# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH**
**WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943**
**OP(CRL.) NO. 309 OF 2021**
**AGAINST THE ORDER/JUDGMENT IN MC 91/2019 OF FAMILY COURT, OTTAPPALAM,**
## **PALAKKAD**
## **PETITIONER/S:**
SRAJUTTY, AGED 36 YEARS S/O. UMMER HAJI, MANNAYANGAL, KANNAMTHODI, CHEMMALASSERY POST, PULAMANTHOLE, PERINTHALMANNA, TALUK, MALAPPURAM DISTRICT 679 323, REPRESENTED BY POWER OF ATTORNEY HOLDER, SUNEER BABU, AGED 33 YEARS, MELEPATTUTHODI HOUSE, VILAYUR P.O. PATTAMBI TALUK, PALAKKAD DISTRICT 679 309. BY ADVS. K.MOHANAKANNAN P.T.SHAHUL HAMEED H.PRAVEEN (KOTTARAKARA)
## **RESPONDENT/S:**
1 SUFAILA, AGED 29 YEARS W/O. SRAJUTTY, PARAKKALLIL HOUSE, KAIPURAM POST, PATTAMBI TALUK, PALAKKAD DISTRICT 679 308. 2 ABHISHY ROSHAN, AGED 11 YEARS (MINOR BOY),
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S/O. SRAJUTTY, PARAKKALLIL HOUSE, KAIPURAM POST, PATTAMBI TALUK, PALAKKAD DISTRICT 679 308. (MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN THE IST RESPONDENT).
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CRL.) NO. 309 OF 2021
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## **JUDGMENT**
In the nature of the order going to be passed in the O.P(Crl.), notice to the respondents is dispensed with.
2. This petition is filed by the respondent in M.C. No.91/2019 challenging an order passed by Family Court, Ottappalam on 30.07.2021 in C.M.P No.386/2021 filed in the M.C. The M.C was filed by the 1[st] respondent raising a claim for monthly maintenance allowance for herself and for and on behalf of the 2[nd] respondent, who is her minor child. In the M.C., trial was commenced and evidence on the side of the petitioner was closed on 30.04.2021. The case was posted by the Family Court for examination of the respondent on 10.05.2021. By that time, second wave of the pandemic has outbroken and consequently lockdown was also declared. Therefore the case was adjourned to 12.07.2021.
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3. The petitioner was working abroad and since he has lost his job consequent to the lock down declared due to the pandemic, he come over to India. Thereafter a fresh employment was obtained by him in Qatar and he left India to join that. During the lockdown declared pursuant to the out break of 2[nd] wave of pandemic due to non-availability of regular transportation by air and his inability to have recourse to emergency flights, the petitioner could not attend the court on 12.07.2021. Accordingly, an application was filed seeking postponement of the trial to the end of December 2021. True copy of the application filed by him for the purpose is Exhibit P3 appended to the petition on hand.
4. Respondents filed objection in the application contending that the petitioner was represented in the M.C by his power of attorney holder and therefore evidence could be
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adduced through him. The true copy of the objection filed by the respondent is appended to the petition on hand as Exhibit P4. Duly considering Exhibits P3 and P4, court below has passed an order on 30.07.2021, true copy of which is Exhibit P5. The order reads :-
_“ Heard both sides. Perused records. The case cannot be adjourned to month of December as prayed by the respondent/petitioner herein. The petitioner herein is directed to file affidavit regarding his assets as per the decision,_ _**Rajnesh v. Neha & Anr., [2020 (6) KHC 1]** within fifteen days from today and serve copy of the affidavit to the original petitioner. The case is adjourned for evidence to 03.09.2021 with order of no further time. This petition is closed accordingly.”_
5. The grievance of Sri.Mohanakannan, the learned counsel for the petitioner was that in an application seeking for postponing the trial of the case that the Family Court has directed him to file an affidavit disclosing his assets and
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liabilities in accordance with the direction issued by the Apex Court in **Rajnesh v. Neha & Anr., [2020 (6) KHC 1],** within 15 days from 30.07.2021 and to serve a copy of it to the original petitioner. According to him, the Family Court is highly unjustified in issuing such a direction and that even in the decision referred to, a mandate of the nature is not there. According to the learned counsel, evidence could be adduced by the power of attorney holder, and the adjournment was sought with a view to appear and adduce evidence in the case personally. According to the learned counsel, the case now stands posted to 03.09.2021 and the remaining time being of short duration, the power of attorney holder could not be supplied with the relevant materials to adduce evidence properly. According to him the petitioner being abroad, he is not in a position to advice the power of attorney holder on relevant aspects of his case in the limited time available so as to enable him to adduce evidence effectively on his behalf.
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6. In the backdrop of the submissions made by the learned counsel for the petitioner, this Court finds that for enabling the power of attorney holder to adduce evidence on behalf of the petitioner, grant of sometime in extension is expedient in the interest of justice. The submission raised by the learned counsel for the petitioner secondly was that dictum laid down in **Rajnesh's case** _supra_ did not mandate the respondent to file an affidavit narrating his assets and liabilities.
7. The Apex Court in **Rajnesh's case** _supra_ has issued certain guidelines and it incorporates in it a direction also to the petitioner to file his objection to the averments in the petition seeking monthly maintenance allowance along with an affidavit disclosing his assets and liabilities. The said direction undoubtedly is mandatory in nature and therefore the Court below is perfectly justified in issuing such a direction. It is immaterial that the direction was issued in an application
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seeking adjournment of the case.
8. Admittedly, the Maintenance Case stands posted for evidence of the petitioner. There is no claim for the petitioner that an affidavit as directed in **Rajnesh's case** _supra_ has already been filed by him alongwith his counter statement. Therefore, in order to enable the court below to have a proper adjudication of the issue of the monthly maintenance allowance payable, the petitioner is bound to comply with the direction to file an affidavit stating all his assets and liabilities. Since, the time granted for doing so is at the verge of expiry, this Court is inclined to grant further time to the petitioner. This court is also inclined to grant time for filing the affidavit directed to be filed by the impugned order.
9. In the result, the O.P(Crl.) is allowed in part and the impugned order is modified by issuing direction to the court below to adjourn the case from 03.09.2021 to any date after
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two weeks, so as to enable the petitioner to comply with the direction to file affidavit and to adduce evidence through the power of attorney holder. The petitioner shall see that his evidence is adduced through power of attorney holder on the next posting date itself, fixed by the court below and shall also see that an affidavit disclosing his assets and liabilities shall also be filed within the said time.
**Sd/-**
**MARY JOSEPH JUDGE**
avs
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## **APPENDIX**
PETITIONER ANNEXURE
EXHIBIT-P1 TRUE COPY OF THE M.C 91/2019 DATED 13/6/2019 BEFORE FAMILY COURT, OTTAPPALAM EXHIBIT-P2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN M.C 91/2019 DATED 21/03/2020 EXHIBIT-P3 TRUE COPY OF THE PETITION FILED BY THE COUNSEL APPEARING FOR THE PETITIONER DURING JULY, 2021 BEFORE THE FAMILY COURT, OTTAPPALAM AS CRIMINAL M.A 386/2021 EXHIBIT-P4 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN CRIMINAL. M.A 386/2021 DATED 27/7/2021 EXHIBIT-P5 TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT, OTTAPPALAM DATED 30/07/2021 IN CRIMINAL. M. A 386/2021 IN M.C 91/2019
RESPONDENT ANNEXURE
NIL
avs //TRUE COPY// P.A TO JUDGE
