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2022 Supreme(Online)(KER) 36946
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN &
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 21ST DAY OF NOVEMBER 2022/30TH KARTHIKA, 1944 MAT.APPEAL NO. 493 OF 2019 AGAINST THE JUDGEMENT DATED 05.04.2019 IN O.P.NO.557 OF
2016 OF THE FAMILY COURT, MUVATTUPUZHA APPELLANT/PETITIONER:
UNNIKRISHNAN ELAYATH.C.N, AGED 46 YEARS S/O.NEELAKANDAN ELAYATH, CHIRAMALAILLAM, PAZHANGANAD KARA, KIZHAKKAMBALAM, VILLAGE, KUNNATHUNADU TALUK.
BY ADVS.K.J.MANU RAJ K.VINAYA RAVI KRISHNAN RESPONDENT/RESPONDENT:
VINEETHA.C.M, D/O.MANOHARAN ELAYATH, CHALAYIL ILLAM, THIRUMARADY, KAKKOOR KARA, MUAVATTUPUZHA TALUK, PIN-686662. BY ADVS.SRI.S.JIJI SRI.A.R.ANI THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 21.11.2022, ALONG WITH Mat.Appeal.391/2021, 416/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN &
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 21ST DAY OF NOVEMBER 2022/30TH KARTHIKA, 1944 MAT.APPEAL NO. 391 OF 2021 AGAINST THE ORDER DATED 09.03.2021 IN I.A.NO.1786 OF 2019 IN O/P.NO.123 OF 2016 OF THE FAMILY COURT, MUVATTUPUZHA APPELLANT/APPLICANT/PETITIONER:
UNNIKRISHNAN ELAYATH C.N, AGED 47 YEARS S/O NEELAKANDAN ELAYATH, RESIDING AT CHIRAMAL ELLAM, PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK, PAZHANGANAD P.O.ERNAKULAM DISTRICT-683 562.
BY ADVS.K.J.MANU RAJ R.RENJITH K.VINAYA RAVI KRISHNAN RESPONDENTS:
VINEETHA C.M, D/O MANOHARAN ELAYATH, RESIDING AT CHALAYIL ELLAM, KAKKOOR, KARA, KAKKOOR P.O., THIRUMARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 662.
BY ADVS.S.JIJI M.M.BABY THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 21.11.2022, ALONG WITH Mat.Appeal.493/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN &
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 21ST DAY OF NOVEMBER 2022/30TH KARTHIKA, 1944 RPFC NO. 416 OF 2015 AGAINST THE ORDER DATED 03.10.2015 IN M.C.NO.18 OF 2015 OF THE FAMILY COURT, MUVATTUPUZHA REVISION PETITIONER:
UNNIKRISHNAN C.N, AGED 45 YEARS S/O. NEELAKANDAN ELAYATH, CHIRAMALA ELLATH, PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE.
BY ADVS.K.J.MANU RAJ K.VINAYA RAVI KRISHNAN RESPONDENTS:
1 VINEETHA C.M, AGED 35 YEAERS, D/O. MANOHARAN ELAYATH, CHALAYIL ELLATH, THIRUMARADY VILLAGE, KAKKOOR KARA, MOOVATUPUZHA TALUK - 686 661.
2 MIDHUN, AGED 9 YEARS (MINOR), S/O. VINEETHA, REPRESENTED BY HIS MOTHER AND GUARDIAN, VINEETHA, THE IST RESPONDENT, CHALAYIL ELLATH, THIRUMARADI VILLAGE, KAKKOOR KARA,MOOVATTUPUZHA.
3 MIDHILESH, AGED 1-1/2 YEARS(MINOR),S/O.VINEETHA, REPRESENTED BY HIS MOTHER AND GUARDIAN VINEETHA, THE IST RESPONDENT, CHALAYIL ELLATH, THIRUMARADI VILLAGE, KAKKOOR KARA, MOOVATTUPUZHA.
