Allowed

Naseer v. Shameera

Kerala HC10 Sept 2018Mat.Appeal/1004/2017

Case brief

AI extract

What is this about?

The High Court allowed the marriage appeal to set aside the lower court's dismissal of applications to quash an ex parte decree. Despite laches by appellants, the court adopted a lenient view given their age and illiteracy, ordering conditions to protect the respondents' interests.

What did the court decide?

Set aside the order dismissing interim applications to set aside the ex parte decree; dismissed the marriage appeal to that extent.

Naseer Vs Shameera — Matrimonial and Divorce | Kerala HC (2018)

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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 C.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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MONDAY ,THE 10TH DAY OF SEPTEMBER 2018 / 19TH BHADRA, 1940

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Mat.Appeal.No. 1004 of 2017

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AGAINST THE ORDER/JUDGMENT IN OP 976/2012 of FAMILY COURT,THRISSUR DATED 03-03-2017

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APPELLANTS/PETITIONERS:

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1 NASEER AGED ABOUT 39 YEARS,S/O.PEEDIYEKKAL ABU,PANCHAVADY DESOM, EDAKAZHIYOOR P.O.,EDAKAZHIYOOR VILLAGE, CHAVAKKAD TALUK,680 515.

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2 ABU, AGED 70 YEARS,S/O.MOOTHEDATH HAMEED,PEEDIYEKKAL HOUSE, EDAKAZHIYOOR,P.O.,EDAKAZHIYOOR VILLAGE, CHAVAKKAD TALUK,680 515.

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3 BEEVATHU, AGED 67 YEARS, W/O.ABU, PEEDIYEKKAL HOUSE,EDAKAZHIYOOR P.O., EDAKAZHIYOOR VILLAGE,CHAVAKKAD TALUK, 680 515.

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BY ADVS. SRI.RAJIT SRI.C.DHEERAJ RAJAN

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Mat. Appeal No.1004/2017

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RESPONDENTS/RESPONDENTS:

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1 SHAMEERA AGED 33 YEARS, D/O.MUHAMMADALI,NALAKATH HOUSE, PANCHAVADY DESOM EDAKAZHIYOOR P.O., EDAKAZHIYOOR VILLAGE, CHAVAKKAD TALUK 680 515.

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2 MINOR MUHAMMED SHIBIN AGED 7 YEARS, REPRESENTED BY MOTHER AND GUARDIAN SHAMEERA.

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3 NISHANA(MINOR) AGED 9 YEARS, REP. BY MOTHER AND GUARDIAN SHAMEERA.

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BY ADV. SRI.BENOJ C AUGUSTIN

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat. Appeal No.1004/2017

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C.K. ABDUL REHIM &

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R. NARAYANA PISHARADI, JJ.

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----------------------------------------------------Mat. Appeal No. 1004 OF 2017

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

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Dated this the 10^th day of September, 2018

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J U D G M E N T

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Abdul Rahim, J.

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The above Matrimonial Appeal is filed against a common

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order passed by the Family Court, Thrissur in I.A.Nos.5279/2015 and 5280/2015 in O.P. No.976/2012, dated 3^rd March, 2017. By virtue of the order impugned, the court below had dismissed the applications filed by the appellants seeking to set aside an exparte decree passed against them, after condoning the delay occurred in filing the said application.

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Facts of the case in brief are that; the respondents

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herein, who are the wife and minor children of the 1^st appellant,

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filed O.P. No.976/2012 before the Family Court, Thrissur

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Mat. Appeal No.1004/2017

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seeking for return of gold ornaments, money, past and future maintenance for respondents 1 to 3, and compensation. The appellants remained exparte in the original petition and the Family Court had decreed the case as follows:

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“(i) The respondents are directed to return the gold ornaments weighing 22¼ sovereigns or its equivalent value of Rs.4,45,000/to the 1^st petitioner within two months from this date, failing which the equivalent value will carry interest at the rate of 6% per annum from the date of the petition till realisation.

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(ii) The respondents are directed to refund the cash of Rs.60,000/- to the 1^st petitioner within two months from this date, failing which the amount will carry interest at the rate of 6% per annum from the date of the petition till realisation.

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(iiI) The respondents are directed to return household articles or its equivalent value of Rs.30,000/- to the 1^st petitioner within two months from this date failing which the equivalent value will carry interest at the rate of 6% per annum from the date of the petition till realisation.

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(iv) The 1^st respondent is directed to pay past maintenance amounts at the rate of

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Mat. Appeal No.1004/2017

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Rs.1,500/- to the 1^st petitioner, Rs.750/- to the 2^nd petitioner and Rs.1,000/- to the 3^rd petitioner per mensem for 6 months to the tune of Rs.19,500/to the petitioners within two months from this date, failing which the amount will carry interest at the rate of 6% per annum from the date of the petition till realisation.

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(v) The 1^st respondent is directed to pay future maintenance amounts at the rate of Rs.2,000/- to the 1^st petitioner, Rs.1,000/- to the 2^nd petitioner and Rs.1,500/- to the 3^rd petitioner per mensem from the date of the petition.

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(vi) The 1^st petitioner is empowered to receive the maintenance amounts awarded to the 2^nd and 3^rd petitioners for and on behalf of them.

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(vii) The 1^st petitioner is not entitled for any compensation from the respondents.

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(viii) The petitioners are not entitled to get any costs in this petition.”

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The appellants filed I.A. No.5280/2015 [mistakenly

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noted the year as 2016 in the impugned order] to set aside the

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above said exparte decree, accompanied with I.A.No.5279/2015 [mistakenly noted the year as 2016 in the impugned order] seeking condonation of the delay of 590 days

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Mat. Appeal No.1004/2017

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occurred in filing the said application. One of the reasons stated in those applications is that, the appellants 2 and 3 herein are aged persons who were laid up and therefore the appellants could not file the written statement in the original petition when the case was posted on 12.12.2014. Further statement is that, the 1^st appellant was confined in prison from 14.06.2015 onwards for the non-payment of the amount of maintenance ordered in M.C. No.102/2012 and therefore he could not take appropriate steps to file the written statement when the case was posted for the same. According to the appellants, they have got very valid contentions in the original petition, which they could not agitate before the court.

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The above said applications were stiffly opposed by the respondents through objections filed. It was contended that the reasons mentioned for non filing of the written statement in time are not true and correct. According to the respondents, only when the appellants received notice in the execution

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Mat. Appeal No.1004/2017

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petition they have approached the court with the above applications and it is ill motivated to see that the respondents are prevented from enjoying the fruits of the decree.

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While adjudicating the interim applications, the Family Court found that, the 1^st appellant, who gave evidence in the interim applications, had admitted about his knowledge with respect to pendency of the original petition. It was noticed that there was appearance for the appellants through Advocate from 14.11.2012 till 15.11.2013. Even though the exparte decree was passed on 25.03.2014, the interim applications were filed only on 07.12.2015. The court below observed that, there is no case for the appellants that the 1^st appellant was not in station during the said period. The explanation offered by the 1^st appellant that he was not able to appear before the court because of the arrears pending with respect to payment of maintenance ordered in the M.C. case, was found to be not acceptable because such a statement does not find a place in

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Mat. Appeal No.1004/2017 -:8:-

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the affidavit filed in support of the present interim applications. It

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was further found that, with respect to alleged illness of the appellants 2 and 3 no documents were produced. The Family Court also found that, the 1^st appellant was sent to prison in the Month of June, 2015 only for a period of about 3½ months. But the present interim applications were filed only in December, 2015. Further finding is that, the reason that he was in jail due to non payment of maintenance, cannot be considered as a valid reason for condoning the delay occurred in filing the application for setting aside the exparte decree. The court below found merit in the contention taken by the respondents that, the interim applications were filed only on getting notice in the execution petition. Therefore it was held that there is no reasonable cause to condone the delay. Consequently the applications were dismissed.

