IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 OP (FC).No. 2113 of 2011(R) ------------------------------------- AGAINST THE ORDER DATED 6.6.2011 IN CRL. MP NO. 663/2010 IN MC.90/2005 of FAMILY COURT, KOTTARAKKARA .................... PETITIONER ------------------ ANIL KUMAR, PULIVILAYIL VEEDU, KANNIMEL NAGER-10, ERAVIPURAM VILLAGE, KOLLAM. BY ADV. SRI.JOHNSON GOMEZ SRI.S.BIJU (KIZHAKKANELA) RESPONDENT(S): ------------------------ SATHEE BAI, POIAKAVILA VEEDU, THUNDANTHALA MURI, NELLIKUNNAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN-691 623. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.K.V.ANIL KUMAR SRI.N.K.SUBRAMANIAN THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN O.P.(FC).NO.2113 OF 2011 R PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 15/06/2007 PASSED BY THE FAMILY COURT, KOTTARAKKARA IN O.P.NO.207/2005, O.P.NO.761/2005 AND M.C.NO.90/2005. EXT.P2 TRUE COPY OF THE PETITION DATED 08/09/2010 AS CMP.NO.663/2010 IN M.C.NO.90/2005. EXT.P3 TRUE COPY OF THE OBJECTION FILED IN CMP.NO.663/2010 IN M.C.NO.90/2005. EXT.P4 TRUE COPY OF THE SETTLEMENT DEED NO.1110/1999 OF KOTTARAKKARA ADDL. SUB REGISTRY OFFICE. EXT.P5 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 11/12/2010 ISSUED BY DR. JOSHY JOHN SURGICAL GASTROENTEROLOGIST, BISHOP BENZIGER HOSPITAL, KOLLAM. EXT.P6 TRUE COPY OF THE ORDER DATED 06/06/2011 IN CRL.M.P.NO.663/2010 IN M.C.NO.90/2005 (MISTAKENLY INDICATED AS 90/2010) PASSED BY THE FAMILY COURT, KOTTARAKKARA. RESPONDENT'S EXHIBITS: NIL. // TRUE COPY// PS TO JUDGE K.M. JOSEPH & A. M. SHAFFIQUE, JJ. ----------------------------------------- O.P.(FC).NO.2113 OF 2011 R ------------------------------------------ Dated this the 11th November, 2011 JUDGMENT K.M. Joseph, J. This is an Original Petition filed under Article 227 of the Constitution of India. Petitioner is the respondent in Crl. M. P. No.663 of 2010 in M. C. No.90 of 2005 on the file of the Family Court, Kottarakkara. Petitioner challenges Ext.P6 which is the order passed in the said Application. 2. Briefly put, the case of the petitioner is as follows: Petitioner was the respondent in M.C. No.90 of 2005 filed by the respondent/wife claiming maintenance. The said claim petition was disposed of granting maintenance at the rate of Rs.400/= per month as per order dated 15.06.2007. Further enhancement of maintenance was allowed by order dated 04.03.2009 in C.M.P.No.923 of 2008. Thereafter, the respondent again filed OP.(FC).NO.2113 OF 2011 R 2 Ext.P2 petition seeking further enhancement of maintenance to Rs.5,000/=. Petitioner filed Ext.P3 objection. In Ext.P3, the petitioner contended that he is suffering from `ulcerates colitis' , a chronic disease. By the impugned order, the Family Court, noting his contention regarding his health condition, directed the Director of Health Service, Thiruvananthapuram to enquire about his health and verify whether he is able to discharge his duty. It was further ordered that in the meanwhile, the District Medical Officer, Pathanamthitta was directed to realise 1/3rd of the petitioner's salary actually paid and to transmit the amount to the court towards maintenance of the respondent/wife. 3. One of the main contentions taken by the petitioner is that the above order was passed without giving any opportunity and without actually conducting any enquiry. Petitioner has a case that the respondent/wife is in possession of forty cents of property and she is deriving income therefrom. We heard the learned counsel for the respondent/wife also. There is no dispute that the order is OP.(FC).NO.2113 OF 2011 R 3 passed without conducting any enquiry as such. The direction to realise 1/3rd of the salary is also not based on any enquiry, submits the learned counsel for the petitioner. 4. In the circumstances of the case, we feel that the petitioner is justified in approaching this Court under Article 227. In such circumstances, we allow the Original Petition and we set aside Ext.P6 order and direct the Family Court, Kottarakkara to take up Crl. M. P. No.663 of 2010 in M. C. No.90 of 2005 and pass fresh orders with opportunity to the parties to adduce evidence and produce materials. The parties will appear before the Family Court, Kottarakkara on 30.11.2011. Sd/= K.M. JOSEPH, JUDGE Sd/= A. M. SHAFFIQUE, JUDGE kbk. //True Copy// PS to Judge OP.(FC).NO.2113 OF 2011 R 4