Kerala High Court
Sobha M.R vs Girish on 25 March, 2025
2025:KER:25511
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
OP(CRL.) NO. 701 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 04.06.2024 IN
Crl.A NO.253 OF 2024 OF ADDITIONAL DISTRICT COURT &
SESSIONS COURT - VIII, ERNAKULAM / IV ADDITIONAL MACT,
ERNAKULAM ARISING OUT OF THE ORDER/JUDGMENT DATED IN MC
NO.5 OF 2017 OF JUDICIAL FIRST CLASS MAGISTRATE - VIII,
ERNAKULAM
PETITIONER/PETITIONERS:
1 SOBHA M.R.
AGED 42 YEARS
D/O. V. C. RAGHUNADHA VYDHYAR, MOONNUMOOLAYIL
HOUSE, JAWAHAR NAGAR, KADAVANTHRA P.O.,
ELAMKULAM VILLAGE, KANYANNOOR TALUK,
ERNAKULAM DISTRICT, PIN - 682020
2 ADITHYA GIRISH
AGED 19 YEARS
D/O. GIRISH, C/O. SOBHA M.R., MOONNUMOOLAYIL
HOUSE, JAWAHAR NAGAR, KADAVANTHRA P.O.,
ELAMKULAM VILLAGE, KANYANNOOR TALUK,
ERNAKULAM DISTRICT., PIN - 682020
BY ADVS.
SEBASTIAN CHAMPAPPILLY
GEORGE CLEETUS
M.V.LALU MATHEWS
SWATHI KRISHNA P.H.
2025:KER:25511
O.P.(Crl).No.701 of 2024
:2:
RESPONDENT/RESPONDENT:
1 GIRISH
AGED 47 YEARS
S/O. MANI, EWS, 654 GANDHI NAGAR, SALIM RAJAN
ROAD, KADAVANTHRA, ERNAKULAM DISTRICT, COCHIN-
682 020. NOW RESIDING AT HOUSE NO. 46,
JOURNALIST COLONY, KALOOR P.O., PIN - 682017
2 STATE OF KERALA
REP.BY THE STATE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM., PIN - 682031
BY ADVS.
E.VIJIN KARTHIK
POOJA P.(K/003924/2023)
DEVIPRIYA SATHYASEELAN(K/002841/2022)
SMT. SEENA C (PP)
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
25.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:25511
O.P.(Crl).No.701 of 2024
:3:
C.JAYACHANDRAN, J.
------------------------------------
O.P.(Crl).No.701 of 2024
------------------------------------
Dated this the 25th day of March, 2025
ORDER
The petitioners herein are the wife and daughter
of the 1st respondent. They challenge Ext.P5 Order of the
Sessions Court, Ernakulam, dated 04.06.2024, as per
which, the execution of the Order passed in
M.C.No.5/2017 of the learned Magistrate was suspended
on condition of payment of Rs.7,500/- per month, from
the month succeeding the date of order onwards. The
payment is directed to be made on or before 10 th of every
month.
2. Heard the learned counsel for the petitioners and
the 1st respondent.
3. It is noticed that the Order under challenge
before the learned Sessions Judge is Ext.P2 dated
2025:KER:25511
30.04.2024, which was passed in an application filed
under Section 12 of the Protection of Women from
Domestic Violence Act ('D.V. Act', for short) seeking
reliefs under Sections 18, 19, 20 and 22 of the Act.
M.C.No.5/2017 preferred by the petitioners herein was
allowed and the learned Magistrate, interalia, directed to
pay a maintenance of Rs.5,000/- to the 2nd petitioner
every month from 08.03.2017 onwards. Besides, the
respondent/husband was also directed to pay
maintenance at the rate of Rs.10,000/- per month to the
1st petitioner/wife, which also is to take effect from
08.03.2017 onwards. Reliefs pertaining to restraint from
harassment and return of gold ornaments were also
granted vide Ext.P2. Ext.P2 was challenged before the
Sessions Court, Ernakulam. An interlocutory application
was filed to suspend the execution of Ext.P2 Order. The
same was heard and allowed vide Ext.P5 impugned
Order, whereby the execution was suspended on
2025:KER:25511
condition of payment of Rs.7,500/- per month from the
month succeeding the date of Order.
4. The main grievance of the petitioners is that,
while suspending the execution, the Trial Court has not
considered the arrears of maintenance in accordance
with Ext.P2 Order, as per which, maintenance was
directed to be paid with effect from 08.03.2017 onwards.
Without reckoning the arrears, the direction in Ext.P5 is
to pay a sum of Rs.7,500/- per month from the month
succeeding the date of the Order, without there being
any direction with respect to the arrears. Learned
counsel for the appellant would also submit that, going
by the scheme of the D.V. Act, there is no provision for
passing an interim Order. The jurisdiction conferred is
only to consider and pass Orders in the appeal under
Section 29 of the D.V. Act. Learned counsel for the
appellant would submit that, while there is a provision
under Section 29 to deal with an appeal, there is no
2025:KER:25511
corresponding provision to pass any interim Order by an
Appellate Court while considering an appeal in terms of
Section 29. On facts, learned counsel would submit that
more than Rs.14 lakhs is due from the respondent after
adjusting the amounts already paid and a blanket interim
order in the nature of Ext.P5, that too, with a direction to
pay Rs.7,500/- from the month succeeding the date of
Order, is harsh, illegal and improper.
