Dileepkumar K.S. v. Swapna Francis

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942** ## **OP(Crl.).No.306 OF 2020** **AGAINST THE ORDER IN MP NO.16/2019 IN MC NO.6/2019 DATED 20-01-2020 OF FAMILY COURT, PALA** ## **PETITIONER:** **DILEEPKUMAR K.S. S/O. SUBRAN, AGED 40 YEARS, KALATH HOUSE, DESOM KARA, KALLETTUMKARA VILLAGE, THRISSUR DISTRICT-680 583.** **BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SHRI.ALEKH THOMAS** ## **RESPONDENTS:** **SWAPNA FRANCIS D/O. FRANCIS, AGED 36 YEARS, THYMURIYIL HOUSE, KIZHATHADIYOOR KARA, LALAM VILLAGE, KOTTAYAM DISTRICT, PIN-686 574.** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 05.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(Crl.).No.306/2020 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------O.P. (Crl.) No.306 of 2020 ---------------------------------------------Dated this the 05[th] day of November, 2020 ## **J U D G M E N T** The prayers in the aforecaptioned Original Petition (Criminal) filed under Article 227 of the Constitution of India are as follows : _“i) set aside Ext.P4 dated 20.01.2020 in Ext.P2 M.P.No.16/2019 in M.C. No.6/2019 of Family Court, Pala;_ _ii) issue such other reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”_ 2. The petitioner is the husband of the respondent. Due to differences of opinion, matrimonial litigative proceedings are pending between the parties. The petitioner/husband has earlier filed the original petition OP No.795/2017 before the Family Court, Irinjalakuda, seeking dissolution of the marriage between the spouses on the ground of adultery. Later, the petitioner’s divorce case has been OP(Crl.).No.306/2020 3 transferred to the Family Court, Pala, where it is pending as O.P. No.84/2018. The respondent/wife has filed Ext.P1 MC No.6/2019 before the Family Court, Pala, seeking maintenance under Sec.125 of the Cr.P.C. at the rate of Rs.15,000/- per month. The respondent/wife has also filed Ext.P2 MP No.16/2019 in the said MC No.6/2019 before the Family Court, Pala, claiming interim maintenance at the rate of Rs.15,000/per month. The petitioner herein has filed Ext.P3 objections to Ext.P2 MP for interim maintenance claims objecting to the same on the ground that the claim for maintenance is barred under Sec.125(4) of the Cr.P.C. on account of the alleged adultery. 3. The complaint of the petitioner is that now the Family Court, Pala, has passed Ext.P4 interim order dated 20.1.2020 on MP No.16/2019 in MC No.6/2019, directing that the petitioner should pay interim maintenance at the rate of Rs.5,000/- from the date of the petition, but without stating any reasons whatsoever therein and without dealing with the preliminary objection of the petitioner. It is this order at Ext.P4 that is under challenge. OP(Crl.).No.306/2020 4 4. The Apex Court has now recently rendered judgment dated 4.11.2020 on Crl.Appeal No.730/2020 (arising out of SLP Crl.No.9503/2018) in the case in _**Rajanesh v. Neha & another**_ [2020(6) KHC 1], wherein comprehensive directions and guidelines are issued to various courts like the Family courts/District courts/Jurisdictional Magistrate Courts concerned dealing with claims and maintenance as per the applicable laws like the Family Courts Act, Sec.125 of the Cr.P.C., Protection of Women from Domestic Violence Act etc., as the case may be, in the matter of consideration of maintenance claims. The final directions issued by the Apex Court in the said judgment in _**Rajanesh**_ ’s case (supra) reads as follows :- ## _**“VI Final Directions**_ _In view of the foregoing discussion as contained in Part B – I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India :_ ## _**(a) Issue of overlapping jurisdiction**_ _To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:_ OP(Crl.).No.306/2020 5 _(i)_ _(ii)_ _where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;_ _it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;_ _(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding._ ## _**(b) Payment of Interim Maintenance**_ _The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country._ ## _**(c) Criteria for determining the quantum of maintenance**_ _For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B – III of the judgment._ _The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case._ ## _**(d) Date from which maintenance is to be awarded**_ _We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B – IV above._ ## _**(e) Enforcement / Execution of orders of maintenance**_ _For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.”