MANOJ KUMAR v. DEEPIKASRI

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, ``` ``` 1945 ``` ``` O.P.(FC)NO.92 OF 2023 AGAINST THE ORDER DATED 15.06.2022 IN I.A.NO.5 OF 2021 IN O.P.NO.930 OF 2018 ON THE FILE OF THE FAMILY COURT, PALAKKAD ``` ## **`PETITIONER/RESPONDENT/RESPONDENT:`** ``` MANOJ KUMAR. AGED 39 YEARS, S/O MANI @ MANIKESAVAN, VAZHANCHERI HOUSE, KARIMKULAM, NENMARA. THIRUVAZHIYODU, PALAKKAD, PIN – 678510. ``` ``` BY ADVS. SASI M.R. ``` ``` N.P.SILPA SREEKUMAR K.V. KAVYA KRISHNAN S.SAJIT SANAL DHARMYA M.S ``` ## **`RESPONDENT/PETITIONER/PETITIONER:`** ## **`DEEPIKASRI`** ``` AGED 31 YEARS, D/O MALLIKA, PRIYA SREE, MOOLA, AYALUR, NENMARA, PALAKKAD, PIN – 678508. ``` ``` BY ADVS. ABRAHAM SAMSON LOVELY SAMSON ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL ``` ``` 2 ``` O.P.(FC) No.92 of 2023 ``` HEARING ON 23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` O.P.(FC) No.92 of 2023 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner is the respondent in O.P.No.930 of 2018 on the file of the Family Court, Palakkad, which is one filed by the respondent herein-wife, seeking a decree of divorce to dissolve the marriage solemnised between them. In that original petition, she filed I.A.No.5 of 2021, an application for granting maintenance _pendente lite_ at the rate of Rs.25,000/- per month from the date of filing of the original petition, i.e., 03.10.2018, and Rs.25,000/- towards litigation expenses. The petitioner herein-husband filed a counter opposing the reliefs sought for in that interlocutory application. After considering the rival contentions, the Family Court allowed that interlocutory application, by the order dated 15.06.2022, whereby the petitioner herein is directed to pay maintenance _pendente lite_ to the respondent-wife at the rate of Rs.6,500/- per month, from the date of the petition, i.e., 03.10.2018 and a further sum of Rs.10,000/- towards litigation expenses. Feeling aggrieved, the petitioner is before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside the order ``` 4 ``` O.P.(FC) No.92 of 2023 dated 15.06.2022 of the Family Court, Palakkad in I.A.No.5 of 2021 in O.P.No.930 of 2018. 2. On 27.02.2023, when this original petition came up for admission, this Court issued urgent notice on admission by speed post to the respondent, returnable within three weeks. 3. Heard the learned counsel for the petitionerhusband and also the learned counsel for the respondent-wife. 4. The issue that arises for consideration in this original petition is as to whether any interference is warranted on the order of the Family Court dated 15.06.2022 in I.A.No.5 of 2021 in O.P.No.930 of 2018, whereby the respondent-wife is granted maintenance _pendente lite_ at the rate of Rs.6,500/- per month from the date of the petition, i.e., 03.10.2018 and a sum of Rs.10,000/- towards litigation expenses. 5. The reasoning of the Family Court in paragraph 5 of the order dated 15.06.2022 in I.A.No.5 of 2021 in O.P.No.930 of 2018 reads thus: “5. The point to be considered is that whether the petitioner is entitled to maintenance pendente lite and litigation expenses? Section 24 of the Hindu Marriage Act permits the wife or husband, as the case may be, to seek for grant of maintenance pendente lite and litigation expenses. In this matter, the petitioner has ``` 5 ``` O.P.(FC) No.92 of 2023 specifically contended that the respondent is working abroad and getting salary of Rs.1,50,000/-. The fact as to the salary is denied by the respondent. However, the respondent has admitted that he is abroad. The respondent filed the counter statement, which is duly attested by the Consulate General of India, Dubai and it further corroborates the presence of respondent abroad. Though the respondent has contended that the petitioner is presently working at Karuna Medical College, Chittur as a Nursing Tutor and she is getting salary around Rs. 45,000/- per month, admittedly there is no evidence to prove the said facts. The petitioner has categorically stated that she has no job at present and no income. In such circumstances, even if it is presumed that the respondent is not having any job, even then he is legally duty bound to maintain his wife. More over, there is no evidence to show that the petitioner at present has job in her hand.” 6. Along with this original petition, the petitioner has placed on record various documents, i.e., Exts.P4 to P13, in support of the contentions raised in this original petition against the order dated 15.06.2022 in I.A.No.5 of 2021 in O.P.No.930 of 2018. None of those documents were before the Family Court when the said court passed the order dated 15.06.2022 in I.A.No.5 of 2021. In an original petition filed under Article 227 of the Constitution of India, invoking the supervisory ``` 6 ``` O.P.