Waheeda v. C. NajeeB

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` FRIDAY, THE 19[TH] DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943 ``` ## `OP(CRL.) NO. 451 OF 2021` ``` IN M.P.NO.563/2020 IN M.C.NO.254/2020 OF FAMILY COURT, ERNAKULAM ``` ## `PETITIONER/PETITIONER:` ``` WAHEEDA, AGED 54 YEARS, W/O.C.NAJEEB, RESIDING AT THAMANA, SRM ROAD, PACHALAM P.O., KOCHI- 682 012 ``` ``` BY ADVS.SRI.LIJO JOSEPH SRI.NIDHI SAM JOHN ``` ## `RESPONDENT/RESPONDENT:` ``` C.NAJEEB, AGED ABOUT 60 YEARS, S/O.CHEKKUVINTAVIDE K.K.MOIDU, NAVAF BUNGLAW, MAHAKAVI BHARATHEEYAR ROAD, NEAR YWCA, ERNAKULAM DISTRICT-682 035 ``` ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 19.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P(Crl.)No.451 of 2021 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 19[th ] day of November, 2021`** This petition is filed challenging an order passed by Family Court, Ernakulam (for short ‘the court below’) in M.P.No.563/2020 in M.C.No.254/2020. In the Original Petition the following reliefs are sought: "i. To modify Ext.P16 order dated 24/03/2021 in M.P.No.563/2020 in M.C.No.254/2020 on the file of the Family Court, Ernakulam. ii. To direct the respondent to pay interim maintenance to the petitioner to the tune of Rs.50,000/per month; iii. To direct the Family Court, Ernakulam to issue a warrant against the respondent for non-compliance of Ext.P16 Order dated 24.03.2021; iv. To direct the Family Court, Ernakulam to accept Ext.P17 document produced by the petitioner in evidence. v. To grant such other reliefs that are appropriate and incidental to this Original Petition (Criminal)." 2. The averments of the petitioner was that she has filed M.C.No.254/2020 before the court below seeking maintenance allowance for the reason that her husband abandoned her in her old age after squandering her family assets and money. In the M.C it was further alleged that her husband is currently working as architect and also engaged in some business and she is only a ``` O.P(Crl.)No.451 of 2021 ``` ``` 3 ``` housewife devoid of any income of her own to meet her expenses. Copy of the MC is produced alongwith the petition on hand as Ext.P1. Alongwith the MC the petitioner has filed MP No.563/2020 seeking for interim maintenance allowance, copy of which is also produced as Ext.P2. Copies of the objection and the additional objection filed by the respondent in M.P.No.563/2020 are also produced respectively as Exts.P3 and P4. In the marriage between the parties held on 22.12.1985, three children were born (two daughters and one son) and all of them were also married now. At the time of their marriage in the year 1985, the petitioner was working under Architect Gopakumar as a staff only for a salary of Rs.1,500/-. 3. The petitioner came from a well-off family and 150 sovereigns of gold ornaments and Rs.1,00,000/- were given to her at the time of marriage. 100 sovereigns of gold was also gifted to her on festival occasions by her family. The respondent hails only from a relatively poor background. His family house was mortgaged with a bank and huge amount was due to be paid. The loan arrears was settled later by utilising the money given by the father of the petitioner. Petitioner’s father had also purchased a land and a house was constructed there in the year ``` O.P(Crl.)No.451 of 2021 ``` ``` 4 ``` 1989 for her benefit. 4. It is contended that the respondent was engaged in real estate business and is also involved in construction activities including Avenue Apartments in various places. The relation between the respondent and the petitioner strained from 2013 and that resulted in desertion of the petitioner by the respondent. He also failed to maintain her. Thereafter MC No.28/2014 and MC No.32/2014 had been filed by the petitioner before the Additional Chief Judicial Magistrate Court, Ernakulam under the Domestic Violence Act, 2005 and orders were obtained in her favour. The respondent appealed those in Crl.Appeal