RAJESH K. RAMANCHANDRA Vs. ANILA NAIR

JUDGEMENT

(1.) UNDER challenge in this Original Petition filed by the husband under Article 227 of the Constitution is Ext. P6 order passed by the Family Court, Palakkad. Under Ext. P6 order, the Family Court has dismissed I.A. No. 174/2011 filed by the petitioner. The above I.A. was an application for reviewing an earlier order passed by the Family Court in I.A. No. 1129/2009 on 11.12.2009. I.A. No. 1129/2009 was an application for interim maintenance and litigation expenses. The Family Court, by its order dated 11.12.2009, directed the petitioner to pay interim maintenance of Rs. 2000/ - per mensem pending the main proceedings which is for divorce and also to pay Rs. 5000/ - towards litigation expenses and to pay Rs. 1500/ - whenever the respondent appears before the Family Court for counselling. In I.A. No. 174/2011, it was averred by the petitioner that the order dated 11.12.2009 was secured by the respondent by suppressing material facts. It was stated that contrary to what the respondent has stated she is gainfully employed in Bombay. The Family Court found that I.A. No. 174/2011 was hopelessly barred by limitation. Nevertheless, the court went into the merits of the matter and found that no document whatsoever was produced by the petitioner in the I.A. to substantiate his contention that the respondent is gainfully employed at the time when the order dated 11.12.2009 was passed. Our attention was drawn by Dr. George Abraham, learned counsel for the petitioner to Exts. P3 and P4. Exts. P3 and P4, according to learned counsel, will show that the respondent, who is an I.T. Professional, is drawing around Rs. 40,000/ - per mensem from two employers. Counsel submitted that the observation of the Family Court that the petitioner did not produce any evidence before the Family Court to show that the respondent is employed is incorrect. Counsel submitted that along with I.A. No. 3058/2011, Exts. P3 and P4 were produced before the Family Court. The Family Court did not notice Exts. P3 and P4 order or I.A. No. 3058/2011. Learned counsel also submitted that within three months of obtaining the order dated 11.12.2009 from the Family Court, Palakkad, the respondent approached the Judicial First Class Magistrate Court, Vashi, and obtained Ext. P5 order under which the petitioner is directed to pay interim maintenance of Rs. 3000/ - per mensem to the respondent.

(2.) SHRI . Philip M. Varughese, learned counsel for the respondent submitted that it is not correct to say that Exts. P3 and P4 were produced by the petitioner before the Family Court. He submitted that as the Family Court's order to pay interim maintenance and litigation expenses to the petitioner was not obeyed by the petitioner, the respondent had filed an application (I.A. No. 2388/2010) for an order to strike off the petitioner's pleadings (his objections in the matter of the interim maintenance application). It is during the pendency of that I.A. that the petitioner filed I.A. No. 174/2011, which is an application for review of the order. Application for review ought to have been filed within 30 days. In reply Dr. George Abrahan submitted that though styled as review petition the application was one for variation of the order in the light of Exts. P3 and P4. Learned Judge of the Family Court has taken a highly technical approach in the matter. Having given our anxious consideration to the rival submissions addressed at the Bar, we are of the view that if, as a matter of fact, Exts. P3 and P4 had been produced by the petitioner along with I.A. No. 3058/2011 before Ext. P6 was passed by the Family Court, the Family Court had an obligation to look into Exts. P3 and P4 also before taking a decision in I.A. No. 174/2011. At the same time, we notice that it was only at the prospect of his pleadings being struck off that the petitioner thought in terms of filing I.A. No. 174 /2011 which we construe as an application for variation of the order dated 11.10.2009 and not as a regular petition for review. We are, therefore, inclined to grant relief to the petitioner imposing conditions which, in our opinion, will protect the interest of the respondent to a considerable extent. Mr. Philip M. Varughese, learned counsel for respondent, submitted that on a rough calculation, the arrears of interim maintenance due to the respondent as on today will come to Rs. 1 lakh. We are of the view that as a condition for granting relief, petitioner can be made to pay to the respondent a sum of Rs. 50,000/ -. The result of the above discussion, therefore, is as follows: