Waheeda vs C.Najeeb
2021 Latest Caselaw 22560 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MRS. JUSTICE MARY JOSEPH
 FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
                        OP(CRL.) NO. 451 OF 2021
    IN M.P.NO.563/2020 IN M.C.NO.254/2020 OF FAMILY COURT,
                                ERNAKULAM


PETITIONER/PETITIONER:

             WAHEEDA,
             AGED 54 YEARS,
             W/O.C.NAJEEB, RESIDING AT THAMANA, SRM ROAD,
             PACHALAM P.O., KOCHI- 682 012

             BY ADVS.SRI.LIJO JOSEPH
                     SRI.NIDHI SAM JOHN


RESPONDENT/RESPONDENT:

             C.NAJEEB,
             AGED ABOUT 60 YEARS,
             S/O.CHEKKUVINTAVIDE K.K.MOIDU, NAVAF BUNGLAW,
             MAHAKAVI BHARATHEEYAR ROAD, NEAR YWCA, ERNAKULAM
             DISTRICT-682 035


     THIS    OP    (CRIMINAL)    HAVING     COME    UP   FOR    ADMISSION   ON
19.11.2021,       THE   COURT   ON   THE     SAME    DAY       DELIVERED    THE
FOLLOWING:
 O.P(Crl.)No.451 of 2021

                                     2

                            JUDGMENT

Dated this the 19th day of November, 2021

This petition is filed challenging an order passed by Family

Court, Ernakulam (for short 'the court below') in

M.P.No.563/2020 in M.C.No.254/2020. In the Original Petition

the following reliefs are sought:

"i. To modify Ext.P16 order dated 24/03/2021 in M.P.No.563/2020 in M.C.No.254/2020 on the file of the Family Court, Ernakulam.

ii. To direct the respondent to pay interim maintenance to the petitioner to the tune of Rs.50,000/- per month;

iii. To direct the Family Court, Ernakulam to issue a warrant against the respondent for non-compliance of Ext.P16 Order dated 24.03.2021;

iv. To direct the Family Court, Ernakulam to accept Ext.P17 document produced by the petitioner in evidence.

v. To grant such other reliefs that are appropriate and incidental to this Original Petition (Criminal)."

2. The averments of the petitioner was that she has filed

M.C.No.254/2020 before the court below seeking maintenance

allowance for the reason that her husband abandoned her in her

old age after squandering her family assets and money. In the

M.C it was further alleged that her husband is currently working

as architect and also engaged in some business and she is only a O.P(Crl.)No.451 of 2021

housewife devoid of any income of her own to meet her

expenses. Copy of the MC is produced alongwith the petition on

hand as Ext.P1. Alongwith the MC the petitioner has filed MP

No.563/2020 seeking for interim maintenance allowance, copy

of which is also produced as Ext.P2. Copies of the objection

and the additional objection filed by the respondent in

M.P.No.563/2020 are also produced respectively as Exts.P3 and

P4. In the marriage between the parties held on 22.12.1985,

three children were born (two daughters and one son) and all of

them were also married now. At the time of their marriage in

the year 1985, the petitioner was working under Architect

Gopakumar as a staff only for a salary of Rs.1,500/-.

3. The petitioner came from a well-off family and 150

sovereigns of gold ornaments and Rs.1,00,000/- were given to

her at the time of marriage. 100 sovereigns of gold was also

gifted to her on festival occasions by her family. The respondent

hails only from a relatively poor background. His family house

was mortgaged with a bank and huge amount was due to be

paid. The loan arrears was settled later by utilising the money

given by the father of the petitioner. Petitioner's father had also

purchased a land and a house was constructed there in the year O.P(Crl.)No.451 of 2021

1989 for her benefit.

4. It is contended that the respondent was engaged in

real estate business and is also involved in construction activities

including Avenue Apartments in various places. The relation

between the respondent and the petitioner strained from 2013

and that resulted in desertion of the petitioner by the

respondent. He also failed to maintain her. Thereafter MC

No.28/2014 and MC No.32/2014 had been filed by the petitioner

before the Additional Chief Judicial Magistrate Court, Ernakulam

under the Domestic Violence Act, 2005 and orders were

obtained in her favour. The respondent appealed those in

Crl.Appeal No.503/2014 before the District Court and as directed

a mediation was attended wherein the issues were settled

amicably and culminated in the execution of mediation

agreement dated 14.11.2014, copy of which is produced

alongwith as Ext.P7. In MC No.446/2019 the Family court

awarded a sum of Rs.10,000/- as interim maintenance allowance

on 07.07.2020, which order was assailed in

OP(Crl.)No.252/2020 by the petitioner for inadequacy of the

amount. By judgment dated 16.09.2020 this Court directed the

petitioner to file a fresh maintenance case incorporating the new O.P(Crl.)No.451 of 2021

