Anju Antony v. Dr. Wesly K. Abraham and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 ``` ## **`OP(CRL.) NO. 152 OF 2023`** ``` AGAINST THE ORDER DATED 16-12-2022 IN CMP NO.4129/2022 IN MC NO. 32/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOCHI ``` ## **`PETITIONER/APPLICANT:`** ``` ANJU ANTONY AGED 42 YEARS, W/O. WESLY K. ABRAHAM & D/O. SRI.J.ANTONY PUTHENPURACKAL HOUSE, PALLURUTHY P.O. PALLURUTHY, ERNAKULAM, PIN – 682 006. ``` ``` BY ADVS. REJI GEORGE NASEER MOIDU VARNA MANOJ ``` ## **`RESPONDENTS/RESPONDENT & STATE:`** ``` 1DR. WESLY K. ABRAHAM AGED 47 YEARS, S/O. V.K.ABRAHAM FLAT NO.3D, 1ST BLOCK, MATHER ORCHARD VIDYA NAGAR ROAD, KADAVANTHARA, ERNAKULAM., PIN – 682 020. ``` ``` 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031. ``` ``` BY ADVS. ``` ``` ENOCH DAVID SIMON JOEL S.SREEDEV(K/1219/2006) RONY JOSE(K/705/2012) LEO LUKOSE(K/001131/2016) KAROL MATHEWS SEBASTIAN ALENCHERRY(K/126/2010) DERICK MATHAI SAJI(K/1901/2021) ``` ``` VIPIN NARAYAN (SR PP) ``` ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP (Crl) NO.152 OF 2023 2 ``` ## **JUDGMENT** This original petition has been filed challenging Ext.P9 order in CMP No.4129/2022 in M.C No.32/2020 on the file of the Judicial First Class Magistrate Court-II, Kochi. The petitioner in this original petition is the petitioner/applicant in M.C No.32/2020, which is a petition filed under Section 12 of the Protection of Women from Domestic Violence Act. In C.M.P No.1042/2020, filed under Section 23 of the said Act, interim maintenance was claimed at the rate of Rs.60,000/- per month for the petitioner and three children. However, the learned Magistrate did not grant any interim maintenance. 2. Crl.A. No.214/2020 was therefore filed before the Additional Sessions Court-VI, Ernakulam and through Ext.P5 order dated 25-01-2022, the 1[st] respondent was directed to pay maintenance at the rate of Rs.30,000/- for three children from the date of filing of CMP No.1042/2020 till final disposal of the main case. The petitioner challenged that Ext.P5 order, by filing Crl.Rev.Pet. No.254/2022 which was dismissed by Ext.P6 order dated 25-10-2022, finding as under: “5. The paternity of the children is not in dispute. The petitioner is a Dentist. The petitioner being the father of the ``` OP (Crl) NO.152 OF 2023 3 ``` children is legally and morally bound to maintain his children. The only dispute raised by the learned counsel for the petitioner is regarding quantum. It is submitted that the petitioner has now been ousted from the Clinic and he does not have any income. All these matters can be decided in the M.C itself after adducing evidence. All children are students. The quantum was fixed by the Appellate Court taking into account the requirement of the children and the means of the revision petitioner. I do not find any illegality or impropriety in the order passed by the Appellate Court directing the petitioner to pay monthly rent of Rs.10,000/- each to his three children. (Emphasis is mine) Hence, this Crl. Revision Petition is dismissed. The learned Magistrate is directed to dispose of M.C. itself as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this order”. Even after the Crl.Rev.Pet.No.254/2022 was dismissed by this Court through Ext.P6 order, the petitioner has not cared to pay interim maintenance as directed by the Appellate Court in Ext.P5 and confirmed by this Court through Ext.P6. Since no amount was paid by the 1[st] respondent, the petitioner filed CMP No.4129/2022 seeking to strike of the defence of the 1[st] respondent. Ext.P9 order has been passed by the learned Magistrate in C.M.P No.4129/2022 on 16-12-2022, finding that while the defence of the respondent can be struck of for non payment of maintenance, on a perusal of the objection filed by the 1[st] respondent, it is clear ``` OP (Crl) NO.152 OF 2023 4 ``` that