(FC) No.92 of 2023 jurisdiction, the petitioner cannot rely on any such documents, since none of those documents were before the Family Court. 7. 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. 8. In **Shalini Shyam Shetty v. Rajendra Shankar** **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 ``` O.P.(FC) No.92 of 2023 ## 9. 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 well established principles of law. The exercise of jurisdiction must be within the 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. 10. 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 ``` 8 ``` O.P.(FC) No.92 of 2023 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. 11. 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 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. 12. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot ``` 9 ``` O.P.(FC) No.92 of 2023 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 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. 13. Viewed in the light of the law laid down in the decisions referred to supra, the reasoning of the Family Court in paragraph 5 of the impugned order dated 15.06.2022 for granting maintenance pendente lite at the rate of Rs.6,500/per month and a sum of Rs.10,000/- as litigation expenses to the respondent herein-wife, which cannot be said to be either ``` 10 ``` O.P.(FC) No.92 of 2023 perverse or patently illegal, warrant no interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. However, we notice that the Family Court committed a material irregularity while granting maintenance pendente lite with effect from 03.10.2018, in an interlocutory application, i.e., I.A.No.5 of 2021 filed on 11.11.2021. Therefore, the impugned order to that extent is set aside, thereby modifying the order dated 15.06.2022 of the Family Court, Palakkad in I.A.No.5 of 2021 in O.P.No.930 of 2018, as one granting maintenance pendente lite to the respondent herein-wife with effect from the date of that interlocutory application, i.e., 11.11.2021. This original petition is disposed of as above. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- dkr ``` 11 ``` O.P.(FC) No.92 of 2023 ## **`APPENDIX OF OP (FC) 92/2023`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 THE CERTIFIED COPY OF THE ORDER DATED 15TH JUNE 2022 IN IA 05/2021 IN O.P.NO. 930/2018 ON THE FILE OF THE HONOURABLE FAMILY COURT, PALAKKAD ``` - **`EXHIBIT P2 A TRUE COPY OF THE O.P.NO. 930/2018 ON THE FILE OF THE HONOURABLE FAMILY COURT, PALAKKAD`** - **`EXHIBIT P2(A) A TRUE COPY OF THE IA 05/2021 IN O.P.NO. 930/2018 ON THE FILE OF THE HONOURABLE FAMILY COURT, PALAKKAD`** - **`EXHIBIT P3 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN IA 05/2021 IN O.P.NO. 930/2018 ON THE FILE OF THE HONOURABLE FAMILY COURT, PALAKKAD`** - **`EXHIBIT P4 A TRUE COPY OF THE SCREENSHOT OF THE EARLIER FACEBOOK BIO OF THE RESPONDENT`** - **`EXHIBIT P4(A) A TRUE COPY OF THE SCREENSHOT OF THE FACEBOOK BIO OF THE RESPONDENT`** - **`EXHIBIT P5 TRUE COPY OF THE RESIGNATION LETTER NIL DATED SUBMITTED BY THE PETITIONER`** - **`EXHIBIT P6 RUE COPY OF RESIDENCE CANCELLATION DATED 24/12/2018 AS PER SPONSOR REQUEST, BY THE DIRECTORATE OF GENERAL RESIDENCY AND FOREIGN AFFAIRS, DUBAI`** - **`EXHIBIT P7 TRUE COPY OF THE CERTIFICATE ISSUED BY GOETHE INSTITUT DATED 29/08/2019`** - **`EXHIBIT P8 TRUE COPY OF THE FLIGHT TICKET DATED 10TH JANUARY 2021`** ``` 12 ``` O.P.(FC) No.92 of 2023 ``` EXHIBIT P9 ``` ``` TRUE COPY OF THE RETURN FLIGHT TICKET DATED 4TH FEBRUARY 2021 ``` ``` EXHIBIT P10 TRUE COPY OF THE SALARY CERTIFICATE DATED 08/08/2022 ISSUED BY THE MANAGING DIRECTOR OF THE COMPANY ``` ``` EXHIBIT P11 ``` - **`TRUE COPY OF THE RESIGNATION LETTER NIL DATED SUBMITTED BY THE PETITIONER`** - **`EXHIBIT P12 TRUE COPY OF THE AIR INDIA FLIGHT TICKET WITH DATE OF ISSUE DATED 8TH DECEMBER 2022`** - **`EXHIBIT P13 TRUE COPY OF THE E- RECIEPT DATED 14/12/2022 OF CANCELLED RESIDENCY`** ``` EXHIBIT P14 TRUE COPY OF THE AFFIDAVIT DATED 26/08/2022, SOWN TO BY THE PETITIONER BEFORE THE CONSULATE GENERAL OF INDIA, AT DUBAI ```