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High Court of KeralaSingle JudgeRevision petition allowed in part; impugned ord...

Abhilash M.V v Soumya Soman and Akshaj Nair (Minor)

Case / Petition Number:RPFC NO. 101 OF 2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C. S. Dias
Judgment Date
2023-11-10
Court Decision / Holding
The revision petition is allowed in part; the order in Cr.M.P. No.16/2020 in MC No.6/2020 is set aside. The revision petitioner and the respondents are directed to appear before the Family Court on 1.12.2023. The revision petitioner shall be given an opportunity to file written objections in Cr.M.P. No.16/2020 and MC No.6/2020 within 30 days. The Family Court shall dispose of Cr.M.P. No.16/2020, in accordance with law and as expeditiously as possible, within 30 days from 1.12.2023, and shall also endeavour to dispose of MC No.6/2020. The Court shall direct the parties to file affidavits of disclosure of assets and liabilities in light of Rajnesh v. Neha and Aditi Alias Mithi v. Jitesh Sharma, and proceed accordingly.
Final Disposition
Revision petition allowed in part; impugned order set aside; opportunity granted to file objections; interim maintenance to continue until fresh disposal; directions issued to dispose of Cr.M.P. No.16/2020 and MC No.6/2020 within specified time, with due regard to asset-disclosure requirements.

Parties to the Case

Appellants / Petitioners

  • Abhilash M.V

Respondents

  • Soumya Soman
  • Akshaj Nair (Minor)

Legal Representation & Advocates

Counsels for Petitioners

  • • Rinny Stephen Chamaparamampil
  • • Anjana S.

Counsels for Respondents

  • • Abraham Samson
  • • Lovely Samson
  • • K. Suresh Kumar

Case Synopsis & Summary

This is a revision petition filed under Section 125 CrPC in the Kerala High Court challenging an interim maintenance order passed by the Family Court, Mavelikkara (MC No.6/2020 with Cr.M.P. No.16/2020). The respondents, being the wife and the son of the revision petitioner, sought maintenance from him during the pendency of the proceedings, claiming a monthly amount of Rs. 7000 for the wife and Rs. 4000 for the minor son. The revision petitioner, a Havildar (Signals) in the Indian Army, contends that he was never served with notice of the maintenance application or the interim application, and that the Family Court proceeded without affording him an opportunity to be heard, relying on submissions by counsel who appeared on his behalf without proper vakalat. The High Court earlier stayed proceedings subject to the petitioner depositing arrears and continuing interim maintenance, and directed a report from the Family Court regarding service of notice. On review, the Court found service of notices to be non-existent, noting that the counsel appeared in the petition without valid vakalat and that the order was passed in the petitioner’s absence. The Court set aside the impugned order, but directed that interim maintenance continue and that the parties be given an opportunity to object, with further disposal directed within 30 days and in compliance with Supreme Court guidance on asset disclosure.

Provisions of Law Cited

Section 125 of the Code of Criminal Procedure

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that he was never served with notice in the maintenance application or the interim Cr.M.P., that a counsel appeared without vakalat and sought time for appearance, and that the Family Court proceeded on that basis, resulting in an order passed in his absence. He asserts his right to contest the petition and seeks setting aside of the impugned order to afford him a fair opportunity to present objections. Given his employment in the Army, he emphasizes the need for due process and proper service of notices before any maintenance directive is issued, especially when the other party is a minor seeking support.