No.503/2014 before the District Court and as directed a mediation was attended wherein the issues were settled amicably and culminated in the execution of mediation agreement dated 14.11.2014, copy of which is produced alongwith as Ext.P7. In MC No.446/2019 the Family court awarded a sum of Rs.10,000/- as interim maintenance allowance on 07.07.2020, which order was assailed in OP(Crl.)No.252/2020 by the petitioner for inadequacy of the amount. By judgment dated 16.09.2020 this Court directed the petitioner to file a fresh maintenance case incorporating the new ``` O.P(Crl.)No.451 of 2021 ``` ``` 5 ``` materials gathered by her. Thus MC 252/2020 was filed seeking for a sum of Rs.3,00,000/- towards maintenance allowance and M.P No.563/2020 seeking for Rs.2,00,000/- as interim maintenance allowance. Copy of the judgment in O.P(Crl.) is produced alongwith as Ext.P11. The grievance of the petitioner was that an affidavit was filed by both parties before the Family Court but the affidavit filed by the respondent is full of false statements. The Family Court has passed an order in M.P No.563/2020 directing the respondent to pay Rs.25,000/- as interim monthly maintenance allowance, which is now assailed in the petition on hand. 5. It is contended by the learned counsel that the Family Court has directed in that order to adjust the amount paid by the respondent in the earlier M.P filed in M.C No.446/2019 towards the arrears of maintenance payable in present M.C. It is further contended that though the respondent was a person affluent with satisfactory finance, the Family Court has ordered only Rs.25,000/- as interim monthly maintenance allowance. It is further contended by the learned counsel that despite passing of the impugned order on 24.03.2021 the respondent failed to pay a single pie towards monthly maintenance allowance. ``` O.P(Crl.)No.451 of 2021 ``` ``` 6 ``` Thus she was constrained to file M.P.No.342/2021 before the Family Court, Ernakulam seeking for execution of the order directing interim maintenance allowance. According to the learned counsel though M.P No.342/2021 was filed in M.P No.563/2020 in M.C No.254/2020 on 23.06.2021, despite several postings, execution of the order sought is not materialised. The M.P is now posted to 07.02.2022, that too for filing objection by the counter petitioner. 6. According to the learned counsel, eventhough the impugned order was passed in M.P No.563/2020 on 24.03.2021, payments were not effected by the respondents towards monthly maintenance allowance despite lapse of seven months. Though M.P. No.342/2021 was filed seeking execution, that was also not pursued with effectively. 7. This Court has noticed that in the impugned order, the Family Court has made it clear that the payments made by him in compliance of the order passed in M.P No.1210/2019 in M.C No.446/2019 will be adjusted towards the arrears payable by him to the petitioner towards interim maintenance allowed by the order. M.C No.446/2019 having been dismissed as withdrawn by the petitioner with permission of this Court, the ``` O.P(Crl.)No.451 of 2021 ``` ``` 7 ``` petitioner cannot enjoy the benefit of the amount received under the order. She will not be entitled for the amount received by her in M.P No.1210/2019 filed in the said M.C. The Family Court has rightly ordered the said amount to be adjusted to the maintenance allowance that would be passed in the M.C. now stands filed. This Court is declined to interfere with that for the above reasons. 8. It is true that Rs.25,000/- stands ordered as interim maintenance allowance by the impugned order passed in M.P.No.563/2020. M.C No.446/2019 is pending consideration of the Family Court and a final order of monthly maintenance allowance is yet to be passed therein. Therefore, the petitioner is entitled to adduce evidence to substantiate all her averments in the M.C.No.446/2019 to get a modified sum as monthly maintenance allowance. 