O.P.(Crl.).381/2020

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942** ## **OP(Crl.).No.381 OF 2020** **MC 101/2017 OF FAMILY COURT,KOZHIKODE** ## **PETITIONER/RESPONDENT IN MC 101/2017:** **KIRAN SREEDHARAN, AGED 42 YEARS S/O. SREEDHARAN, AADHI, PLOST NO.17, T.R.S. COLONY, NEAR GLP SCHOOL, OLAVAKKODE, PALAKKAD-678 002, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, M.DAMODARAN, DEEPAM, T.R.S. COLONY, NEAR GLP SCHOOL, OLAVAKKODE, PALAKKAD-678 002** **BY ADV. SRI.P.T.MOHAN KUMAR** ## **RESPONDENT/PETITIONER IN MC 101/2017:** **SUSHYA AGED 36 YEARS D/O. SIVANANDAN, KRISHNA, MAVILIPARAMBU, P.O.EDAKKADU, KOZHIKODE-673 005** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 02-03-2021, THE COURT ON 04-03-2021 DELIVERED THE FOLLOWING:** ## **O.P.(Crl.).381/2020 2** ## **JUDGMENT** Petitioner is the husband of the respondent, their marriage having been solemnised on 31.08.2014 as per the custom prevailing in Hindu Thiyya community to which they belong. The petitioner is working abroad in Oman. When they were living together, the petitioner went to his place of work abroad and the respondent joined him in Oman on a visiting visa. According to the petitioner, since he did not have the minimum required salary for obtaining a spouse visa, visiting visa alone could be arranged. She had reached Oman on 07.05.2015 and returned on 07.12.2016; as she had overstayed in Oman, he had to pay a fine of 500 Oman Riyal to the authorities. From the very beginning itself the married life was not running smooth. For the present purpose, it is not necessary to detail the areas of differences between the spouses. Suffice it to say that now the spouses are living apart. 2. The respondent moved a M.C. seeking maintenance at Rs.20,000/- per month from the petitioner, before the Family Court, ## **O.P.(Crl.).381/2020 3** Kozhikode. She also filed a separate Original Petition seeking return of gold ornaments from the petitioner. On the other hand, the petitioner has moved a petition for divorce, which also is pending before the Family Court, Kozhikode. The MC and the OP filed by the respondent were clubbed together and evidence was taken. The respondent wife was examined as PW1 and documents were marked as Exts.A1 to A6. The petitioner has given evidence as RW1 and some other witnesses were also examined on his side. The respondent wife filed argument note also and thereafter the Power of Attorney holder of the petitioner moved application for re-opening evidence for the purpose of receiving additional documents. The learned Judge by the Ext.P6 order dated 06.11.2020 dismissed the application for re-opening the evidence. According to the petitioner, the said order is illegal and unsustainable since sufficient opportunity was not given to him to cross-examine the respondent wife with regard to the entries in the Ext.A5 passport and thus, through this Original Petition filed under Article 227 of the Constitution the Ext.P6 order is sought to be set aside and a direction is sought to re-open the ## **O.P.(Crl.).381/2020 4** evidence enabling the husband to adduce further evidence. 3. I heard the learned counsel for the petitioner and also the learned counsel appearing for the respondent. 4. According to the learned counsel for the petitioner, the trial has proceeded on the erroneous premise that there is dispute on the date of departure and arrival of the respondent. In fact, there is no such dispute. Even though the original passport was marked as Ext.A5, endorsements thereon are not legible. He has obtained a certified copy of the same from the Embassy, which would clearly reveal that the respondent had gone abroad on a visiting visa. If the copy of the passport obtained by him is allowed to be produced, he would be able to substantiate his contentions before the trial court that the wife had accompanied him on a visiting visa. 5. On the other hand, the learned counsel appearing for the respondent invited my pointed attention to paragraph 6 of the impugned order and submitted that the original passport of the respondent has already been marked; sufficient opportunity was afforded to the petitioner to cross-examine the respondent. Even when she was cross-examined, the ## **O.P.(Crl.).381/2020 5** document was there, but without using such an opportunity now he cannot be justified in approaching this Court with such a prayer. 