IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 OP (FC).No. 3088 of 2011(R) ------------------------------------ AGAINST THE ORDER DATED 11/12/2009 IN IA.6798/2008 IN OP.46/2008 oOF FAMILY COURT,ERNAKULAM .................... PETITIONER: -------------------- PRADEEP, S/O.K.C.KESAVAN, AGED 36 YEARS, KUZHIPARAMBIL HOUSE (KESAV), MAMANGALAM, KOCHI-25. BY ADVS. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.S.ASHOK KUMAR. SRI.NOEL JOSEPH SRI.M.B.SANDEEP SRI.K.V.REJANISH RESPONDENT: -------------------- RESMI, AGED 27 YEARS, D/O.N.A.MOHANSINGH, NADUVILEZHATH HOUSE, THEKKENMALIPURAM, AZHEEKKAL, ERNAKULAM, PIN-682510. BY ADV. SMT. K.V. BHADRAKUMARI. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SCL. WP(C).No. 3088 of 2011(N). APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF THE ORDER IN M.P. NO.173/09 IN M.C. 376/08 DATED 11/12/2009 P2: TRUE COPY OF THE ORDER IN I.A. NO.6798/08 IN O.P.NO.46/08 DATED 11/12/09. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// PA TO JUDGE. SCL. THOTTATHIL B.RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. ----------------------------------- O.P(FC).No.3088 OF 2011 ------------------------------------ Dated this the 28th day of September, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.The husband is the petitioner. The wife sued him before the family court for maintenance. She also invoked Section 125 Cr.PC and filed M.C. Both matters were ordered in December, 2009. In the M.C., she was granted Rs.5,000/- per month as interim maintenance. Noticing that fact, the same Judge ordered Rs.2,500/- also as interim maintenance under the Hindu Marriage Act proceedings. Both these orders together show that the learned Judge was clear in the view that the woman is entitled to Rs.7,500/- as maintenance. Out of that, Rs.5,000/- was given in the proceedings under Section 125 Cr.PC and the remaining Rs.2,500/-, in the Hindu Marriage Act proceedings. OPFC.3088/11 2 2.Learned counsel for the petitioner very persuasively argued that the dichotomy of proceedings before the court below under a piece of legislation in the realm of family laws and another order in the realm of criminal laws are issued quite against the equality doctrine contained in the Constitution. He also said that the amount has been fixed without taking into consideration the income of the husband and his ability to maintain, as also the requirement of the wife for maintenance. 3.The wife is represented through counsel to oppose the matter. 4.Having considered the contents of the order in the M.C. case and the order in the Hindu Marriage Act proceedings, we see certain relevant factors. The marriage was in the year 2003. The couple does not have any issues. The husband stands to say that he has vision only up to 20% and one of OPFC.3088/11 3 the allegations of the wife before the court below was that his such vision impairment was not disclosed but was suppressed from her while she consented for the marriage. 5.The court below found that there were transactions in which the husband and his mother obtained an amount of Rs.3,10,00,000/- under a sale in 2007. The wife, according to the husband, takes tuitions, which, according to him, would generate Rs.7,500/- per month as returns. The husband does not dispute the further allegations by the wife that he has different other sources of income, including by way of rentals etc. With all these materials on record, we do not find any legal infirmity in the family court having issued two orders, totalling up the interim maintenance to Rs.7,500/-. 6.There is no jurisdictional error in the matter of having passed two different orders. There is also reason for passing OPFC.3088/11 4 such orders. The maintenance order under Section 125 Cr.PC can be enforced by distress action provided under the Cr.PC. That provision has more teeth than execution proceedings by orders passed in civil jurisdiction. This is one reason why people are pursuaded to go first to the criminal courts and seek remedy. Not only that, the proceedings under Section 125 Cr.PC are summary. 7.With all the aforesaid, we find no reason why the petitioner ought not to have challenged the impugned orders in time, if he were aggrieved by them. The impugned orders were issued as early as in December, 2009. In so far as the order in the M.C. proceedings is concerned, the petitioner had remedy by way of revision. Nothing is shown to have been done. 8.We do not find any ground to exercise discretionary jurisdiction under Article 227, either on merits or on the OPFC.3088/11 5 question of delay to entertain this matter and issue any order in favour of the husband. In the result, this original petition is dismissed without prejudice to contentions before the court below. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- C.T.RAVIKUMAR, Judge. kkb.4/10.