5. Per contra, the learned counsel for the
respondent would submit that a sum of Rs.3,70,000/- and
a further sum of Rs.1 Lakh were paid before the Family
Court.
6. Despite a specific direction from this Court calling
upon the counsel for the respondent to specify the
arrears, no amount, whatsoever, is stated before this
Court by the respondent. Respondent would offer that,
he can pay a sum of Rs.1 Lakh within a period of one
month.
2025:KER:25511
7. On the question whether a Sessions Court has a
right to pass an interim order while considering an appeal
under the D.V. Act, this Court appointed Sri.Jacob P.Alex
as Amicus Curiae. Learned Amicus invited the attention
of this Court to the judgment in Shalu Ojha v. Prashant
Ojha [(2015) 2 SCC 99], wherein the issue is seen posed
in paragraph no.20. Learned Amicus pointed out that the
Hon'ble Supreme Court noted that there is no express
grant of power on the Sessions Court and that such
power cannot always be presumed to be inherent in
every court. However, the Supreme Court has not
decided the issue since the same has not been argued
before the Court. Learned Amicus then invited the
attention of this Court to a decision on the point by a
learned Single Judge of this Court in Farsana P.S. v.
Razveen Raffique [2024 (6) KHC 508]. In paragraph
no.10, the learned Single Judge concluded that, an
appellate court, while considering an appeal under
2025:KER:25511
Section 29 of the D.V. Act is empowered to grant interim
order during the pendency of the appeal to do justice
between the parties. Learned Amicus would opine that
the view expressed in Farsana (supra) is just proper and
legal and that the same is only to be followed. Finally,
learned Amicus invited the attention of this Court to
another judgment of the Hon'ble Supreme Court in
Savitri w/o Govind Singh Rawat v. Govind Singh
Rawat [(1985) 4 SCC 337], there the issue was whether
a court exercising jurisdiction under Chapter-IX of the
Code of Criminal Procedure has the power to pass interim
orders. The question was answered in the affirmative,
points out the learned Amicus. Thus according to the
learned Amicus, an appellate court has the power to pass
interim orders while considering an appeal under the D.V.
Act.
8. Having heard the learned Amicus, this Court is in
complete agreement with the submissions made. It is
2025:KER:25511
true that there is no specific provision empowering the
Appellate Court to pass an interim Order, similar to the
power under Section 23 to grant interim and ex-parte
Orders conferred on the Magistrate. Section 29 confers
power on a Court of Sessions to deal with an appeal,
which is extracted herebelow:-
"Appeal.--There shall lie an appeal to the Court of
Session within thirty days from the date on which the
order made by the Magistrate is served on the aggrieved
person or the respondent, as the case may be, whichever
is later".
Section 28 prescribes the procedure, stipulating that all
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23
and for offences under Section 31 shall be governed by
the provisions of the Code of Criminal Procedure.
9. It could thus be seen that we are faced with a
situation that there is a provision for an appeal, however,
without a corresponding enabling power for passing
interim Orders. In Shalu Ojha (supra), the question,
though considered, was ultimately was left open to be
2025:KER:25511
decided later. The relevant findings are extracted
herein:-
"Whether the Sessions Court in exercise of its
jurisdiction under Section 29 of the Act has any
power to pass interim orders staying the execution of
the order appealed before it is a matter to be
examined in an appropriate case. We only note that
there is no express grant of power conferred on the
Sessions Court while such power is expressly
conferred on the Magistrate under Section 23. Apart
from that, the power to grant interim orders is not
always inherent in every court. Such powers are
either expressly conferred or implied in certain
circumstances. This Court in Super Cassettes
Industries Ltd. v. Music Broadcast (P) Ltd., examined
this question in detail. At any rate, we do not
propose to decide whether the Sessions Court has
the power to grant interim order such as the one
sought by the respondent herein during the
pendency of his appeal, for that issue has not been
argued before us".
10. In Farsana P.S. v. Razveen Raffique [2024
(6) KHC 508], Shalu Ojha (supra) was referred to in
paragraph no.3, wherein the question as to whether an
Appellate Court under Section 29 of the DV Act has power
2025:KER:25511
to pass interim Order is seen mooted. By a detailed
discussion, the learned Single Judge concluded in
paragraph no.10 that an Appellate Court in terms of
Section 29 of the DV Act is empowered to grant an
interim Order pendente lite.
11. In Savitri (supra), the relevant findings of the
Hon'ble Supreme Court are extracted herein:-
"if an order for payment of interim maintenance is
passed by the court. Every court must be deemed
to possess by necessary intendment all such
powers as are necessary to make its orders
effective. This principle is embodied in the maxim
"ubi aliquid conceditur, conceditur et id sine quo
res ipsa esse non potest" (Where anything is
conceded, there is conceded also anything without
which the thing itself cannot exist). [Vide Earl
Jowitt's Dictionary of English Law, 1959 Edn., p.
