Joy Thomas v. Nimmy Alphonse

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 5[TH] DAY OF APRIL 2023 / 15TH CHAITHRA, 1945 OP (FC) NO. 112 OF 2023 ``` ``` AGAINST THE ORDER DATED 15.11.2022 IN I.A.NO.35 OF 2019 IN O.P.(DIV.)NO.483 OF 2017 OF FAMILY COURT, KOLLAM ``` ## **`PETITIONER/RESPONDENT/PETITIONER:`** ``` JOY THOMAS, AGED 46 YEARS S/O. MANUEL THOMAS, RESIDING AT KOTTUMVATHUKKAL JERRY LAND, SAKTHIKULANGARA, KOLLAM, PIN - 691581 ``` ``` BY ADVS.O.D.SIVADAS S.SUNIL NARAYANAN ``` ## **`RESPONDENT/PETITIONER/RESPONDENT:`** ``` NIMMY ALPHONSE, AGED 43 YEARS, W/O. JOY THOMAS, RESIDING AT THANKA VILASAM, MATHILIL, THRIKKADAVOOR VILLAGE, KOLLAM, PIN - 691601 ``` ``` BY ADVS.MAYA T S K.A.SUNITHA(K/347/2003) ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 05.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P.(FC)No.112 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner filed O.P.(Div.)No.483 of 2017 before the Family Court, Kollam against the respondent herein-wife, seeking a decree of divorce. In that original petition, I.A.No.35 of 2019 was filed by the respondent-wife seeking interim maintenance to her and also to three minor children, at the rate of Rs.25,000/- each, and a sum of Rs.5,00,000/- as litigation expenses. In that interlocutory application (Ext.P2) the petitioner-husband filed Ext.P3 objection. The wife filed a memo stating that interim maintenance claimed with respect to the minor children is not pressed, as the same stands allowed vide Ext.P1 order dated 20.07.2019 in Crl.M.P.No.259 of 2019 in M.C.No.462 of 2018. After considering the rival contentions, the Family Court, by Ext.P4 order dated 15.11.2022, allowed I.A.No.35 of 2019 in part, and the petitioner-husband is directed to pay monthly maintenance of Rs.10,000/- from the date of application and a further sum of Rs.5,000/- towards litigation expenses. Feeling aggrieved, the petitioner is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 3 O.P.(FC)No.112 of 2023 2. Heard the learned counsel for the petitioner. 3. The learned counsel for the petitioner would contend that in view of the order of the Family Court in Crl.M.P.No.259 of 2019 in M.C.No.462 of 2018, granting interim maintenance at the rate of Rs.7,000/- each to the wife and three minor children, the Family Court, went wrong in granting a further sum of Rs.10,000/- to the respondent-wife towards interim maintenance in O.P.(Div.) and a further sum of Rs.5,000/- as litigation expenses in I.A.No.35 of 2019 in O.P.(Div.)No.483 of 2017. 4. The petitioner-husband filed O.P.(Div.)No.483 of 2017 before the Family Court, Kollam, seeking a decree of divorce. The respondent-wife filed O.P.No.1721 of 2018 before the said court, for declaration of her title and possession of petition schedule item No.1 property and for declaration of title over one-half right in the properties scheduled as item Nos.2 to 4. In the impugned order, the Family Court noticed that the petitioner-husband has amassed wealth out of his business, both in India and abroad. In O.P.No.1721 of 2018, the property is valued at Rs.12 crores. In the said original petition, the case of the wife is that she also has toiled for him in acquiring wealth 4 O.P.(FC)No.112 of 2023 and her property was also shared for the said purpose. The reasoning of the Family Court in paragraph 8 of the impugned order, for granting Rs.10,000/- per month as interim maintenance of the wife and Rs.5,000/- towards litigation expenses, read thus; “8. I have assessed the income of the respondent/ husband on the strength of the pleadings and records in the present case. The respondent has no case that he is maintaining the petitioner/wife. It is to be noted that she also worked along with him for his business. I have also considered the status of the parties. The petitioner worked for the respondent both in India and in UAE. She had lived a life as the wife of a businessman. No doubt, the family was affluent while they were doing business jointly. Hence, I find that an amount of Rs.10,000/- per month as maintenance, from the date of the interim petition to the petitioner, which would meet the ends of justice. So also, she is entitled to get an amount of Rs.5,000/- towards litigation expenses.” 5. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 6. In **Shalini Shyam Shetty v. Rajendra Shankar** 5 O.P.(FC)No.112 of 2023 **Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. ## 7. In **Jai Singh v. Municipal Corporation of Delhi** **[(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the wellestablished principles of law. The exercise of jurisdiction must 6 O.P.(FC)No.112 of 2023 be within well-recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 8. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 9. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only 7 O.P.(FC)No.112 of 2023 supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 10. In view of the law laid down in the decisions referred to supra, the High Court in the exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse 8 O.P.(FC)No.112 of 2023 or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 11. Viewed in the light of the law laid down in the decisions referred to supra, we find absolutely no grounds to interfere with Ext.P4 order dated 15.11.2022 of the Family Court, Kollam in I.A.No.35 of 2019 in O.P.No.483 of 2017, since the reasoning of the said court in that order cannot be said to be either perverse or patently illegal, warranting interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution of Inda. It cannot also be said that the said court has committed a manifest error while passing such an order granting interim maintenance at the rate of Rs.10,000/- per month to the wife. In the result, the original petition fails and the same is accordingly dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** MIN 9 O.P.(FC)No.112 of 2023 ## **`APPENDIX OF OP (FC) 112/2023`** |**`PETITIONER EXHIBITS`**|| |---|---| |**`Exhibit P1`**|**`TRUE COPY OF THE ORDER DATED 20.7.2019`**| ||**`IN CRL. MP NO. 259 /2019 IN MC NO. 462`**| ||**`/2018 ON THE FILE FAMILY COURT,`**| ||**`KOLLAM.`**| |**`Exhibit P2`**|**`TRUE COPY OF THE I.A NO.35/2019 IN`**| ||**`O.P.(DIV.) NO.483 /2017 DATED`**| ||**`5.01.2019 FILED BY THE RESPONDENT`**| ||**`BEFORE THE FAMILY COURT, KOLLAM.`**| |**`Exhibit P3`**|**`TRUE COPY OF THE OBJECTION DATED`**| ||**`21.6.2019 IN IA NO.35/2019 IN`**| ||**`O.P.(DIV.) NO.483 /2017, ON THE FILE`**| ||**`OF THE FAMILY COURT.`**| |**`Exhibit P4`**|**`TRUE COPY OF THE ORDER DATED`**| ||**`15.11.2022 IN I.A. NO.35/2019 IN OP`**| ||**`NO.483/2017 ON THE FILE OF THE HON'BLE`**| ||**`FAMILY COURT, KOLLAM.`**|