerned Court shall direct the parties to file an

affidavit of asset and liabilities of both the

petitioner and respondent and then consider the

same and pass necessary orders qua

maintenance. The applications that are filed by

the husband or wife with regard to grant of

visitation rights or modification, shall be