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Elizabeth Paul vs Paul Ithappiri on 4 November, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941

OP(Crl.).No.441 OF 2019

AGAINST THE ORDER/JUDGMENT IN MP 948/2018 DATED 08-05-2019 OF
FAMILY COURT,ERNAKULAM

PETITIONER/PETITIONER:

ELIZABETH PAUL
AGED 46 YEARS
W/O. PAUL K. ITTAPPIRI, RESIDING AT ALBERT MANSION,
HOUSE NO.A-3, PALAM ROAD, VADUTHALA,
ERNAKULAM DISTRICT, KOCHI – 23.

BY ADVS.
SRI.T.SANJAY
SRI.P.R.JAYAKRISHNAN
SRI.PRADEEP KRISHNA
SRI.DR.REJI KUMAR.R

RESPONDENT/RESPONDENT:

PAUL ITHAPPIRI
AGED 48 YEARS,
KOOLIYATTU HOUSE, CALVARYMOUNT P. O.,
THANKAMANY VILLAGE, IDUKKI TALUK,
IDUKKI – 685 515.

THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 04.11.2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P. (Crl) No. 441 of 2019
2

ALEXANDER THOMAS, J.
————————————
O.P. (Crl) No. 441 of 2019
————————————
Dated this the 4th day of November, 2019

JUDGMENT

The prayers in the above Original Petition (Crl) filed under

SectionArticle 227 of the Constitution of India is as follows:

“……may be pleased to direct the respondent to pay a
sum of Rs.25 lakhs as interim monetary relief to the petitioner
immediately, pending the final disposal of Original Petition
(Criminal).”

2. Heard Sri.T.Sanjay, learned counsel appearing for the

petitioner (wife) and the learned Prosecutor appearing for the State.

It is submitted that inter alia though the respondent herein has been

duly served by affixture process on 22-10-2019 as he is now abroad,

he has not chosen to enter appearance so far. According to the

petitioner, she has been deserted by the respondent herein (husband)

since the year 2004 and that she has reliably learnt that he is having

extra marital relationship with another women in Iran and that now

he is leading immoral relationship with another women who belongs

to philippines. According to the petitioner, the respondent herein is

employed in Dubai and earning a monthly salary of more than Rs.2.5
O.P. (Crl) No. 441 of 2019
3

Lakhs and that he is a qualified Diploma holder in Engineering etc,.

That due to the extreme financial difficulties of the petitioner she

was not able to defend her maintenance claim before the Family

Court and that which has been dismissed for default and that this

Court may order to list all the cases so that the maintenance claim

could be decided on merits after hearing both sides.

3. Sri.P.Sanjay, learned counsel appearing for the petitioner

has placed reliance on various decisions of Apex Court in support of

his contentions, which reads as follows.

SectionIn Bhuwan Mohan Singh v. Meena Ors. [(2015) 6
SCC 353] the Hon’ble Supreme Court held that:

“Be it ingeminated that Section 125 of the Code of Criminal
Procedure (for short “the Code”) was conceived to
ameliorate the agony, anguish, financial suffering of a
woman who left her matrimonial home for the reasons
provided in the provision so that some suitable
arrangements can be made by the Court and she can
sustain herself and also her children if they are with her.
The concept of sustenance does not necessarily mean to
lead the life of an animal, feel like an unperson to be
thrown away from grace and roam for her basic
maintenance somewhere else. She is entitled in law to
lead a life in the similar manner as she would have lived in
the house of her husband. That is where the status and
strata come into play, and that is where the obligations of
the husband, in case of a wife, become a prominent one.”

SectionIn Dukhtar Jahan v. Mohammed Farooq [(1987) 1
SCC 624], the Supreme Court opined that:

“proceedings under Section 125 of the Code, it must be
remembered, are of a summary nature and are intended
to enable destitute wives and children, the latter whether
O.P. (Crl) No. 441 of 2019
4

they are legitimate or illegitimate, to get maintenance in
a speedy manner.”

A three-Judge Bench of the Hon’ble Supreme Court in
Vimala (K.) v. Veeraswamy (K.)[(1991) 2 SCC 375],
while discussing about the basic purpose under Section
125 of the Code, the opined that:

“Section 125 of the Code is meant to achieve a social
purpose. The object is to prevent vagrancy and
destitution. It provides a speedy remedy for the supply of
food, clothing and shelter to the deserted wife.”

A two-judge Bench of the Hon’ble Supreme Court in
SectionKirtikant D.Vadodaria v. State of Gujarat and
another [(1996) 4 SCC 479], while adverting to the
dominant purpose behind Section 125 of the Code,
ruled that:

“While dealing with the ambit and scope of the provision
contained in Section 125 of the Code, it has to be borne in
mind that the dominant and primary object is to give
social justice to the woman, child and infirm parents etc.,
and to prevent destitution and vagrancy by compelling
those who can support those who are unable to support
themselves but have a moral claim for support. The
provisions in Section 125 provide a speedy remedy to
those women, children and destitute parents who are in
distress. The provisions in Section 125 are intended to
achieve this special purpose. The dominant purpose
behind the benevolent provisions contained in Section 125
clearly is that the wife, child and parents should not be
left in a helpless state of distress, destitution and
starvation.”