_ OP(Crl.).No.306/2020 6 The final direction (b) (supra) deals with the payment of interim maintenance, wherein it has been ordered that an affidavit to disclosure of assets and liabilities annexed as enclosures I, II and III of the said judgment, as may be applicable, shall be filed by both parties in all maintenance claims including pending proceedings before the Family courts/District courts/Magistrate courts, concerned as the case may be, throughout the country. The criteria for determination of quantum of maintenance has also been dealt with in the final direction (c). The matter regarding the date from which maintenance is to be awarded etc., is dealt with in the final direction (d). Though the abovesaid judgment of the Apex Court in _**Rajanesh**_ ’s case (supra) has been rendered on 4.11.2020, it has been specifically ordered by their Lordships of the Apex Court that these directions should be applicable in all maintenance proceedings including the pending proceedings. 5. Therefore, both parties are liable to strictly adhere to the abovesaid guidelines and directions issued by the Apex Court in _**Rajanesh**_ ’s case (supra). Accordingly, the matter would require serious reconsideration at the hands of the OP(Crl.).No.306/2020 7 Family Court and the matter would warrant a remit. 6. From a reading of the impugned Ext.P4 order, it is seen that no reasons has been stated by the Family Court while rendering the impugned order. In that view of the matter, it is ordered that the impugned Ext.P4 order dated 20.1.2020 rendered by the Family Court, Pala, on MP No.16/2019 in MC No.6/2019 in the matter of interim maintenance claim will stand set aside and quashed. 7. Consequently, it is ordered that MP No.16/2019 in MC No.6/2019 will stand remitted to the Family Court, Pala, for consideration and decision afresh. Both parties will file affidavit to disclosure of assets and liabilities annexed as enclosures I, II and III of the judgment of the Apex Court in _**Rajanesh**_ ’s case (supra) as may be applicable and without much delay, preferably within a period of one month from the date of receipt of a copy of this judgment. If the parties want more time, the learned Family Court may consider the same and take into account of the fact that the abovesaid directions have been only issued recently on 4.11.2020 and the plea for time may be considered accordingly. Thereafter, the Family Court will hear both parties. OP(Crl.).No.306/2020 8 8. In the meanwhile, in case the petitioner wants to file any additional objections in relation to the various aspects in respect of the claim for interim maintenance sought in Ext.P2 will be at liberty to do so. 9. The counsel for the petitioner submits that evidence will be required in this case since one of the objections raised by the petitioner herein is on the ground of adultery etc. This Court need not consider the said plea of the petitioner in this proceedings. It is for the petitioner to raise such plea before the Family Court, Pala, and it is for the said court to take a decision on such a plea, if so raised, after hearing both sides. 10. The Family Court, Pala, will thereafter afford reasonable opportunity of being heard to both sides and then to pass orders on Ext.P2 MP No.16/2019 in MC No.6/2019 on the claim for interim maintenance, without much delay, preferably within a period of 6 weeks from the date on which the parties submit their affidavit for disclosure of assets and liabilities, as required in the abovesaid judgment of the Apex Court in OP(Crl.).No.306/2020 9 _**Rajanesh**_ ’s case (supra). 11. It is made clear that this Court had not entered into the merits of the controversy, in any manner, and the impugned Ext.P4 order has been quashed solely on the ground that no reasons are stated in the impugned order and also in order to enable the parties to comply with the directions and orders of the Apex Court in _**Rajanesh**_ ’s case (supra). The Registry will forward copies of the judgment to Family Court, Pala, who is dealing with MC No.6/2019 as well as to the respondent for necessary information. With these observations and directions, the above Original Petition (Criminal) will stand finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** Skk//20112020 OP(Crl.).No.306/2020 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF MC. NO.6/2019 FILED BY RESPONDENT BEFORE THE FAMILY COURT, PALA.** **EXHIBIT P2 TRUE COPY OF M.P.NO.16/2019 IN MC.NO. 6/2019 ON THE FILE OF FAMILY COURT, PALA.** **EXHIBIT P3 TRUE COPY OF OBJECTION FILED BY PETITIONER IN M.P.NO.16/2019.** **EXHIBIT P4 TRUE COPY OF ORDER DATED 20/1/2020 IN M.P. NO.16/19 IN MC NO.6/19 OF FAMILY COURT, PALA.** ## **RESPONDENTS' EXHIBITS: NIL**