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Learned counsel appearing for the appellants contended that, the court below ought to have taken a liberal

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Mat. Appeal No.1004/2017

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attitude in the matter by finding that the appellants have got very valid contentions in the original petition. He pointed out that, one of the contentions raised in the affidavit filed in support

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of the interim applications is that, the 1^st respondent is living with another person and one of the children is now admitted in an orphanage and is being looked after there. Further, learned counsel had pointed out that, the court below had omitted to take note of the fact that the 1^st appellant is an illiterate person eking his livelihood by fish vending and is unaware of the procedural formalities and legal intricacies of the case. It is contended that, the court below ought to have taken a lenient view by considering the old age of the appellants 2 and 3. Non acceptance of the ground that the 1^st appellant was in prison during the relevant time, was also assailed as totally unjustified.

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Per contra , learned counsel appearing for the

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respondents contended that the respondents were left totally destitute and they could realise even a portion of the amount of

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Mat. Appeal No.1004/2017

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maintenance ordered only through coercive steps taken. It is pointed out that, still a portion of the maintenance ordered is in arrears. He denied the allegation that the 1^st respondent is living with another person and that the child is being looked after in an orphanage. It is contended that the Family Court was fully justified in declining to interfere with the exparte decree.

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Having considered the rival contentions, we take note of the fact that the appellants could not contest the original petition on merits. Of course, there occurred laches on the part of the appellants. But we are of the opinion that a liberal view ought to have been taken in the matter of setting aside the exparte decree. It is well settled that liberal approach is warranted in such matters. In this case, even though the appellants could not establish proper reasons for the delay occurred with any absolute precision, it has come out in evidence that the 1^st appellant is only an illiterate fisherman and

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Mat. Appeal No.1004/2017

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he was in jail for some time. The appellants 2 and 3 are aged

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and ailing persons. Hence a lenient view in the matter is warranted. But at the same time, we are of the opinion that sufficient protection need to be afforded to the respondents, who are not capable of maintaining themselves. Therefore we think it appropriate to allow the interim applications and to set aside the exparte decree by imposing sufficient conditions to safeguard the interest of the respondents. We are also inclined to direct the Family Court to have an expeditious disposal of the original petition itself.

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In the result, the above Matrimonial Appeal is allowed to the extent as follows:

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(I) The order passed by the Family Court, Thrissur, in I.A.No.5279/2015 and 5280/2015 in O.P. No.976/2012 is hereby set aside. Those interim applications are hereby allowed and the exparte decree passed in O.P. No.976/2012 is hereby set aside, subject to the following conditions:

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Mat. Appeal No.1004/2017

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(i) the appellant shall deposit the amount of Rs.19,500/- decreed towards past maintenance, along with interest at the rate of 6% per annum from the date of filing of the original petition till the date of payment, before the Family Court, within a period of one month from today. On such deposit the Family Court shall permit the respondents to withdraw the said amount, subject to outcome of the original petition.

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(ii) The appellant shall make deposit/pay to the respondents, the entire arrears of future maintenance ordered in the decree which is due as on the date of such payment, within a period of one month from today and shall continue payment of the future maintenance, without fail till the disposal of the original petition. The payment of maintenance if any made in compliance with the order in M.C.No.102/2012 shall be given due credit in calculating the amounts due in this regard.

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(iii) the appellant shall make payment of cost of Rs.10,000/- to the respondents directly or to their counsel appearing before the Family

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Mat. Appeal No.1004/2017

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Court, within the above said period of one month. (II) The Family Court shall, on compliance of the above conditions by the appellants, restore the original petition on its files and shall take all earnest endeavour to dispose of the same at the earliest, at any rate within a period of six months from the date of payment of the amounts as stipulated above.

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The parties shall appear before the court below on 03.10.2018.

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Sd/- C.K. ABDUL REHIM, JUDGE .

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Sd/- R. NARAYANA PISHARADI, JUDGE .

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ul/-

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[True copy]

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P.S. to Judge.

Naseer v. Shameera

Case brief

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Naseer v. Shameera

Case brief

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