P.V Mathew v. Merikkutty Mathew

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945 ``` ## `OP(CRL.) NO. 527 OF 2023` ``` AGAINST THE ORDER DATED 04.04.2023 IN CRL.M.P.NO.98(a)/2022 IN MC 113/2021 OF FAMILY COURT, THIRUVALLA ``` ## `PETITIONER/RESPONDENT:` ``` P.V MATHEW, AGED 72 YEARS, PEKKADAN KUZHIYIL HOUSE, KANAKKARI P.O., MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN – 686632 ``` ``` BY ADVS.P.V.ANOOP PHIJO PRADEESH PHILIP ANTONY THOMAS ANJU R S. S.SREEKUMAR (SR.)(S-571) ``` ## `RESPONDENT/PETITIONER:` ``` MERYKUTTY MATHEW, AGED 62 YEARS, PARAPPURATHU HOUSE, AYIROOR, CHUNKAPPARA P.O., KOTTANGAL VILLAGE, MALLAPALLY TALUK, PATHANAMTHITTA, PIN – 686547 ``` ``` BY ADVS.JOSEPH GEORGE P.A.REJIMON(K/700/2017) NIKITA NAIR C.S.(K/002018/2022) ``` ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(Crl.)No.527/2023 -:2:- Dated this the 22[nd] day of November,2023 ## **J U D G M E N T** The original petition is filed assailing Ext P1 order passed in Crl.M.P.No.98(a)/2022 in M.C.No.113/2021 by the Family Court, Thiruvalla, directing the petitioner to pay the respondent interim maintenance allowance @ Rs.10,000/- per month from the date of petition. 2. The petitioner’s case in the original petition is that, he is the respondent in M.C.No.113/2021 filed by the respondent for an order of maintenance under Section 125 of the Code of Criminal Procedure,1973 (‘Code’, for the sake of brevity). He got married to the respondent on 15.06.2002. The respondent was working as a staff Nurse abroad for 14 years. The respondent has filed O.P.No.165/2020 for a decree for recovery of money before the same Court, alleging that the petitioner has misappropriated her assets. She has O.P.(Crl.)No.527/2023 -:3:- also filed M.C.No.49/2019 before the Court of the Judicial First Class Magistrate, Thiruvalla, under the Protection of Women from Domestic Violence Act, 2005. She has alleged that the petitioner is earning an income of not less than Rs.2,00,000/- per month from different sources. She has no income to maintain herself and requires Rs.40,000/- for her monthly maintenance. The petitioner has resisted the application contending that the respondent is living separately from him without any sufficient cause. The petitioner is aged 72 years and is suffering from hypertension, dementia and walking imbalance. All his properties have been attached by the respondent and he is rendered penniless. The petitioner had to seek permission from the Family Court to lift the attachment before judgment over a portion of his property and, thereafter, he sold the property and underwent O.P.(Crl.)No.527/2023 -:4:- angioplasty. However, he was re-admitted in the hospital for renal problems. Even though the application for interim maintenance was filed on 23.11.2021, the same was pressed for consideration only on 12.07.2022, and the same was allowed, directing the petitioner to pay the respondent monthly maintenance allowance @ Rs.10,000/-. Since the petitioner was not heard, he filed an application to review the order, which was allowed. But, the respondent challenged the said order before this Court in O.P.(Crl.)No.72/2023 and this Court, by order dated 13.02.2023, disposed of the original petition directing the Family Court to dispose of M.C.No.113/2021 within two months, if not, to dispose of the interim maintenance application. The parties have already let in evidence. It is at this stage that the Family Court passed the impugned order disregarding the directions O.P.(Crl.)No.527/2023 -:5:- of this Court. The petitioner does not have the means to the interim maintenance amount. The pay respondent has sufficient means to maintain herself. The impugned order is erroneous and wrong, and is liable to be set aside. Hence, the original petition. 3. Heard; Sri.S.Sreekumar, the learned Senior Counsel appearing for the petitioner and Sri. Joseph George, the learned counsel appearing for the respondent. 4. The respondent had filed M.C.No.113/2021 before the Family Court on 23.11.2021 under Section 125 of the Code for an order of maintenance allowance @ Rs.40,000/- per month. Along with the application, the respondent also filed Crl.M.P.No.98(a)/2022 for interim maintenance. 5. It was the case of the respondent in the application that, she was working as a Staff Nurse -:6:- ## O.P.(Crl.)No.527/2023 abroad for about 14 years. The petitioner misappropriated her entire assets, including her share in her parental properties. On 31.01.2018, the petitioner had threatened to do away with her life, and from then on, she has sought shelter in her sister’s house. The petitioner is earning not less than Rs.2,00,000/- from various sources and he is bound to maintain the respondent @ Rs.40,000/- per month. The petitioner has 12 Acres of landed property and has cultivated rubber and coco plantation. He also has a three storied building in the heart of Kottayam and is doing business in dry cleaning. Hence, the petitioner may be directed to pay interim maintenance to the respondent @ Rs.40,000/- per month. Along with the application, the petitioner also filed an affidavit of disclosure of assets and liabilities as laid down by the Hon'ble Supreme Court in **Rajnesh v. Neha and Anr.** O.P.(Crl.)No.527/2023 -:7:- ## [2020 (6) KHC 1]. 6. The petitioner filed a counter affidavit refuting the allegations in the application. He contended that the respondent is living separately from him without any sufficient cause. He is aged 72 years and is suffering from various ailments. He does not have the means to maintain the respondent. In fact, he had sought the permission of the Family Court and lifted the attachment before judgment, and sold a portion of his property to undergo angioplasty. The respondent has a substantial bank balance and has means to maintain herself. Hence, the application may be dismissed. 