the 1[st] respondent had paid a sum of Rs.3,75,000/- and he has further pleaded before the Court that, he does not have sufficient income to pay the balance amount. Thus, according to the learned Magistrate, there is sufficient ground to hold that he is not a willful defaulter and therefore, his defence cannot be stuck of. 3. Sri. Reji George, the learned counsel appearing for the petitioner would submit that the petitioner has studied only upto 12[th] standard. It is submitted that the 1[st] respondent is a dentist by profession and on his own showing he is running a dental clinic. It is submitted that the 1[st] respondent is employing several staff including two or three doctors at his clinic and he is living a luxurious life and he is paying nearly Rs.1,88,210/- as EMI towards various loans availed by him. It is submitted that such a person cannot plead that he has no means to pay Rs.30,000/- for the maintenance of his three children. It is also submitted that, even the 1[st] respondent had admitted a monthly income of Rs.1,45,000/-. Reference is made in this regard to paragraph 18 of Ext.P5 order of the Appellate Court, which is extracted hereunder for easy reference. “18. Moreover, in the income tax return filer by the respondent for the year 2021-22 his admitted total income for the year 2021-22 is only 4,97,550/-. However, in the proof ``` OP (Crl) NO.152 OF 2023 5 ``` affidavit filed by him on 16.11.2021 his monthly income is Rs.1,45,000/- (as item No.3 in clause F of the affidavit). If the admitted monthly income of Rs.1,45,000/- is taken as his correct income, his annual income will come to Rs.17,40,000/-. If so the annual income disclosed in his income tax return is not his correct income. Moreover, as I have already noted above, towards the repayment of the two undisclosed loans he is paying more than Rs.1,22,000/(90,127+32,196) per month. As per the affidavit filed by the respondent he has to pay three EMIs Rs.6,833/-, Rs,20,750/and Rs.38,304/-. The total EMI disclosed by him alone will come to Rs.65,887/-. Along with the same the undisclosed EMIs Rs.32,196/- and 90,127/- are also being paid by him. Thus the total EMI paid by him alone will come to Rs.188,210/-. The above circumstances also lead to the conclusion that the respondent has not disclosed his actual income, in the affidavit filed by him”. Therefore it is submitted that the learned Magistrate committed grave irregularity in dismissing the application filed by the petitioner for striking of the defence of the 1[st] respondent, by casually observing that, since the respondent had paid Rs.3,75,000/- and has pleaded that he does not have sufficient income to pay the balance arrears, the defence of the 1[st] respondent need not be struck of. 4. The learned counsel for the 1[st] respondent would vehemently contend that Ext.P9 order is not liable to be interfered with. It is submitted that the petitioner has an ``` OP (Crl) NO.152 OF 2023 6 ``` excellent case on merits. It is submitted that there is no ground made out for striking of the defence of the 1[st] respondent. It is submitted that the trial of the main M.C is almost complete and therefore the 1[st] respondent may be permitted to continue defending his case without his defence being struck of, as it is very clear that the amount of Rs.30,000/- fixed as interim maintenance by Ext.P5 order of the appellate court is very much on the higher side. It is also submitted that going by the judgment of this Court in **Neethu v. Trijo Joseph; 2022 (4) KLT 207,** which followed the judgment of the Supreme Court in **Rajanesh v. Neha; 2020 (6) KHC 1** , defense can be struck of only if it is found that the failure to pay the maintenance is willful. 