O.P.(Crl.) No. 532 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2023-07-10
Court Decision / Holding: The respondent is directed to pay interim maintenance to petitioners 1 to 3 at the rate of Rs.10,000/- per month from the date of the petition. The Family Court shall take earnest efforts to dispose the maintenance case within four months of receipt of a copy of this judgment.
Final Disposition: Interim maintenance ordered of Rs.10,000 per month to petitioners 1-3; direction to dispose the main maintenance case within four months.

Parties to the Case

Appellants / Petitioners

Jyothi Anthraper
Ethan Joseph Tomy
Joanna Maria Tomy

Respondents

Tomy Joseph

Legal Representation & Advocates

Counsels for Petitioners

• C.G. Preetha
• N.G. Anitha
• Dr. Abhilash O.U.

Counsels for Respondents

• Boby Mathew K. Meera (K/587/1991)

Case Synopsis & Summary

This is a Criminal Original Petition (O.P.) at the Kerala High Court, arising from MC No.209/2020 in the Family Court, Ernakulam, concerning maintenance under Section 125 CrPC. Jyothi Anthraper, the first petitioner, and her two minor children, Ethan Joseph Tomy and Joanna Maria Tomy, represented by their mother, seek substantial maintenance from their husband and father, Tomy Joseph. The petition initially sought Rs.50,000 per month for the first petitioner and Rs.25,000 per month for each child, with an interim maintenance prayer, which the Family Court granted as Rs.10,000 per month for each petitioner via Ext.P3. A controversy ensued because Ext.P3 was later alleged to have been handwritten and suo motu corrected to limit relief to petitioners 2 and 3, creating a dispute about the wording and scope of the order. The petition asserts that the court did not follow the Supreme Court guidelines in Rajnesh v. Neha (2021) 2 SCC 324, and that affidavits of disclosure should have been sought before issuing Ext.P3. The respondent contends his income and assets justify the interim grant. The High Court, after examining the report on the order’s alteration, observes the impropriety of the handwritten correction but holds that such illegality cannot defeat the objective of Section 125 CrPC. Ultimately, the Court directs Rs.10,000 per month interim maintenance for all three petitioners and orders the Family Court to finish disposal within four months.

Provisions of Law Cited

Section 125 CrPC

Legal Doctrines & Maxims

Object of Section 125 CrPC – to prevent vagrancy and destitution of neglected wives and children

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners sought substantial maintenance for the first petitioner and the two minors, argued that the interim order (Ext.P3) was wrongly worded and that guidelines from Rajnesh v. Neha (2021) 2 SCC 324 were not followed; they urged affidavits of disclosure to be obtained prior to issuing interim relief; they highlighted the respondent's significant income and assets to justify higher maintenance and contended that the order cannot be interpreted to deprive the first petitioner of support and must be consistently applied to all petitioners.

Contentions of Respondents

The respondent contends that interim maintenance of Rs.10,000 per month for each petitioner is reasonable in light of his income and assets; the pleadings and evidence were considered by the Family Court; arguments suggest the order should stand under the object of Section 125, and that the illegality in Ext.P3's wording does not automatically nullify the interim relief; the respondent argues against enhancing maintenance beyond the interim award.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rajnesh v. Neha	(2021) 2 SCC 324	Positive	The judgment notes Rajnesh v. Neha as prescribing guidelines for interim maintenance and states that the Family Court did not follow these guidelines in Ext.P3; Rajnesh serves as an authority for the procedure to be followed (affidavits of disclosure, etc.).