9. True that M.P No.342/2021 was filed in a context of failure of the respondent to pay any sum towards interim maintenance allowance. The extract of the proceedings from the Family Court produced by the petitioner would reveal that M.P. was not pursued with effectively by the Family Court, though several postings were over. The case was adjourned by ``` O.P(Crl.)No.451 of 2021 ``` ``` 8 ``` endorsing ‘call on’ and only on 03.11.2021 the case was posted for evidence. Thereafter the case was found posted to 07.02.2022 for objection. It is found that the petitioner has been denied with the benefits of the impugned order, though passed in her favour on 24.03.2021. Much time had already been consumed by the court without pursuing with the M.P, on merits. Despite adjournments of M.P severally, specifically for five occasions, no steps have been taken for executing the order. In the result, O.P.(Crl) stands allowed in part and Family Court, Ernakulam is directed to consider M.P.No.342/2021 with immediate effect. In the event of the restoration of the physical hearing now, the Family Court, Ernakulam shall advance M.P.No.342/2021 to an early date from 07.02.2022 suo moto after duly informing the parties and take all endeavours to execute the order directing payment of interim maintenance allowance to enable the petitioner to enjoy the benefits of the order, as maintenance allowance is something meant for the sustenance of the party claimed it. Sd/- ``` JUDGE ``` ``` MJL ``` ``` O.P(Crl.)No.451 of 2021 ``` ``` 9 ``` ## **`APPENDIX`** ## `PETITIONER’S EXHIBITS` - `EXHIBIT P1 COPY OF THE MAINTENANCE PETITION M.C.NO.254/2020 FILED BY THE PETITIONER BEFORE FAMILY COURT, ERNAKULAM 28/9/2020` - `EXHIBIT P2 COPY OF THE INTERIM PETITION M.P.NO.563/2020 IN M.C.NO.254/2020 FILED BY THE PETITIONER BEFORE FAMILY COURT, ERNAKULAM DATED 28.9.2020` - `EXHIBIT P3 COPY OF OBJECTION IN M.P.NO.563/2020 IN M.C.NO.254/2020 FILED BY THE RESPONDENT DATED 23/11/2020` - `EXHIBIT P4 COPY OF ADDITIONAL OBJECTION IN M.P.NO.563/2020 IN M.C.NO.254/2020 FILED BY THE RESPONDENT DATED 18.02.2021` - `EXHIBIT P5 COPY OF THE PHOTOGRAPHS SHOWING THE LADIES WHO HAVE ILLICIT CONNECTION WITH THE RESPONDENT` - `EXHIBIT P6 COPIES OF MEDICAL RECORDS OF THE PETITIONER` - `EXHIBIT P7 COPY OF THE MEDIATION AGREEMENT DATED 14/11/2014 ALONG WITH ADDITIONAL SETTLEMENT STATEMENT DATED 28.11.2014 ENTERED BETWEEN THE PETITIONER AND THE RESPONDENT` - `EXHIBIT P8 COPY OF THE JUDGMENT DATED 29.11.2014 IN CRL.APPEAL NO.503/2014 PASSED BY THE THIRD ADDITIONAL SESSIONS JUDGE, ERNAKULAM.` - `EXHIBIT P9 COPY OF THE FIR NO.1523/2014 OF ERNAKULAM TOWN NORTH POLICE STATION DATED 18/8/2014` - `EXHIBIT P10 COPY OF THE RENT RECEIPTS (TAX INVOICES) RECEIVED BY THE RESPONDENT DATED 01/02/2020` - `EXHIBIT P11 COPY OF THE JUDGMENT DATED 16/9/2020 IN O.P.(CRL) NO.252/2020 PASSED BY THE HON'BLE HIGH COURT` - `EXHIBIT P12 COPY OF THE PETITIONER'S AFFIDAVIT SHOWING ASSETS AND LIABILITIES DATED 9.2.2021` - `EXHIBIT P13 COPY OF THE RESPONDENT'S AFFIDAVIT SHOWING ASSETS AND LIABILITIES DATED 22.2.2021` ``` O.P(Crl.)No.451 of 2021 ``` ``` 10 ``` - `EXHIBIT P14 COPY OF THE BANK STATEMENT FOR THE PERIOD FROM 1/1/2018 TO 20.2.2021 OF THE PETITIONER SUBMITTED BEFORE FAMILY COURT.` - `EXHIBIT P15` - `COPY OF THE PETITIONER'S ADDITIONAL AFFIDAVIT DATED ON 25.2.2021` - `EXHIBIT P16` - `COPY OF THE ORDER OF FAMILY COURT IN M.P.NO.563/2020 IN M.C.NO.254/2020 DATED 24.3.2021` - `EXHIBIT P17 COPY OF THE PHOTOGRAPH OF THE FIXED DEPOSIT RECEIPT OF THE RESPONDENT WITH PEOPLE'S URBAN CO-OPERATIVE BANK, THRIKKAKARA BRANCH.` - `EXHIBIT P18 COPY OF M.P.NO.342/2021 IN M.P.NO.546/2020 IN M.C.NO.254/2020 OF THE FAMILY COURT, ERNAKULAM DATED 22.6.2021` - `EXHIBIT P19 COPY OF THE OBJECTION FILED BY THE RESPONDENT IN M.P.NO.342/2021 IN M.P.NO.563/2020 IN M.C.NO.254/2020 DATED 02.11.2021` - `EXHIBIT P20 PRINTOUT COPY OF THE COURT SITE PROCEEDINGS IN M.C.NO.254/2020 OF THE FAMILY COURT, ERNAKULAM.` ``` RESPONDENT’S EXHIBITS: NIL ``` ``` TRUE COPY ``` ``` P A TO JUDGE ```