Allowed

Rajasekharan Nair v. Kumari Shobha

Kerala HC21 Jul 2011OP (FC)/2350/2011

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition challenging a Family Court order under Article 226. The petitioner sought to set aside an interim order requiring payment of maintenance arrears as a condition to set aside an ex parte order. The High Court upheld the Family Court order but granted an indulgence of 10 days for payment and directed that no further extension be granted by the lower co

What did the court decide?

Condition for payment of maintenance arrears upheld; additional 10 days granted from 22.7.2011; lower court directed to grant no further extension.

Rajasekharan Nair Vs Kumari Shobha — Matrimonial and Divorce | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933

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OP (FC).No. 2350 of 2011(R) ------------------------------------OP.243/2008 of FAMILY COURT,TRIVANDRUM ....................

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PETITIONER (S):

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----------------------------

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RAJASEKHARAN NAIR , ASWATHI BHAVAN, SREENAGAR, MANIKANTESWARAM, NETTAYAM, THIRUVANANTHAPURAM.

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BY ADV. SRI.A.AHZAR

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RESPONDENT(S):

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-------------------------

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1. KUMARI SOBHA, D/O. SYAMALADEVI MURUKA NIVAS, THITTAMANGALAM,VATTIYOORKAVU MANIKANTESWARAM PO, THIRUVANANTHAPURAM.

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2. ASWATHY RAJ, D/O. SOBHA RESIDING AT MURUKA NIVAS,THITTAMANGALAM, VATTIYOORKAVU,MANIKANTESWARAM PO, THIRUVANANTHAPURAM. 695 001.

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3. ARUN RAJ, S/O. KUMARI SOBHA RESIDING AT MURUKA NIVAS,THITTAMANGALAM, VATTIYOORKAVU,MANIKANTESWARAM PO, THIRUVANANTHAPURAM.695 001.

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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tss

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OP(FC) NO.2350/2011

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APPENDIX

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PETITIONER'S EXHIBITS

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P1:- COPY OF THE OP. NO.243/2008.

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P2:- COPY OF THE OBJECTION.

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P3:- COPY OF THE ORDER PASSED BY THE HONOURABLE FAMILY COURT, THIRUVANANTHAPURAM.

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P4:- COPY OF THE PETITION TO SET ASIDE THE EXPARTE ORDER.

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P5:- COPY OF THE ORDER DTD. 22.6.2011 IN IA. 1142/2011 IN IA. 1142/2011 IN OP. NO.243/2008.

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RESPONDENT'S EXHIBITS

NIL:-

TRUE COPY

P.A. TO JUDGE

tss

THOTTATHIL B. RADHAKRISHNAN & N.K.BALAKRISHNAN, JJ.

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----------------------------------------------------------------------------O.P.(FC) No.2350 OF 2011

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Dated this the 21^st day of July, 2011

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JUDGMENT

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THOTTATHIL B. RADHAKRISHNAN,J.

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Having regard to the nature of the order being issued hereunder, notice to the respondents dispensed with, preserving their right to seek rehearing of this original petition if aggrieved by the contents of this order.

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The petitioner is the husband of the first respondent and the father of respondents 2 and 3. He was declared ex parte on 25.4.2011 in a proceeding for recovery of maintenance and other claims. He made Ext.P4 application to set aside the ex parte order. By the impugned Ext.P5 order, the Family Court has exercised the discretionary jurisdiction and has allowed the petitioner's prayer on condition that he pays one-half of the arrears of interim maintenance accrued till the date of that order, within one month therefrom. That order was issued on 22.6.2011, Today, on 21^st July 2011, his original petition under Article 227, challenging that order, is before us.

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We find not a speck of injustice in the impugned order

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O.P.(FC) No.2350 OF 2011 2

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because all that the learned Judge has done in fixing the condition is to act on an order for interim maintenance, which was issued on 25.10.2010 much before the petitioner before us was set ex parte on 25.4.2011. Obviously, the finality of that interim maintenance order stood staring at the petitioner even before that. Therefore, on the face of the indisputable legal liability to satisfy the claim allowed as per Ext.P3, that too, for interim maintenance for wife and children, we find no jurisdictional error in the impugned order. Making it conditional on the payment of arrears of interim maintenance. There is no ground of illegality to interfere with it.

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At this stage, the learned counsel for the petitioner further says that his client is only an Overseer and the lady has some income from tailoring and further that he had only time limit up to 22.7.2011 to pay the amount. We repel the plea that the quantum fixed as per Ext.P5 should be interfered with. As a matter of indulgence, we grant the petitioner 10 days more from 22.7.2011 to satisfy the payment to enjoy the benefit of Ext.P5 order.

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We further order that the court below shall not grant any

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O.P.(FC) No.2350 OF 2011

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further extension of time in view of the extension being granted by us here. The petitioner will be at liberty to file affidavit before the court below pointing out the contents of this order, if necessary.

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Issue copy of order urgently.

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THOTTATHIL B. RADHAKRISHNAN, JUDGE

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N.K.BALAKRISHNAN, JUDGE

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mns

Rajasekharan Nair v. Kumari Shobha

Case brief

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Rajasekharan Nair v. Kumari Shobha

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