7. In the celebrated decision in **Rajnesh** (supra), the Hon'ble Supreme Court has laid down comprehensive procedural and normative directions to deal with maintenance applications, including interim O.P.(Crl.)No.527/2023 -:8:- maintenance applications. In paragraph No.68 of the judgment, it is observed that, despite statutory provisions prescribing the time bound disposal of the applications for interim maintenance, such applications are pending consideration for several years, which defeats the very purpose of the legislation. It is further observed that, an application for interim maintenance is to be decided, on the basis of pleadings, where some amount of guesswork or rough estimation takes place, so as to make a prima-facie assessment of the amount to be awarded. Furthermore, the parties to the lis are directed to file affidavits of disclosure of assets and liabilities in all maintenance applications. However, if the respondent fails to file the reply affidavit of disclosure of assets and liabilities, the courts may strike of his defence or decide the application on the basis of the affidavit filed by the petitioner and the O.P.(Crl.)No.527/2023 -:9:- pleadings on record. 8. Recently, the Hon'ble Supreme Court in **Aditi @ Mithy v. Jithesh Sharma** (Crl.A.No.3446/2023) has directed all Courts in the country to strictly follow with the guidelines laid down by the Hon'ble Supreme Court in **Rajnesh** (supra). 9. When the original petition came up for consideration on 02.11.2023, this Court directed the parties to produce the affidavits of disclosure of assets and liabilities filed by them before the Family Court. 10. Today, the learned counsel appearing for the petitioner has produced the affidavit of disclosure purportedly filed by the petitioner before the Family Court on 16.11.2023 i.e., after the filing of the present original petition. Therefore, it is quite evident that the petitioner has not filed the reply affidavit of assets and liabilities, as per the mandate in **Rajnesh** (supra), O.P.(Crl.)No.527/2023 -:10:- before the consideration of the application. 11. On the contrary, the respondent had filed the affidavit of disclosure of assets and liabilities specifically asserting that the petitioner was earning not less than Rs.2,00,000/- per month from his landed properties and his business. He has 12 Acres of landed property with yielding rubber and coconut trees and he is receiving a substantial amount as interest and rental income from his four storied building. 12. In **Reema Salkan v. Sumer Singh Salkan** [(2019) 12 SCC 303] the Hon'ble Supreme Court has held that a plea of a husband that he does not possess any source of income does not absolve him of his sacrosanct duty to maintain his wife. 13. It is also well-settled that the Courts are permitted to do some guesswork in estimating the income of the respondent and the requirement of the O.P.(Crl.)No.527/2023 -:11:- applicant, while deciding an application for maintenance. 14. The Family Court, on the basis of the pleadings, materials on record and the affidavit of disclosure filed by the respondent, has concluded that the petitioner has the means and the respondent is entitled to interim maintenance @ Rs.10,000/- per month from the date of petition. 15. On a consideration of the averments in the application filed by the respondent for interim maintenance, the counter affidavit filed by the petitioner to the above application and the non filing of the reply affidavit of disclosure of assets and liabilities by the petitioner, I find the interim maintenance awarded by the Family Court to be reasonable and justifiable. 16. Going by the uncontroverted assertions in the O.P.(Crl.)No.527/2023 -:12:- affidavit filed by the respondent, I have no doubt in my mind that the petitioner has the means to pay the said amount. There is no illegality or error in the impugned order warranting interference by this Court by exercising the power of superintendence under Article 227 of the Constitution of India. 17. The learned counsel for the respondent submitted that, as on today, the petitioner has to pay arrears of interim maintenance of 24 months to the respondent. 18. In the light of the law declared in **Rajnesh** (supra), I am of the view that the Family Court is to be directed to proceed with the final determination of M.C. No.113/2021, only after the petitioner pays the arrears of maintenance. 19. In the result, (i) The original petition is dismissed. O.P.(Crl.)No.527/2023 -:13:- ## (ii)Ext P1 order is confirmed. - (iii) The petitioner shall deposit the entire arrears of interim maintenance payable as per Ext P1 order within one month from today. - (iv) If the petitioner fails to comply with the above direction, the Family Court shall follow the procedure laid down in **Rajnesh** (supra) and decide the application. On the other hand, if the petitioner complies with the order, the Family Court shall dispose of M.C.No.113/2021, in accordance with law and as expeditiously as possible, untrammelled by any observations in this judgment. Sd/- ## **C.S.DIAS,JUDGE** DST/22.11.23 //True copy// P.A. To Judge O.P.(Crl.)No.527/2023 -:14:- ## `APPENDIX OF OP(CRL.) 527/2023` ``` PETITIONER EXHIBITS EXHIBIT P1 ``` ``` TRUE COPY OF THE ORDER DATED 04.04.2023 IN CRL.M.P.NO. 98(A)/2022 IN M.C.NO. 113/2021 ON THE FILE OF THE FAMILY COURT, THIRUVALLA ``` ``` EXHIBIT P2TRUE COPY OF THE CERTIFICATES ISSUED BY THE SENIOR NEURO SURGEON DATED 14.06.2022 ``` ``` EXHIBIT P3TRUE THE COPY OF THE CERTIFICATE ISSUED BY THE CARDIOLOGIST OF THE CARITHAS HOSPITAL DATED 24.10.2022 ``` ``` EXHIBIT P4TRUE COPY OF THE DECLARATION STATEMENT MADE BY THE PETITIONER AS WELL AS THE RESPONDENT BEFORE THE FAMILY COURT, THIRUVALLA IN MC NO.113/2021 DATED 16.11.2023 ```