Kerala High Court
Mary Edward vs Ferdinent Edward on 2 August, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
OP (FC) NO. 495 OF 2024
AGAINST THE ORDER DATED 19.12.2023 IN I.A.NO.66 OF 2023 IN
O.P.NO.61 OF 2004 OF FAMILY COURT, THIRUVANANTHAPURAM
PETITIONER/PETITIONER/PETITIONER:
MARY EDWARD, AGED 84 YEARS
W/O.EDWARD, TANK VIEW BUNGALOW, KUNNUKUZHI P.O.,
THIRUVANANTHAPURAM DISTICT NOW RESIDING AT JOSE
VILLA, VADAKKUM BHAGOM BUNGLOW PURAYIDOM,
CHINNAKADA, KOLLAM DISTRICT., PIN - 695307
BY ADV J.JAYAKUMAR
RESPONDENT/RESPONDENT/RESPONDENT:
FERDINENT EDWARD
S/O.EDWARD, BETHEL HOUSE, KAKKATTU LANE,
KADAKAMPALLY, PETTAH THIRUVANANTHAPURAM DISTRICT.,
PIN - 695024
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
02.08.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P(FC) No.495 of 2024 2
JUDGMENT
Devan Ramachandran, J.
The petitioner calls into question Ext.P5 order issued by the
learned Family Court, Thiruvananthapuram, whereby, his
application - namely I.A.No.66 of 2023 in O.P.No.61 of 2004 - for
enhancing the quantum of maintenance - earlier fixed against
the respondent-husband, has been rejected saying that "the
executing Court cannot go beyond the decree and enhance the
amount decreed as maintenance" (sic).
2. Sri.Jayakumar J. - learned Counsel for the petitioner,
vehemently argued that the learned Trial Court appear to have
proceeded under a misconception that his client has filed the
above said application in the execution proceedings, and not in
the Original Petition. He added that, as is evident from the cause
title itself, the impugned order has been filed on I.A.No.66 of
2023 in O.P.No.61 of 2004; and, therefore, that this assumption
was, even prima facie, wrong. He thus prayed that Ext.P5 be set
aside.
3. We do not propose to enter into the merits of the
contentions at this stage; but even on a glance through Ext.P5,
we find some force in the afore submissions of Sri.Jayakumar J.
This is because, even though the learned Judge holds correctly
that the execution Court cannot go beyond the decree, the
petitioner appears to have filed the I.A in the Original Petition
itself, seeking enhancement of the quantum of maintenance.
Whether such I.A is maintainable, or as to if it is deserving of
being granted/allowed etc. are matters that are within the
domain of the learned Family Court, and we do not wish to speak
on it at all.
4. However, as matters now stand, Ext.P5 appears to have
been issued by the learned Family Court, Thiruvananthapuram,
on the assumption that the application of the petitioner has been
filed in the Execution Petition, when, prima facie, it does not
appear to be.
5. In the above circumstances, without speaking on the
merits of any contention, we allow this Original Petition and set
aside Ext.P5; with a consequential direction to the learned
Family Court, Thiruvananthapuram, to reconsider I.A.No.66 of
2023 in O.P.No.61 of 2004, without any avoidable delay.
6. We reiteratingly clarify - that the above directions are
not to mean that the Trial Court must act in a particular manner;
and hence, it can deal with the interim application in any
manner, which it may deem necessary and fit.
That being so ordered, taking into account the advanced
age of the petitioner - who is stated to be over 84 years - we
direct that the afore exercise be completed within a period of
one month from the date of receipt of a certified copy of this
judgment, after offering necessary opportunities to both sides.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
JUDGE
sp/02/08/2024
APPENDIX
PETITIONER'S EXHIBITS:
Exhibit P-1 TRUE COPY OF THE DECREE DATED 31/07/2007
IN O.P.NO.61/2004 OF FAMILY COURT,
THIRUVANANTHAPURAM
Exhibit P-2 TRUE COPY OF THE JUDGMENT DATED
10/11/2017 IN MAT.APPEAL NO.39/2008 OF
THIS HON'BLE COURT
Exhibit P-3 TRUE COPY OF THE I.A.NO.66/2023 DATED
31/3/2023 IN O.P.NO.61/2004 FILED BY THE
PETITIONER BEFORE THE FAMILY COURT,
THIRUVANANTHAPURAM
Exhibit P-4 TRUE COPY OF THE OBJECTION DATED
8/5/2023 IN I.A.NO.66/2023 DATED
31/3/2023 IN O.P.NO.61/2004 FILED BY THE
RESPONDENT BEFORE THE FAMILY COURT,
THIRUVANANTHAPURAM
Exhibit P-5 TRUE COPY OF THE ORDER DATED 19/12/2023
IN I.A.NO.66/2023 DATED 31/3/2023 IN
O.P.NO.61/2004 OF FAMILY COURT,
THIRUVANANTHAPURAM