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 10[TH] DAY OF JULY 2023 / 19TH ASHADHA, 1945 OP(CRL.) NO. 532 OF 2022** **MC 209/2020 OF FAMILY COURT, ERNAKULAM** ## **PETITIONER/S:** 1 JYOTHI ANTHRAPER AGED 36 YEARS W/O. TOMY JOSEPH D/O. KURIAN ANTHRAPER, ANTHRAPER HOUSE, HOUSE NO XI/4/E KARUMALLOOR PANCHAYATH, NEAR JYOTHI NIVAS SCHOOL U.C. COLLEGE P.O., ALUVA ERNAKULAM, PIN - 683102 2 ETHAN JOSEPH TOMY (MINOR) AGED 10 YEARS S/O. TOMY JOSEPH ANTHRAPER HOUSE, HOUSE NO XI/4/E KARUMALLOOR PANCHAYATH, NEAR JYOTHI NIVAS SCHOOL U.C. COLLEGE P.O., ALUVA ERNAKULAM REPRESENTED BY HIS MOTHER 1ST PETITIONER, JYOTHI ANTHRAPER, PIN - 683102 3 JOANNA MARIA TOMY (MINOR) AGED 5 YEARS S/O. TOMY JOSEPH ANTHRAPER HOUSE, HOUSE NO XI/4/E KARUMALLOOR PANCHAYATH, NEAR JYOTHI NIVAS SCHOOL U.C. COLLEGE P.O., ALUVA ERNAKULAM REPRESENTED BY HIS MOTHER 1ST PETITIONER, JYOTHI ANTHRAPER, PIN - 683102 BY ADVS. C.G.PREETHA N.G.ANITHA DR.ABHILASH O.U. ## **RESPONDENT/S:** TOMY JOSEPH AGED 41 YEARS S/O. LATE JOSEPH JOHN SRAMPICAL HOUSE, KUVEMPU ROAD, SHIMOGA KARNATAKA, PIN - 577201 BY ADVS. BOBY MATHEW K.MEERA(K/587/1991) **THIS OP (CRIMINAL) HAVING BEEN FINALLY HERAD ON 21.06.2023, THE COURT ON 10.07.2023 DELIVERED THE FOLLOWING:** O.P.(Crl) No.532 of 2022 -2- ## **JUDGMENT** Dated this the 10[th] day of July, 2023 The petitioners have filed M.C.No.209 of 2020 before the Family Court, Ernakulam seeking maintenance from the respondent, husband of the first petitioner and father of petitioners 2 and 3. In the maintenance case, the first petitioner claimed monthly allowance at the rate of Rs.50,000/- per month for herself and at the rate of Rs.25,000/- per month for petitioners 2 and 3. Along with the maintenance case, the petitioners also filed M.P.No.490 of 2020, seeking interim maintenance at the same rate. By Ext.P3 order, the Family Court directed the respondent to pay Rs.10,000/- each to petitioners 1 to 3 from the date of petition. The court also observed that the claim of petitioner No.1 will be decided after taking evidence. The respondent thereafter filed Ext.P4 petition for clarifying O.P.(Crl) No.532 of 2022 -3- the order to the effect that the respondent is bound to pay maintenance at the rate of Rs.10,000/-, only to petitioners 2 and 3. The petition was filed on the premise that, in the open court, the learned Judge had declared that the respondent need pay maintenance only to petitioners 2 and 3. The petitioners filed Ext.P5 counter affidavit to Ext.P4 petition, contending that there is no mistake in Ext.P3 order and the petition for clarification is filed with the _mala fide_ intention of protracting the payment. While so, the respondent obtained a certified copy of Ext.P3 order containing a direction to pay interim maintenance only to petitioners 2 and 3 at the rate of Rs.10,000/per month. This original petition is filed seeking to enhance the maintenance amount to the extent claimed in the petition for interim maintenance. 2. I heard the learned Counsel for the petitioners and the respondents. O.P.(Crl) No.532 of 2022 -4- 3. In view of the dispute regarding the wording of Ext.P3 order, a report was called from the Family Court. In the report, the incumbent Judge has stated that, on 04.10.2021, his predecessor in office had passed Ext.P3 order. The order was handwritten in the order sheet. On inspection, the order is seen to have been corrected as petitioners 2 and 3, instead of petitioners 1 to 3. Certified copy of Ext.P3 order was issued based on the copy application submitted by the petitioners on 10.11.2021. Later, the respondent submitted a copy application on 26.04.2022 and another certified copy was issued wherein the direction is to pay interim maintenance to respondents 2 and 3 alone. The change in the wording of Ext.P3 occurred since the handwritten order was _suo motu_ corrected by the then officer between 10.11.2021 and 26.04.2022. 