Contentions of Respondents

The respondents contend that maintenance is warranted under Section 125 CrPC, justified by the wife and child’s needs during the subsistence of proceedings. They rely on the existence of a marriage/wedlock relation and the revision petitioner’s obligation to provide support. They urge that interim maintenance is necessary and that proper due process must still be observed, with disposal of the matter in accordance with law.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Rajnesh v. Neha and Another2020 (6) KHC 1Mentioned OnlyCited in the order as a law to keep in mind for asset disclosure, but the decision’s holdings are not directly applied or distinguished in the reasoning of this judgment.
Aditi Alias Mithi v. Jitesh SharmaCrl.Appeal No. 3446/2023Mentioned OnlyCited to guide considerations on asset disclosures, without direct incorporation of its substantive holdings into the judgment’s dispositive reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 ``` ``` RPFC NO. 101 OF 2023 ``` ``` AGAINST THE ORDER IN CRL.MP. NO.16/2020 IN MC 6/2020 OF FAMILY ``` ## **`COURT, MAVELIKKARA`** ## **`REVISION PETITIONER/COUNTER PETITIONER:`** ``` ABHILASH.M.V AGED 40 YEARS S/O. VISWANATHAN, MALICKAL HOUSE, VENPALA.P.O., THIRUVALLA, NOW EMPLOYED AT:HAV. ABHILASH M., HQ COY, 2 CORE SIGNAL REGT. (AREN) C/O. 56 APO, AMBALA, PIN 916 902, PIN - 689114 ``` ``` BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ANJANA S. ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SOUMYA SOMAN AGED 35 YEARS D/O. SOMAN PILLAI, VADAKKEVILAYIL, PONAKAM.P.O., THEKKEKARA VILLAGE, MAVELIKKARA TALUK, PIN - 690107 ``` ``` 2AKSHAJ NAIR (MINOR) AGED 10 YEARS S/O. ABHILASH REPRESENTED BY HIS MOTHER (1ST RESPONDENT), SOUMYA SOMAN, AGED 35 YEARS, D/O. SOMAN PILLAI, VADAKKEVILAYIL, PONAKAM.P.O., THEKKEKARA VILLAGE, MAVELIKKARA TALUK, PIN - 690107 ``` ``` BY ADVS. ABRAHAM SAMSON LOVELY SAMSON(K/86-A/1999) K.SURESH KUMAR (KURATHIKADU)(K/257/1997) ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.P(F.C.) NO. 101 OF 2023 2 ``` ## **Dated this the 10[th] day of November, 2023** ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in Crl.M.P. No.16/2020 in M.C. No.6/2020 of the Family Court, Mavelikara, directing the revision petitioner to pay interim maintenance allowance to the respondents @ Rs.7000/- and Rs.4000/-, respectively, from the date of application (10.01.2020). The revision petitioner is the respondent and the respondents are the petitioners in the above application. ## **Brief facts:** 2. The respondents had filed M.C.No.6/2020 under Section 125 of the Code of Criminal Procedure (‘Code’ for short), claiming monthly maintenance allowance ## **`R.P(F.C.) NO. 101 OF 2023 3`** from the revision petitioner @ Rs.7000/- and Rs.4000/-, respectively. Along with the maintenance application, the respondents also filed Crl.M.P.No.16/2020, for interim maintenance allowance during the pendency of the application, on the allegation that the first respondent is the wife of the revision petitioner and the second respondent is the son born in their wedlock, and the revision petitioner is not maintaining them. The revision petitioner has not received notice in the application. He is working as a Havildar (Signals) in the Indian Army. It is only when he visited his native place in February, 2023, that he came to learn about the proceedings. Dissatisfied with the conduct of the counsel, the revision petitioner got his vakalath relinquished and has appointed another counsel. The revision petitioner was not afforded an opportunity of being heard. Moreover, the first respondent has the sufficient means to maintain herself. The impugned ## **`R.P(F.C.) NO. 101 OF 2023 4`** order is illegal, perverse and improper. Hence, the revision petition. 3. Heard; Sri.Rinny Stephen Chamaparampil, the learned counsel appearing for the revision petitioner and Sri.Abraham Samson, the learned counsel appearing for the respondents. 4. When the revision petition came up for consideration on 20.3.2023, this Court admitted the revision petition and stayed further proceedings in M.C.No.6/2020, subject to the condition that the revision petitioner deposits the arrears of maintenance due to the second respondent and continues to pay interim monthly maintenance allowance @ Rs.4000/- to the second respondent. This Court had called for a report from the Family Court, to ascertain as to whether the revision petitioner was served with notice prior to the passing of the impugned order. 5. Pursuant to the above order, the learned Judge ## **`R.P(F.C.) NO. 101 OF 2023 5`** of the Family Court, by communication dated 27.3.2023, has informed this Court that the order sheet and the records in M.C.No.6/2020 reveal that even before notice was served on the revision petitioner in the application, a counsel named Sri. K.R.Muraleedharan appeared on behalf of the revision petitioner on 13.12.2023 and prayed for time for appearance of the revision petitioner. Accordingly, the application was adjourned to 27.10.2022 and then to 16.12.2022, on which date the impugned order was passed. It is also reported that the counsel failed to file any vakalath. Subsequently he gave his no objection certificate to another counsel named Sri.S. Nidhin, who has now filed a vakalath for the revision petitioner. 6. On a consideration of the assertions in the memorandum of the revision petition, the materials placed on record, and the communication of the ## **`R.P(F.C.) NO. 101 OF 2023 6`** learned Judge of the Family Court, it is evident that the notices in both the M.C as well as Crl.M.P. were not served on the revision petitioner. It is only on the basis of the submission made by a counsel, that the Family Court assumed that the revision petitioner had failed to appear in the application and then passed the impugned order. Thus, I am of the definite view that the revision petitioner has not been granted an opportunity to contest the Crl.M.P. on merits. 7. In the above conspectus, I am of the firm view that the order has to be set aside and the revision petitioner be granted an opportunity to file his objection to the Crl.M.P. No.16/2020 and M.C. No.6/2020, which will do complete justice to both sides. Nonetheless, taking into account that the second respondent is the minor son of the revision petitioner and the revision petitioner does not dispute the paternity, I hold that the interim order should ``` R.P(F.C.) NO. 101 OF 2023 7 ``` continue till a decision is taken in Crl.M.P. No.16/2020. In the result, - (i) The order in Crl. M.P. No.16/2020 in M.C. - No.6/2020 is set aside. (ii) The revision petitioner and the respondents are directed to appear before the Family Court on 1.12.2023. (iii) The revision petitioner shall be given an opportunity to file his written objections both in Crl. M.P. No.16/2020 and M.C. No.6/2020, within 30 days from today. (iv) The Family Court shall keep in mind the law laid down by the Hon’ble Supreme Court in **Rajnesh v. Neha and Another** [2020 (6) KHC 1] and **Aditi Alias Mithi v. Jitesh Sharma** [Crl.Appeal No. 3446/2023], and direct the parties to file the affidavits of disclosure of assets and liabilities. ``` R.P(F.C.) NO. 101 OF 2023 8 ``` (v) The Family Court shall dispose of Crl.M.P. No.16/2020, in accordance with law and as expeditiously as possible, at any rate, within a period of 30 days from 1.12.2023. (vi) The Family Court shall also make an endeavour to dispose of M.C. No.6/2020, in accordance with law and as expeditiously as possible. SD/- **C.S.DIAS, JUDGE** rmm10/11/2023