Elizabeth Paul v. Paul Ithappiri

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** ## **OP(Crl.).No.441 OF 2019** **AGAINST THE ORDER/JUDGMENT IN MP 948/2018 DATED 08-05-2019 OF FAMILY COURT,ERNAKULAM** ## **PETITIONER/PETITIONER:** **ELIZABETH PAUL AGED 46 YEARS W/O. PAUL K. ITTAPPIRI, RESIDING AT ALBERT MANSION, HOUSE NO.A-3, PALAM ROAD, VADUTHALA, ERNAKULAM DISTRICT, KOCHI - 23.** **BY ADVS. SRI.T.SANJAY SRI.P.R.JAYAKRISHNAN SRI.PRADEEP KRISHNA SRI.DR.REJI KUMAR.R** ## **RESPONDENT/RESPONDENT:** **PAUL ITHAPPIRI AGED 48 YEARS, KOOLIYATTU HOUSE, CALVARYMOUNT P. O., THANKAMANY VILLAGE, IDUKKI TALUK, IDUKKI - 685 515.** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P. (Crl) No. 441 of 2019 2 ## ALEXANDER THOMAS, J. -----------------------------------O.P. (Crl) No. 441 of 2019 ------------------------------------ Dated this the 4[th] day of November, 2019 ## **JUDGMENT** The prayers in the above Original Petition (Crl) filed under Article 227 of the Constitution of India is as follows: _“......may be pleased to direct the respondent to pay a sum of Rs.25 lakhs as interim monetary relief to the petitioner immediately, pending the final disposal of Original Petition (Criminal).”_ 2. Heard Sri.T.Sanjay, learned counsel appearing for the petitioner (wife) and the learned Prosecutor appearing for the State. It is submitted that _inter alia_ though the respondent herein has been duly served by affixture process on 22-10-2019 as he is now abroad, he has not chosen to enter appearance so far. According to the petitioner, she has been deserted by the respondent herein (husband) since the year 2004 and that she has reliably learnt that he is having extra marital relationship with another women in Iran and that now he is leading immoral relationship with another women who belongs to philippines. According to the petitioner, the respondent herein is employed in Dubai and earning a monthly salary of more than Rs.2.5 O.P. (Crl) No. 441 of 2019 3 Lakhs and that he is a qualified Diploma holder in Engineering etc,. That due to the extreme financial difficulties of the petitioner she was not able to defend her maintenance claim before the Family Court and that which has been dismissed for default and that this Court may order to list all the cases so that the maintenance claim could be decided on merits after hearing both sides. 3. Sri.P.Sanjay, learned counsel appearing for the petitioner has placed reliance on various decisions of Apex Court in support of his contentions, which reads as follows. ## In _**Bhuwan Mohan Singh v. Meena & Ors. [(2015) 6 SCC 353]**_ the Hon'ble Supreme Court held that: _“Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one.”_ ## In _**Dukhtar Jahan v. Mohammed Farooq [(1987) 1 SCC 624],**_ the Supreme Court opined that: _“proceedings under Section 125 of the Code, it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether_ O.P. (Crl) No. 441 of 2019 4 _they are legitimate or illegitimate, to get maintenance in a speedy manner.”_ A three-Judge Bench of the Hon'ble Supreme Court in _**Vimala (K.) v. Veeraswamy (K.)[(1991) 2 SCC 375],**_ while discussing about the basic purpose under Section 125 of the Code, the opined that: _“Section 125 of the Code is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.”_ A two-judge Bench of the Hon'ble Supreme Court in _**Kirtikant D.Vadodaria v. State of Gujarat and another [(1996) 4 SCC 479],**_ while adverting to the dominant purpose behind Section 125 of the Code, ruled that: _“While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc., and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation.”_ ## In _**Chaturbhuj v. Sita Bai [(2008) 2 SCC 316],**_ reiterating the legal position the Supreme Court held: _“Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children.”_ O.P. (Crl) No. 441 of 2019 5 ## In _**Captain Ramesh Chander Kaushal v. Veena Kaushal [(1978) 4 SCC 70]**_ the Court held: _“The maintenance falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves.”_ ## In _**Nagendrappa Natikar v. Neelamma [2013 (3) SCALE 561],**_ the Hon'ble Supreme Court held that: _“The 125 CrPC is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children.”_ ## In _**B**_ . _**Madhuri Goud v. B.Damodar Reddy [(2012)**_ _**12 SCC 693]**_ the Hon'ble Supreme Court held as under:- _“6. The expression “sufficient cause” used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay.”_ The Hon'ble Supreme Court observing that the rules of limitation are not meant to destroy the rights of the parties, in _**N.Balakrishnan v. M.Krishnamurthy [(1998) 7 SCC 123],**_ the Court held as under:- _“11. Rules of limitation are not meant to destroy the_ O.P. (Crl) No. 441 of 2019 6 _rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reasons of legal injury.”_ 4. The petitioner would also place reliance on the conventions on the Elimination of All forms of discrimination against woman. The relevant part of which reads as follows. “ _Recalling that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity,_ _Bearing in mind the great contribution of women to the welfare of the family and to the envelopment of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole,”_ 5. The learned counsel for the petitioner would point out that it is true that there is quite some delay in seeking restoration of the O.P. (Crl) No. 441 of 2019 7 petition for maintenance, which was dismissed for default and it occurred only on account of the fact that the petitioner was not aware of the dismissal and secondly the petitioner did not have the financial capacity for seeking timely legal assistance. Further that the respondent had assured her that he would settle the matter with her, which assurance has been later violated etc,. 6. Taking note of all these facts and circumstances of the case, it is ordered that the impugned Ext.P4 order dated 08-05-2019 rendered by the Family Court, Ernakulam on M.P No.948/2018 in M.C No.66/2019 will stand set aside. The above said M.P No. 949/2018 and M.P No.948/2018 in M.C No.66/2009 will stand remitted to the Family Court for consideration afresh. _Prima facie,_ going by the plight of the petitioner, this Court feels that her claims may have to be decided on merits after hearing both sides, in the Courts, more particularly the Family Courts, have a duty to ensure that the married or divorced woman do not suffer vagrancy and penury. The Family Court will decide on the above said Miscellaneous petitions filed in the M.C afresh, after hearing both sides and in the light of the various contentions urged by the petitioner as stated herein above without any delay. Orders in this O.P. (Crl) No. 441 of 2019 8 regard should be passed by the Family Court without much delay, preferably within six weeks from the date of production of the certified copy of this judgment. With these observations and directions in above O.P(Crl) stands disposed of. **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** KAS O.P. (Crl) No. 441 of 2019 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF MC NO.66 OF 2009 DATED 12.3.2009 PREFERRED BY PETITIONER BEFORE FAMILY COURT, ERNAKULAM.** **EXHIBIT P2** **TRUE COPY OF PETITION MP NO.949/2018 DATED 26.10.2008 PREFERRED BY PETITIONER BEFORE FAMILY COURT, ERNAKULAM TO CONDONE DELAY.** **EXHIBIT P3** **TRUE COPY OF PETITION MP NO.948/2018 PREFERRED BY PETITIONER BEFORE FAMILY COURT, ERNAKULAM TO RESTORE MC 66/2009** **EXHIBIT P4** **THE TRUE COPY OF ORDER DATED 8.5.2019 RECEIVED ON 5.8.2019 IN MP NO.948/2018 OF FAMILY COURT, ERNAKULAM.**