1797.] Whenever anything is required to be done
by law and it is found impossible to do that thing
unless something not authorised in express terms
be also done then that something else will be
supplied by necessary intendment".
12. It could thus be seen that the issue is not res
2025:KER:25511
integra and stands considered and covered by the
judgment of this Court in Farsana P.S. (supra), to
which I am in complete agreement. Therefore, the
challenge made in this Original Petition as regards the
power of the Appellate Court to pass an interim order will
stand negated.
13. However, coming to the facts, this Court notice
that, on the one hand the petitioners are claiming
arrears to the extent of Rs.14 Lakhs; on the other, the
respondent is not specifying any amount as to what is
the arrear due, according to the respondent's
calculation. It is the contention of the learned counsel
for the respondent that Rs.7,500/- directed to be paid by
virtue of the impugned Ext.P5 Order is being performed
meticulously, without default. Such payment, if any,
made by the respondent will not serve the purpose. The
Hon'ble Supreme Court in Shalu Ojha (supra) had
thrown ample light into the question as to how an appeal
2025:KER:25511
from a legislation, which is meant for protecting the
rights of women, is to be dealt with. The relevant
findings are contained in paragraph no.23, which is
extracted here below:-
"In a matter arising under a legislation meant for
protecting the rights of women, the High Court should
have been slow in granting interim orders, interfering
with the orders by which maintenance is granted to
the appellant."
14. In the instant case, what has been granted by
the learned Magistrate in terms of Ext.P2 is maintenance
to the tune of Rs.5,000/- to the daughter and Rs.10,000/-
per mensum to the wife with effect from 08.03.2017
onwards. Therefore, an order suspending Ext.P2 Order
should have atleast directed payment of one-half of the
amount as directed in Ext.P2. The stipulation in Ext.P5
impugned Order to the effect that the maintenance has
to be paid from the month succeeding the date of Order
2025:KER:25511
cannot be sustained, especially when substantive
amounts are due towards maintenance, that too with
effect from 08.03.2017 onwards. It has to be
underscored that what has been directed to be paid is
'maintenance', which means the very amount required
to maintain the petitioners, who are none other than the
wife and daughter of the respondent/husband. By virtue
of an interpretative process, the Hon'ble Supreme Court
has already elated the right of maintenance akin to that
of a fundamental right in Apurva @ Apurvo
Bhuvanbabu Mandal v. Dolly & Ors. [2024 KLT
Online 2944 (SC). The above aspect is highlighted only
to underscore the significance of a direction to pay
maintenance, which cannot be interfered with lightly,
except for weighty and lofty reasons.
15. In the circumstances, Ext.P5 Order will stand set
aside. There will be a direction to the Sessions Court to
consider Crl.M.P.No.2310/2024 afresh on merits, as also,
2025:KER:25511
in the light of the findings and observations contained in
this judgment. Needless to say, that while fixing the
amount to be paid by the respondent to the petitioners
as a pre-condition for staying the execution of Ext.P2
Order, the arrears due to the petitioners will necessarily
be borne in mind by the learned Sessions Judge.
This Court places on record its sincere
appreciation to the efforts taken by the learned Amicus
in unfolding the vexed question of a power being read
into, albeit in the absence of an express provision.
The Original Petition will stand allowed as
indicated above.
sd/-
C. JAYACHANDRAN, JUDGE.
Raj.
2025:KER:25511
APPENDIX OF OP(CRL.) 701/2024
PETITIONER EXHIBITS
Exhibit P-1 TRUE COPY OF THE ORDER IN CRL.M.P. NO.
327 OF 2017 DATED 10-03-2017
OF 2017 OF THE JUDICIAL MAGISTRATE OF
THE FIRST CLASS-VIII, ERNAKULAM DATED
30-04-2024
Exhibit P-3 CERTIFIED COPY OF MEMORANDUM OF
CRIMINAL APPEAL NO. 253 OF 2024 DATED
29-05-2024 FILED BEFORE THE HON'BLE
DISTRICT AND SESSIONS COURT AT
ERNAKULAM
Exhibit P-4 CERTIFIED COPY OF CRL. M.P. NO. 2310
OF 2024 IN CRL. APPEAL NO. 253 OF 2024
DATED 29-05-2024 FILED BEFORE THE
HON'BLE DISTRICT AND SESSIONS COURT AT
ERNAKULAM
Exhibit P-5 CERTIFIED COPY OF THE ORDER DATED 04-
06-2024 IN CRL. M.P. NO. 2310 OF 2024
IN CRL. APPEAL NO. 253 OF 2024 OF THE
HON'BLE DISTRICT AND SESSIONS COURT AT
ERNAKULAM
RESPONDENT EXHIBITS
Exhibit R1 THE TRUE COPY OF THE POSTAL RECEIPTS
EVIDENCING THE PAYMENTS MADE
