Mrs. Sabariya vs The Maintenance Tribunal
2023 Latest Caselaw 9924 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945
                       WP(C) NO. 10699 OF 2023
PETITIONER:

          MRS. SABARIYA, AGED 55 YEARS,
          D/O. LATE K. M. ALI,
          RESIDING AT FLAT NO.7B "SKYLINE GARNET" APARTMENTS,
          K.T. GOPALAN ROAD, KOTTOOLI P.O.,
          KOZHIKODE, PIN - 673 016.

          BY ADVS.A.S.DILEEP
          P.BINOD
          K.Y.SUDHEENDRAN
          SUSEELA DILEEP
          SUDEEP ARAVIND PANICKER


RESPONDENTS:

    1     THE MAINTENANCE TRIBUNAL, KOZHIKODE,
          REP BY ITS PRESIDING OFFICER SUB COLLECTOR/RDO,
          CIVIL STATION P.O., MALAPARAMBA,
          KOZHIKODE DISTRICT, PIN 673 020.

    2     MR. M. ABDURAHIMAN KUTTY, AGED 64 YEARS,
          S/O. LATE ABUBACKER,
          RESIDING AT MOODANTHARMEL HOUSE,
          KARUVANTHRURUTHI P.O., KOZHIKODE DISTRICT,
          PIN-673 631.

    3     MRS. SATHIANOOR M., AGED 36 YEARS,
          D/O. M. ABDURAHIMAN KUTTY, RESIDING AT FLAT NO. 7B
          "SKYLINE GARNET" APARTMENTS, K.T. GOPALAN ROAD,
          KOTTOOLI P.O., KOZHIKODE, PIN-673016.

    4     MRS. AMEERA M., AGED 33 YEARS,
          D/O. M. ABDURAHIMAN KUTTY, RESIDING AT FLAT NO. 7B
          "SKYLINE GARNET" APARTMENTS, K.T. GOPALAN ROAD,
          KOTTOOLI P.O., KOZHIKODE, PIN -673016.

    5     MR. DANISH M., AGED 30 YEARS,
          S/O. M. ABDURAHIMAN KUTTY, RESIDING AT FLAT NO. 7B
          "SKYLINE GARNET" APARTMENTS, K.T. GOPALAN ROAD,
          KOTTOOLI P.O., KOZHIKODE, PIN-673016.
 WP(C) NO. 10699 OF 2023
                               -2-

        BY ADVS.P.S.APPU, GP
        R.PARTHASARATHY
        ANUPAMA SIBI
        B.KRISHNAN


     THIS   WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION   ON   18.09.2023,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 10699 OF 2023
                                   -3-

                              JUDGMENT

The petitioner impugns Ext.P1 on various

grounds, including that it is not maintainable

and it has been issued without affording her

necessary opportunities.

2. Sri.A.S.Dileep - learned counsel for the

petitioner, submitted that his client is the

wife of the 2nd respondent and the mother of

respondents 3 to 5; and allege that the 2 nd

respondent has filed an application before the

1st respondent - Maintenance Tribunal ('Tribunal'

for short) against her which is not

maintainable.

3. Sri.A.S.Dileep explained that his client

and the 2nd respondent are husband and wife and

joint owners of the property in question; and

that, on the assertion that 2nd respondent is not

being allowed to use the same, he has filed an

application for maintenance, which has now been WP(C) NO. 10699 OF 2023

entertained by the Tribunal, leading to Ext.P1

interim order being issued. He thus prayed that

Ext.P1 be set aside and that the learned

Tribunal be directed to first consider the

maintainability of the application preferred by

the 2nd respondent, after affording necessary

opportunity to his client, as also to other

respondents.

