Kerala High Court
Gopala Pillai vs Omana Amma on 1 November, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
2024:KER:81267
O.P.(Crl.) No.466 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
OP(CRL.) NO. 466 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 14.03.2023 IN CMP
NO.434/2022 IN MC NO.336 OF 2018 OF FAMILY COURT, KOLLAM
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PETITIONER/PETITIONER IN CMP/RESPONDENT IN MC:
GOPALA PILLAI, AGED 85 YEARS
S/O NARAYANA PILLAI,
MANAKKAD HOUSE,
PERUMPUZHA P.O,
KOLLAM DISTRICT, PIN - 691 504.
BY ADV JOSE J.MATHEIKAL
RESPONDENT/RESPONDENT IN CMP/PETITIONER IN MC:
OMANA AMMA
AGED 75 YEARS
VALUTHUNDI PUTHENVEEDU,
PAZHANGALAM, NEDUMPANA,
NALLILA P.O,
KOLLAM DISTRICT, PIN - 691 515.
SMT. SREEJA V (PP)
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 01.11.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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O.P.(Crl.) No.466 of 2023
2
BECHU KURIAN THOMAS, J
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O.P.(Crl.) No.466 of 2023
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Dated this the 1st day of November, 2024
JUDGMENT
Petitioner is the former husband of the respondent. He is an
octogenarian and is the respondent in an application for maintenance
filed by his former wife as M.C.No.336/2018 before the Family Court,
Kollam. During the pendency of the aforesaid proceedings, petitioner
questioned the maintainability of the application for maintenance by
filing CMP No.434/2022. However, by the impugned order dated
14.03.2023, the Family Court dismissed the petition. Petitioner challenges
the said order in this original petition.
2. Though notice was issued to the respondent, it was returned with the
endorsement 'unclaimed' and subsequently on 18.08.2023, this Court
declared service of notice on the respondent as sufficient. Thus despite
'service of notice', there is no appearance for the respondent. Hence the
case is taken up for consideration.
3. I have heard Sri. Jose J. Matheikel, the learned counsel for the
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petitioner.
4. M.C.No.336/2018 before the Family Court, Kollam was filed by the
respondent, who was aged 75 at the time of the application claiming
maintenance from the petitioner herein, who was aged 85 in 2018,
claiming monthly maintenance of Rs.7,000/-. In clause 17 of the
application, filed under Section 125(1) Cr.P.C. in the column regarding
any earlier applications filed claiming maintenance, the respondent
specifically mentioned in the negative. Alleging that the respondent had
approached the court after suppressing material particulars, petitioner
filed CMP No. No.434/2022 for dismissing the maintenance case as
according to him an earlier application for maintenance was filed which
was dismissed and thereby the respondent had suppressed the said fact.
The Family Court, however, refused to accept the contention of the
petitioner on the ground that he had failed to produce the order in the
said maintenance case to ascertain the veracity of the contention
advanced.
5. In this context, petitioner had produced Exhibit.P1 which is an order
issued by the District Court, Quilon on 16.11.1983 in OP(HMA)
No.171/1982. In the said judgment, which was inter partes, the learned
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District Judge had observed as follows:- " when she had filed a petition
for separate maintenance, the petitioner had made an offer that he is
willing to maintain her provided she goes and stays with him. Then she
was not prepared. It is only because the learned Magistrate would have
found that there is no justifiable reason for her to refuse that offer that
the learned Magistrate had repudiated her claim for separate
maintenance."
6. The aforesaid observation in a judgment inter partes, cannot be ignored
especially when the said observation indicates that the respondent's
claim for maintenance was rejected by the learned Magistrate earlier.
Though at this distance of time, there are no documents produced by the
petitioner to indicate the reason for such rejection of application for
maintenance, the fact that there was a claim for maintenance filed by
the respondent herein against the petitioner earlier is borne out by an
uncontroverted judgment produced in court. It is, therefore, evident that
the respondent has, in the column provided for giving details regarding
any earlier maintenance claims filed, provided an incorrect statement.
7. Rejection of an earlier application for maintenance certainly has an
implication in a subsequent application for the same relief. Therefore,
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the contention of the petitioner that the present application for
maintenance was filed suppressing material particulars, which goes to the
root of the present claim has to be accepted. The maintenance
application filed by the respondent could not have been hence
entertained. I am satisfied that the proceeding in M.C.No.336/2018 on
the files of the Family Court, Kollam is not maintainable.
8. Accordingly, the impugned order dated 14.03.2023 in CMP No.434/2022
is set aside. It is declared that M.C.No.336/2018 on the files of the
Family Court, Kollam is not maintainable.
This original petition is allowed.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/01/11/2024
2024:KER:81267
APPENDIX OF OP(CRL.) 466/2023
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF JUDGMENT IN OP(HMA)171/1982
BEFORE DISTRICT COURT, QUILON DATED
16.11.1983.
EXHIBIT P2 TRUE COPY OF PETITION IN MC NO 336 OF 2018
BEFORE FAMILY COURT, KOLLAM DATED 27.09.2018
EXHIBIT P3 TRUE COPY OF PETITION DATED 30/9/2022
CHALLENGING MAINTAINABILITY BEFORE FAMILY
COURT, KOLLAM.
EXHIBIT P4 TRUE COPY OF ORDER DATED 14/3/2023 IN CMP NO
434/2022 IN MC NO 336/2023 OF FAMILY COURT,
KOLLAM