SectionIn Chaturbhuj v. Sita Bai [(2008) 2 SCC 316],
reiterating the legal position the Supreme Court held:

“Section 125 CrPC is a measure of social justice and is
specially enacted to protect women and children.”
O.P. (Crl) No. 441 of 2019
5

SectionIn Captain Ramesh Chander Kaushal v. Veena
Kaushal [(1978) 4 SCC 70] the Court held:

“The maintenance falls within constitutional sweep of
SectionArticle 15(3) reinforced by SectionArticle 39 of the Constitution
of India. It is meant to achieve a social purpose. The
object is to prevent vagrancy and destitution. It provides
a speedy remedy for the supply of food, clothing and
shelter to the deserted wife. It gives effect to
fundamental rights and natural duties of a man to
maintain his wife, children and parents when they are
unable to maintain themselves.”

SectionIn Nagendrappa Natikar v. Neelamma [2013 (3)
SCALE 561], the Hon’ble Supreme Court held that:

“The 125 SectionCrPC is a piece of social legislation which
provides for a summary and speedy relief by way of
maintenance to a wife who is unable to maintain herself
and her children.”

In B.Madhuri Goud v. B.Damodar Reddy [(2012)
12 SCC 693] the Hon’ble Supreme Court held as
under:-

“6. The expression “sufficient cause” used in Section 5 of
the Limitation Act, 1963 and other statutes is elastic
enough to enable the courts to apply the law in a
meaningful manner which serves the ends of justice. No
hard-and-fast rule has been or can be laid down for
deciding the applications for condonation of delay but
over the years courts have repeatedly observed that a
liberal approach needs to be adopted in such matters so
that substantive rights of the parties are not defeated
only on the ground of delay.”

The Hon’ble Supreme Court observing that the rules of
limitation are not meant to destroy the rights of the
parties, in SectionN.Balakrishnan v. M.Krishnamurthy
[(1998) 7 SCC 123], the Court held as under:-

“11. Rules of limitation are not meant to destroy the
O.P. (Crl) No. 441 of 2019
6

rights of parties. They are meant to see that parties do
not resort to dilatory tactics, but seek their remedy
promptly. The object of providing a legal remedy is to
repair the damage caused by reasons of legal injury.”

4. The petitioner would also place reliance on the conventions

on the Elimination of All forms of discrimination against woman.

The relevant part of which reads as follows.

“Recalling that discrimination against women violates
the principles of equality of rights and respect for human
dignity, is an obstacle to the participation of women, on equal
terms with men, in the political, social, economic and cultural
life of their countries, hampers the growth of the prosperity of
society and the family and makes more difficult the full
development of the potentialities of women in the service of
their countries and of humanity,

Bearing in mind the great contribution of women to the
welfare of the family and to the envelopment of society, so far
not fully recognized, the social significance of maternity and
the role of both parents in the family and in the upbringing of
children, and aware that the role of women in procreation
should not be a basis for discrimination but that the upbringing
of children requires a sharing of responsibility between men
and women and society as a whole,”

5. The learned counsel for the petitioner would point out that it

is true that there is quite some delay in seeking restoration of the
O.P. (Crl) No. 441 of 2019
7

petition for maintenance, which was dismissed for default and it

occurred only on account of the fact that the petitioner was not aware

of the dismissal and secondly the petitioner did not have the financial

capacity for seeking timely legal assistance. Further that the

respondent had assured her that he would settle the matter with her,

which assurance has been later violated etc,.

6. Taking note of all these facts and circumstances of the case,

it is ordered that the impugned Ext.P4 order dated 08-05-2019

rendered by the Family Court, Ernakulam on M.P No.948/2018 in

M.C No.66/2019 will stand set aside. The above said M.P No.

949/2018 and M.P No.948/2018 in M.C No.66/2009 will stand

remitted to the Family Court for consideration afresh. Prima facie,

going by the plight of the petitioner, this Court feels that her claims

may have to be decided on merits after hearing both sides, in the

Courts, more particularly the Family Courts, have a duty to ensure

that the married or divorced woman do not suffer vagrancy and

penury. The Family Court will decide on the above said

Miscellaneous petitions filed in the M.C afresh, after hearing both

sides and in the light of the various contentions urged by the

petitioner as stated herein above without any delay. Orders in this
O.P. (Crl) No. 441 of 2019
8

regard should be passed by the Family Court without much delay,

preferably within six weeks from the date of production of the

certified copy of this judgment.

With these observations and directions in above O.P(Crl)

stands disposed of.

Sd/-

ALEXANDER THOMAS
JUDGE

KAS
O.P. (Crl) No. 441 of 2019
9

APPENDIX
PETITIONER’S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF MC NO.66 OF 2009 DATED
12.3.2009 PREFERRED BY PETITIONER
BEFORE FAMILY COURT, ERNAKULAM.

EXHIBIT P2 TRUE COPY OF PETITION MP NO.949/2018
DATED 26.10.2008 PREFERRED BY
PETITIONER BEFORE FAMILY COURT,
ERNAKULAM TO CONDONE DELAY.

EXHIBIT P3 TRUE COPY OF PETITION MP NO.948/2018
PREFERRED BY PETITIONER BEFORE FAMILY
COURT, ERNAKULAM TO RESTORE MC 66/2009

EXHIBIT P4 THE TRUE COPY OF ORDER DATED 8.5.2019
RECEIVED ON 5.8.2019 IN MP NO.948/2018
OF FAMILY COURT, ERNAKULAM.

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