4. In response, Sri.R.Parthasarathy -

learned counsel for the 2nd respondent, submitted

that the petition filed by his client before the

1st respondent - Tribunal is maintainable,

because the property in question belongs to him

and the petitioner jointly; and thus she

becoming his heir, if something is to happen to

him. He argued that, therefore, within the ambit

of Section 4 of the Maintenance and Welfare of

Parents and Senior Citizens Act, 2007 ('Act',

for short), the petition filed by his client WP(C) NO. 10699 OF 2023

becomes fully maintainable; and therefore, that

Ext.P1 cannot be assailed on such terms.

5. Smt.Anupama Siby - learned counsel

appearing for respondent No.3, submitted that,

though she does not have any comment to make on

the question of maintainability of Ext.P1 at

this stage, her client supports the petitioner.

She thus left it to this Court to take an

apposite decision in this regard.

6. When I evaluate and consider the afore

submissions, it is evident that it is the

specific case of the petitioner that the

petition filed by the 2nd respondent - based on

which Ext.P1 order has been issued by the 1st

respondent Tribunal - is not maintainable. She

also has a case that said order has been issued

without affording her an opportunity of being

heard; and that too on the date on which she was

asked to appear.

WP(C) NO. 10699 OF 2023

7. I have examined Ext.P1 and it is without

doubt that it was issued on 27.02.2023, and it

records that it was considered on 24.02.2023,

for the purpose of deciding whether it can be

accepted and acted upon. The order does not

mention anywhere that the petitioner, or other

party respondents, had been heard; and to that

extent, I am certainly of the opinion that

Ext.P1 cannot find my favour.

8. That apart, the question whether a

husband can file a petition of the nature

reflected in Ext.P1 against his own wife, merely

because they are the joint owners of a property,

has also not been considered by the 1 st

respondent - Tribunal.

In the afore circumstances, I order this

writ petition and set aside Ext.P1; with a

consequential direction to the 1st respondent to

reconsider the matter, adverting to the specific WP(C) NO. 10699 OF 2023

contentions of the petitioner, as also that of

the respondents; thus culminating in an

appropriate and necessary order, as

expeditiously as is possible, but not later than

one month from the date of receipt of a copy of

this judgment.

In order to obtain an expeditious

compliance of the afore directions, I direct the

parties to mark appearance before the 1st

respondent - Tribunal, at 11 a.m. on 26.09.2023.

I, however, deem it necessary to clarify

that I have not entered into the merits of any

of the rival contentions of the parties; and

that all of them are left open, and that my

observations herein are only meant to guide me

to the decision in this judgment and nothing

more.

Sd/-

DEVAN RAMACHANDRAN sas/akv JUDGE WP(C) NO. 10699 OF 2023

APPENDIX OF WP(C) 10699/2023

PETITIONER EXHIBITS

EXHIBIT-P1 TRUE COPY OF THE INTERIM ORDER DATED 27/02/2022 ISSUED BY THE 1ST RESPONDENT

EXHIBIT-P2 TRUE COPY OF THE AGREEMENT DATED 09/10/2015 ENTERED INTO BETWEEN THE 2ND RESPONDENT AND MR. URPPATTIL MOHAMMED ALI ENTRUSTING THE LATTER TO RUN THE SHOP

EXHIBIT-P3 TRUE COPY OF THE PLAINT/PETITION DATED 29/08/2022 FILED BY THE 2ND RESPONDENT AS O.P. NO. 1415/2022 BEFORE THE HON'BLE FAMILY COURT, KOZHIKODE

EXHIBIT-P4 TRUE COPY OF THE OBJECTION DATED NIL FILED BY THE PETITIONER AND RESPONDENTS 3 TO 5 BEFORE THE 1ST RESPONDENT

RESPONDENT EXHIBITS

EXHIBIT-R2(A) TRUE COPY OF PETITION DATED 23.01.2023 FILED BEFORE THE MAINTENANCE TRIBUNAL, KOZHIKODE

EXHIBIT-R2(B) TRUE COPY OF THE DEED NO. 1260/2013 OF SRO CHEVAYUR DATED 4-4-2013