4. Even though the manner in which the original order was _suo motu_ corrected, after O.P.(Crl) No.532 of 2022 -5- issuing certified copies of the order to the parties is objectionable, a complaint filed by the petitioner against the then Judge was closed by the High Court, on its administrative side, as the Judge concerned had retired from service. 5. As regards the challenge against Ext.P3 order on merits, I find no justifiable reason having been stated in the order or in the proceedings sheet for declining the claim for interim maintenance raised by the first petitioner. From the records, it is seen that the affidavit disclosing their assets and liabilities was filed by the respondent on 19.04.2022 and by the first petitioner, on 01.08.2022, prior to the submission of affidavits of disclosure by both sides. Pertinently, the respondent had filed his objection to the maintenance case only on 16.12.2022, much after issuance of Ext.P3 order. Hence, the order is passed based on the pleadings in the MC and the arguments of the Counsel on either side. The ## O.P.(Crl) No.532 of 2022 -6- pleadings in the MC is to the effect that the respondent was working as a Senior Integrated Architect in Canadian Tyre Financial Services and drawing a salary of 6850 Canadian dollars, equivalent to Rs.6 lakhs per month. In addition, he was working as the Financial Advisor for the World Financial Group, for a remuneration of 3000 Canadian Dollars. Further, the respondent had landed properties and buildings in Shimoga and Bangalore. The specific case of the first petitioner is that she is not employed and is depending on her parents for sustenance. In such circumstances, the Family Court was not justified in denying interim maintenance to the first petitioner based on the unsubstantiated contentions urged on behalf of the respondent. The Family Court did not also follow the guidelines prescribed by the Supreme Court in _**Rajnesh v. Neha [(2021) 2 SCC 324]**_ , while deciding the claim for interim maintenance. The O.P.(Crl) No.532 of 2022 -7- Family Court ought to have caused the parties to file affidavits of disclosure, before passing Ext.P3 order. In my opinion, the said illegality cannot result in the order being set aside, since decision to that effect will go against the objective of Section 125, which is to prevent vagrancy and destitution of neglected wives and children. For the aforementioned reasons, the original petition is disposed as under; (i) The respondent is directed to pay interim maintenance to petitioners 1 to 3 at the rate of Rs.10,000/- per month from the date of the petition. (ii) The Family Court shall take earnest efforts to dispose the maintenance case within four months of receipt of a copy of this judgment. Sd/- **V.G.ARUN JUDGE** Scl/ -8- ## O.P.(Crl) No.532 of 2022 ## PETITIONER EXHIBITS - EXHIBIT P1 THE TRUE COPY OF THE PETITION IN M.C.NO 209 OF 2020 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE PETITIONERS DATED 24.08.2020 - EXHIBIT P2 THE TRUE COPY OF THE PETITION FOR INTERIM MAINTENANCE IN M.P.NO 490 OF 2020 IN M.C.NO 209 OF 2020 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE PETITIONERS DATED 24.08.2020 - EXHIBIT P3 THE TRUE COPY OF THE ORDER IN M.P.NO 490 OF 2020 IN M.C.NO 209 OF 2020 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM DATED 04.10.2021 - EXHIBIT P4 THE TRUE COPY OF THE PETITION FOR CLARIFICATION IN M.P.NO 389 OF 2022 IN M.C.NO 209 OF 2020 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY THE RESPONDENT DATED 10.05.2022 - EXHIBIT P5 THE TRUE COPY OF THE COUNTER AFFIDAVIT IN M.P.NO 389 OF 2022 IN M.C.NO 209 OF 2020 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY PETITIONERS DATED 01.08.2022 - EXHIBIT P6 THE TRUE COPY OF THE AFFIDAVIT OF ASSETS AND LIABILITIES IN M.C.NO 209 OF 2020 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM FILED BY 1ST PETITIONER DATED 01.08.2022