5. The learned counsel appearing for the petitioner, in reply, would submit that the amount of Rs.3,75,000/- mentioned in Ext.P9 order was paid before Ext.P6 order was passed by this Court. It is submitted that even after giving credit to the amount of Rs.3,75,000/- paid by the 1[st] respondent, the arrears would come to nearly Rs.7,65,000/- as on 21-09-2023. 6. Having heard the learned counsel for the petitioner and the learned counsel for the 1[st] respondent, I am of the view that the petitioner is entitled to succeed. I am surprised that the learned Magistrate has chosen to casually dismiss the petition ``` OP (Crl) NO.152 OF 2023 7 ``` filed by the petitioner to strike out the defence of the 1[st] respondent, despite the fact that the First Appellate Court had in paragraph Nos.18 and 19 of Ext.P5 order specifically found that the 1[st] respondent had sufficient means. The learned Magistrate also did not care to consider the fact that the said order of the First Appellate Court had been confirmed by this Court through Ext.P6 order in Crl.Rev.Pet.No.254/2022 specifically finding that the 1[st] respondent has the means to pay the interim maintenance. I must say that this is a completely casual attitude on the part of the learned Magistrate and merely because the 1[st] respondent had stated that he had no means to pay the balance of the maintenance directed to be paid by the order of the First Appellate Court, the learned Magistrate refused to strike out the defence of the 1[st] respondent. If the learned Magistrate had cared to consider the findings in Ext.5 order of the First Appellate Court and the order in Crl.R.P.No.254/2022 of this Court, it is clear that there could have been no observation made that the 1[st] respondent had no means to pay the maintenance and therefore the non payment of interim maintenance is not willful. 7. Therefore, Ext.P9 order is set asisde and it is directed that if the 1[st] respondent does not pay the entire amount of interim maintenance payable by him till date of payment within a ``` OP (Crl) NO.152 OF 2023 8 ``` period of one month from today, the defence of the 1[st] respondent shall be struck of and the proceedings shall be continued on that basis. To enable the 1[st] respondent to comply with his order, further proceedings in M.C.No.32/2020 shall stand deferred by a period of one month from today. Registry shall communicate a copy of this judgment to the Judicial First Class Magistrate Court-II, Kochi. **Sd/GOPINATH P. JUDGE** ats ``` OP (Crl) NO.152 OF 2023 9 ``` ## **`APPENDIX OF OP(CRL.) 152/2023`** ## `PETITIONER’S EXHIBITS` - `Exhibit P1 A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE COURT OF THE JUDICIAL FIRSTCLASS MAGISTRATE - II, KOCHI UNDER SECTIONS 12, 18, 19, 20 AND 22 OF THE D.V. ACT` - `Exhibit P2 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE COURT OF THE JUDICIAL FIRSTCLASS MAGISTRATE - II, KOCHI UNDER SECTION 23 OF THE D.V. ACT` - `Exhibit P3 A TRUE COPY OF THE AFFIDAVIT DATED 07.09.2021 FILED BY THE PETITIONER BEFORE THE HON'BLE ADDITIONAL SESSIONS COURT-VI, ERNAKULAM IN CRL.A.NO.214/2020` - `Exhibit P4 A TRUE COPY OF THE AFFIDAVIT DATED 26.10.2020 FILED BY THE 1ST RESPONDENT BEFORE THE HON'BLE ADDITIONAL SESSIONS COURT-VI, ERNAKULAM IN CRL.A. NO. 214/2020` - `Exhibit P5 A TRUE COPY OF JUDGMENT DATED 25.01.2022 IN CRL.A.NO.214/2020 PASSED BY THE HON'BLE ADDITIONAL SESSIONS COURT-VI, ERNAKULAM` - `Exhibit P6 A TRUE COPY OF ORDER DATED 25.10.2022 PASSED BY THIS HON'BLE COURT IN CRL.R.P.NO.254/2022` - `Exhibit P7 A TRUE COPY OF CRL.M.P.NO.4129/2022 FILED BY THE PETITIONER BEFORE THE COURT OF THE JUDICIAL FIRSTCLASS MAGISTRATE - II, KOCHI FOR STRIKING OF THE DEFENCE OF THE 1ST RESPONDENT IN M.C.NO.32/2020` - `Exhibit P8 A TRUE COPY OF 1ST RESPONDENT FILED AN OBJECTION DATED 15.12.2022 TO EXT.P7 PETITION` - `Exhibit P9 A TRUE COPY OF ORDER DATED 16.12.2022 PASSED BY THE COURT OF THE JUDICIAL FIRST-CLASS MAGISTRATE-II, KOCHI IN CRL.M.P.NO.4129/2022 IN M.C.NO.32/2020`