6. As noticed earlier, parties are spouses having solemnised their marriage on 31.08.2014. They do not have any child in the wedlock. Evidently the petitioner is working abroad. Application for re-opening evidence was moved in the MC filed by the wife for getting monthly maintenance from the husband. According to the wife, the petitioner is well placed in Oman, having an investor visa, that he has a monthly income of Rs.4 lakhs. The petitioner wants to rebut this plea. According to him, he does not possess any such visa. Referring to Ext.P5 the learned counsel pointed out that being an expatriate, if he is paid a monthly salary of not less than 600 Oman Riyal, he will be able to get a spouse visa, that he does not fall within that category. In other words, the crux of the dispute is an attempt by the husband to make out that his salary falls short of 600 Oman Riyal, that he is not entitled to take his wife with him obtaining a spouse visa. Naturally, the attempt of the wife is to show that the husband is well placed and capable of giving her a monthly ## **O.P.(Crl.).381/2020 6** maintenance of Rs.20,000/- as claimed in the petition. It is not known whether the petitioner has produced his salary certificate before the trial court, which is the best document to prove his claim. 7. Whatever it may be, when a petition is filed under Article 227 of the Constitution, impugning an order passed by a subordinate court, matters to be considered are whether the court had passed the impugned order on an erroneous assumption acting beyond its jurisdiction or had refused to exercise jurisdiction or there is error of law apparent on the face of records, as distinguished from a clear mistake of law. It is the power of superintendence of the High Court for advancing the ends of justice and to undo injustice. The court has to take into consideration balancing of interests and equities. In the process, the look out is whether an order under challenge is perverse and arbitrary resulting in grave injustice or gross failure of justice. This Court as well as the Apex Court has made abundantly clear that the powers of the High Court under Article 227 of the Constitution cannot assume the unlimited prerogative to correct all species of hardships or wrong decisions of error of law or facts. Only in ## **O.P.(Crl.).381/2020 7** cases where there is grave dereliction of duty or flagrant violation of fundamental principles of law and justice the Court would exercise its extraordinary jurisdiction under Article 227 of the Constitution. The power under Article 227 is intended to be exercised most sparingly, only in appropriate cases for the purpose of keeping the subordinate courts within the bounds of their authority and not for correcting mere errors. [See the decisions reported in _Surya Dev Rai v. Ram Chander Rai and others (AIR 2003 SC 3044), Karthiayani and others, etc. v. Ramanathan @ Makkunny and others (AIR 2005 Ker 241) etc._ ]. 8. Having said the law on the point, it does not seem that the petitioner husband is justified in inviting the supervisory jurisdiction of this Court under Article 227 of the Constitution. From the impugned order, it is quite patent that when the respondent was examined as PW1, all the material documents were available, which enabled the petitioner in Original Petition to contradict her with regard to the document. In fact, the petitioner husband seeks to re-open the evidence for the purpose of admitting in evidence copy of Ext.A5, which is already part of the **O.P.(Crl.).381/2020 8** evidence. As rightly pointed out by the learned counsel, no dispute has been raised with regard to the entries in Ext.A5 passport. There was also no contention that endorsements therein were not legible etc. Having failed to make use of the opportunity at the fag end of the proceedings, it does not seem that there are justifiable reasons for re-opening the evidence, which cannot be taken as an act in good faith. I do not find any error of jurisdiction in Ext.P6 order of the trial court warranting interference under Article 227 of the Constitution. To sum up, the petition lacks merit. It is only to be dismissed. Dismissed. No costs. Sd/- **K. HARIPAL JUDGE** okb/02.03.21 //True copy// P.S. to Judge ## **O.P.(Crl.).381/2020 9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PETITION FILED BY THE RESPONDENT IN MC 101/2017 ON THE FILE OF THE FAMILY COURT, KOZHIKODE, FILED ON 07.03.2017** **EXHIBIT P1A TRUE ENGLISH TRANSLATION OF EXHIBIT P1 EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN MC 101/2017, ON 21.05.2018 EXHIBIT P2A TRUE ENGLISH TRANSLATION OF EXHIBIT P2 EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT IN CMP 291/2020 FILED FOR REOPENING THE CASE, DATED 20.10.2020 EXHIBIT P3A TRUE ENGLISH TRANSLATION OF EXHIBIT P3 EXHIBIT P4 TRUE COPY OF THE PETITION FOR RECEIVING DOCUMENTS FILED AS CMP 292/2020 BEFORE THE FAMILY COURT, KOZHIKODE DATED 20.10.2020 EXHIBIT P4A TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P4 EXHIBIT P5 TRUE PRINT OUT OF THE NOTIFICATION OF ROYAL OMAN POLICE, OBTAINED FROM THE OFFICIAL WEBSITE EXHIBIT P6 COMMON ORDER PASSED BY THE FAMILY COURT IN CMP 291/2020 AND CMP 292/2020 DATED 06.11.2020**