materials gathered by her. Thus MC 252/2020 was filed seeking

for a sum of Rs.3,00,000/- towards maintenance allowance and

M.P No.563/2020 seeking for Rs.2,00,000/- as interim

maintenance allowance. Copy of the judgment in O.P(Crl.) is

produced alongwith as Ext.P11. The grievance of the petitioner

was that an affidavit was filed by both parties before the Family

Court but the affidavit filed by the respondent is full of false

statements. The Family Court has passed an order in M.P

No.563/2020 directing the respondent to pay Rs.25,000/- as

interim monthly maintenance allowance, which is now assailed in

the petition on hand.

5. It is contended by the learned counsel that the Family

Court has directed in that order to adjust the amount paid by

the respondent in the earlier M.P filed in M.C No.446/2019

towards the arrears of maintenance payable in present M.C. It

is further contended that though the respondent was a person

affluent with satisfactory finance, the Family Court has ordered

only Rs.25,000/- as interim monthly maintenance allowance. It

is further contended by the learned counsel that despite passing

of the impugned order on 24.03.2021 the respondent failed to

pay a single pie towards monthly maintenance allowance. O.P(Crl.)No.451 of 2021

Thus she was constrained to file M.P.No.342/2021 before the

Family Court, Ernakulam seeking for execution of the order

directing interim maintenance allowance. According to the

learned counsel though M.P No.342/2021 was filed in M.P

No.563/2020 in M.C No.254/2020 on 23.06.2021, despite

several postings, execution of the order sought is not

materialised. The M.P is now posted to 07.02.2022, that too

for filing objection by the counter petitioner.

6. According to the learned counsel, eventhough the

impugned order was passed in M.P No.563/2020 on 24.03.2021,

payments were not effected by the respondents towards

monthly maintenance allowance despite lapse of seven months.

Though M.P. No.342/2021 was filed seeking execution, that was

also not pursued with effectively.

7. This Court has noticed that in the impugned order, the

Family Court has made it clear that the payments made by him

in compliance of the order passed in M.P No.1210/2019 in M.C

No.446/2019 will be adjusted towards the arrears payable by

him to the petitioner towards interim maintenance allowed by

the order. M.C No.446/2019 having been dismissed as

withdrawn by the petitioner with permission of this Court, the O.P(Crl.)No.451 of 2021

petitioner cannot enjoy the benefit of the amount received under

the order. She will not be entitled for the amount received by

her in M.P No.1210/2019 filed in the said M.C. The Family Court

has rightly ordered the said amount to be adjusted to the

maintenance allowance that would be passed in the M.C. now

stands filed. This Court is declined to interfere with that for the

above reasons.

8. It is true that Rs.25,000/- stands ordered as interim

maintenance allowance by the impugned order passed in

M.P.No.563/2020. M.C No.446/2019 is pending consideration of

the Family Court and a final order of monthly maintenance

allowance is yet to be passed therein. Therefore, the petitioner

is entitled to adduce evidence to substantiate all her averments

in the M.C.No.446/2019 to get a modified sum as monthly

maintenance allowance.

9. True that M.P No.342/2021 was filed in a context of

failure of the respondent to pay any sum towards interim

maintenance allowance. The extract of the proceedings from the

Family Court produced by the petitioner would reveal that M.P.

was not pursued with effectively by the Family Court, though

several postings were over. The case was adjourned by O.P(Crl.)No.451 of 2021

endorsing 'call on' and only on 03.11.2021 the case was posted

for evidence. Thereafter the case was found posted to

07.02.2022 for objection. It is found that the petitioner has

been denied with the benefits of the impugned order, though

passed in her favour on 24.03.2021. Much time had already

been consumed by the court without pursuing with the M.P, on

merits. Despite adjournments of M.P severally, specifically

for five occasions, no steps have been taken for executing the

order.

In the result, O.P.(Crl) stands allowed in part and Family

Court, Ernakulam is directed to consider M.P.No.342/2021 with

immediate effect. In the event of the restoration of the physical

hearing now, the Family Court, Ernakulam shall advance

M.P.No.342/2021 to an early date from 07.02.2022 suo moto

after duly informing the parties and take all endeavours to

execute the order directing payment of interim maintenance

allowance to enable the petitioner to enjoy the benefits of the

order, as maintenance allowance is something meant for the

sustenance of the party claimed it.