BY ADVS.SRI.S.JIJI SMT.M.M.BABY THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21.11.2022, ALONG WITH Mat.Appeal.493/2019 AND CONNECTED CASE, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
['K J MANU RAJ', '', 'K VINAYA', 'RAVI KRISHNAN', 'SRI S JIJI', '', 'SMT M M BABY']
JUDGMENT/ORDER
Anil K. Narendran, J.
Since common issues are raised, these appeals and revision petition are heard together and are being disposed of by this common order/judgment.
2. Mat.Appeal No.493 of 2019:- The appellant is the petitioner in O.P.No.557 of 2016 on the file of the Family Court, Muvattupuzha, which is a petition filed against the respondent herein-wife seeking a decree of divorce on the ground of desertion, invoking the provisions under Section 13(1)(ib) of the Hindu Marriage Act, 1955. By the judgment and decree dated 05.04.2019, the said original petition stands dismissed. Feeling aggrieved, the appellant is before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984.
2.1. On 08.07.2019, when this appeal came up for admission, this Court admitted the matter on file and issued notice by speed post to the respondent.
3. Mat.Appeal No.391 of 2021:- The appellant is the petitioner in O.P.No.123 of 2016 on the file of the Family Court, Muvattupuzha, an original petition seeking permanent custody of two minor children and for appointing him as their guardian, which was disposed of by the judgment and decree dated 11.08.2017, by way of a compromise decree. Thereafter, the appellant-father filed I.A.No.1786 of 2019 in O.P.No.123 of 2016 seeking an order to modify the said decree, by granting him the permanent custody of the minor children. The said application was disposed of by the order dated 09.03.2021 of the Family Court, Muvattupuzha, whereby the mother was directed to give the custody of the minor child, Midhilesh to the father on all second Saturdays from 11.00 a.m. to 3.00 p.m. on the ensuing Sunday. All other terms and conditions stipulated in the compromise decree were ordered to be remain in force. Challenging the said order dated 09.03.2021 in I.A.No.1786 of 2019 in O.P.No.123 of 2016, the appellant is before this Court in this appeal invoking the provisions under Section 19 (1) of the Family Courts Act, 1984.
3.1. On 22.07.2021, when this appeal came up for admission, this Court admitted the matter on file and issued urgent notice to the respondent by speed post.
4. R.P.(FC)No.416 of 2015:- The petitioner is the respondent in M.C.No.18 of 2015, which is an application filed by the respondents herein before the Family Court, Muvattupuzha seeking maintenance, invoking the provisions under Section 125 of the Code of Criminal Procedure, 1973, which was allowed by the order dated 03.10.2015, whereby the respondent-husband was directed to pay a monthly maintenance of Rs.4,000/- to the 1st petitioner-wife, Rs.3,000/- and Rs.1,500/- each to the 2nd and 3rd petitioners- minor children, from the date of petition. The 1st petitioner- wife was allowed to receive the maintenance amount for the 2nd and 3rd petitioners-minor children. Feeling aggrieved by the said order, the petitioner-husband is before this Court in this revision petition, invoking the provisions under Section 19(4)
of the Family Couts Act, 1984.
4.1. On 13.11.2015, when this revision petition came up for admission, this Court admitted the matter on file and issued notice to the respondents. In Crl.M.A.No.6377 of 2015, this Court granted an interim order to keep in abeyance the execution of the impugned order, on condition that the petitioner shall deposit Rs.35,000/- before the court below, within one month and continues to deposit 80% of the maintenance ordered by the court below on or before the 5th of every month. On such deposit, the 1st respondent was granted liberty to withdraw the same.
5. By the order dated 02.11.2021 in Mat.Appeal Nos.493 of 2019 and 391 of 2021 and the order dated 09.11.2021 in R.P.(FC)No.416 of 2015, the matters were referred for mediation and both parties were directed to appear before Ernakulam Mediation Centre, in the premises of this Court, on 17.11.2021. However, the matter could be settled in mediation.
6. On 26.08.2022, when these matters came up for further consideration,
