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
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
2021 (1) KHC 723
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
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,
Exhibit.P-5 A TRUE COPY OF THE SUMMONS DATED 27/03/2024
ISSUED BY THE HON'BLE FAMILY COURT IN OP
Exhibit.P-6 A TRUE COPY OF THE ORIGINAL PETITION IN OP
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