Sd/-

                                                   MARY JOSEPH

 MJL                                                   JUDGE
 O.P(Crl.)No.451 of 2021



                            APPENDIX

 PETITIONER'S EXHIBITS

 EXHIBIT P1          COPY    OF    THE    MAINTENANCE    PETITION

M.C.NO.254/2020 FILED BY THE PETITIONER BEFORE FAMILY COURT, ERNAKULAM 28/9/2020

EXHIBIT P2 COPY OF THE INTERIM PETITION M.P.NO.563/2020 IN M.C.NO.254/2020 FILED BY THE PETITIONER BEFORE FAMILY COURT, ERNAKULAM DATED 28.9.2020

EXHIBIT P3 COPY OF OBJECTION IN M.P.NO.563/2020 IN M.C.NO.254/2020 FILED BY THE RESPONDENT DATED 23/11/2020

EXHIBIT P4 COPY OF ADDITIONAL OBJECTION IN M.P.NO.563/2020 IN M.C.NO.254/2020 FILED BY THE RESPONDENT DATED 18.02.2021

EXHIBIT P5 COPY OF THE PHOTOGRAPHS SHOWING THE LADIES WHO HAVE ILLICIT CONNECTION WITH THE RESPONDENT

EXHIBIT P6 COPIES OF MEDICAL RECORDS OF THE PETITIONER

EXHIBIT P7 COPY OF THE MEDIATION AGREEMENT DATED 14/11/2014 ALONG WITH ADDITIONAL SETTLEMENT STATEMENT DATED 28.11.2014 ENTERED BETWEEN THE PETITIONER AND THE RESPONDENT

EXHIBIT P8 COPY OF THE JUDGMENT DATED 29.11.2014 IN CRL.APPEAL NO.503/2014 PASSED BY THE THIRD ADDITIONAL SESSIONS JUDGE, ERNAKULAM.

EXHIBIT P9 COPY OF THE FIR NO.1523/2014 OF ERNAKULAM TOWN NORTH POLICE STATION DATED 18/8/2014

EXHIBIT P10 COPY OF THE RENT RECEIPTS (TAX INVOICES) RECEIVED BY THE RESPONDENT DATED 01/02/2020 EXHIBIT P11 COPY OF THE JUDGMENT DATED 16/9/2020 IN O.P.(CRL) NO.252/2020 PASSED BY THE HON'BLE HIGH COURT

EXHIBIT P12 COPY OF THE PETITIONER'S AFFIDAVIT SHOWING ASSETS AND LIABILITIES DATED 9.2.2021

EXHIBIT P13 COPY OF THE RESPONDENT'S AFFIDAVIT SHOWING ASSETS AND LIABILITIES DATED 22.2.2021 O.P(Crl.)No.451 of 2021

EXHIBIT P14 COPY OF THE BANK STATEMENT FOR THE PERIOD FROM 1/1/2018 TO 20.2.2021 OF THE PETITIONER SUBMITTED BEFORE FAMILY COURT.

EXHIBIT P15 COPY OF THE PETITIONER'S ADDITIONAL AFFIDAVIT DATED ON 25.2.2021

EXHIBIT P16 COPY OF THE ORDER OF FAMILY COURT IN M.P.NO.563/2020 IN M.C.NO.254/2020 DATED 24.3.2021

EXHIBIT P17 COPY OF THE PHOTOGRAPH OF THE FIXED DEPOSIT RECEIPT OF THE RESPONDENT WITH PEOPLE'S URBAN CO-OPERATIVE BANK, THRIKKAKARA BRANCH.

EXHIBIT P18 COPY OF M.P.NO.342/2021 IN M.P.NO.546/2020 IN M.C.NO.254/2020 OF THE FAMILY COURT, ERNAKULAM DATED 22.6.2021

EXHIBIT P19 COPY OF THE OBJECTION FILED BY THE RESPONDENT IN M.P.NO.342/2021 IN M.P.NO.563/2020 IN M.C.NO.254/2020 DATED 02.11.2021

EXHIBIT P20 PRINTOUT COPY OF THE COURT SITE PROCEEDINGS IN M.C.NO.254/2020 OF THE FAMILY COURT, ERNAKULAM.

RESPONDENT'S EXHIBITS: NIL

TRUE COPY

P A TO JUDGE