Allowed

Muraleedharan V.N. v. Sindhu P.K.

Kerala HC10 Oct 2018Mat.Appeal/863/2018

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the matrimonial appeal challenging an order dismissing an application to set aside an ex-parte decree. The court held that directing the appellant to deposit the entire past maintenance was harsh and unreasonably modified the condition to a fixed sum of Rs. 60,000/- to be deposited within one month to restore the suit.

What did the court decide?

Set aside the order dated 27.02.2017; modified the order directed by the lower court to deposit Rs. 60,000/- towards past maintenance within one month; directed restoration of the case to file within

Muraleedharan V.N. Vs Sindhu P.K. — Maintenance and Alimony | 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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WEDNESDAY, THE 10TH DAY OF OCTOBER 2018 /18TH ASWINA, 1940

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Mat.Appeal.No. 863 of 2018

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[AGAINST THE ORDER DATED 27.02.2017 IN I.A.NO.1632/2016 AND ORDERS DATED 06.01.2017 IN I.A. NOS.1632/2016 AND 1633/2016 IN OP 180/2014 OF FAMILY COURT, MALAPPURAM]

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APPELLANT/PETITIONER/RESPONDENT:

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MURALEEDHARAN V.N.

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S/O NARAYANAN, VATTAPARAMBIL HOUSE, AVANNUR (PO), THRISSUR DISTRICT.

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BY ADVS.

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K.B. ARUNKUMAR SRI.RANJIT BABU SRI.RANJIT BABU

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RESPONDENTS/RESPONDENTS/PETITIONER:

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1 SINDHU P.K. D/O. GOPALAKRISHNAN EZHUTHACHAN, PUNNAKKATTUKUZHI (H), PUZHAKKATTIRI (PO), ANGADIPPURAM, MALAPPURAM DISTRICT. PIN 679 321.

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2 AKHILA

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AGED 5½ YEARS, MINOR, D/O MURALEEDHARAN V.N., PUNNAKKATTUKUZHI (H), PUZHAKKATTIRI (PO), ANGADIPPURAM, MALAPPURAM DISTRICT, PIN-679321, REPRESENTED BY MOTHER.

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Mat. Appeal No. 863 OF 2018

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3 KARTHIYAYINI AGED 73 YEARS W/O NARAYANAN, VATTAPARAMBIL HOSUE, AVANNUUR (PO), THRISSUR DISTRICT, PIN-680541.

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BY ADVS. SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat. Appeal No. 863 OF 2018

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C.K. ABDUL REHIM

R. NARAYANA PISHARADI, JJ.

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----------------------------------------------------Mat. Appeal No. 863 OF 2018

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

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Dated this the 10^th day of October, 2018

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J U D G M E N T

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Narayana Pisharadi, J.

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The appellant is the husband and the 1^st respondent is the wife. The 2^nd respondent is the minor child of the appellant and

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the 1^st respondent. The 3^rd respondent is the mother of the appellant.

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Respondents 1 and 2 had filed O.P.No.180/2014 in

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the Family Court, Malappuram for granting a decree for realization of past maintenance due to them from the appellant.

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The first respondent had also sought a decree for return of gold

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ornaments allegedly entrusted by her to the husband. The appellant and the 3^rd respondent were set ex-parte in the

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Mat. Appeal No. 863 OF 2018

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aforesaid case on 29.11.2015. Thereafter, an ex-parte decree was passed against them on 01.02.2016.

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The appellant filed an application as I.A.No.1633/2016 for setting aside the ex-parte decree passed against him. He also filed an application as I.A.No.1632/2016 for condoning the delay of 330 days in filing the application for setting aside the ex-parte decree. As per the impugned order dated 06.01.2017, the Family Court allowed both the applications on the condition that the appellant shall deposit the entire past maintenance allowance ordered in O.P. No.180/2014 within a period of 30 days and that he shall pay costs of `2,500/- to the wife.

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The appellant did not pay or deposit the amount of past maintenance or the amount of costs. Therefore, on 27.02.2017 the application for setting aside the ex-parte decree

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was dismissed by the lower court. The appellant has challenged the orders dated 06.01.2017 and 27.02.2017

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Mat. Appeal No. 863 OF 2018

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passed by the Family Court.

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We have heard learned counsel for the appellant and also respondents 1 and 2.

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Learned counsel for the appellant has contended that the condition imposed by the lower court for setting aside the ex-parte decree, i.e., payment of the entire amount of past maintenance, is harsh and unreasonable. Learned counsel has contended that the amount ordered to be deposited as a condition for setting aside the ex-parte decree is highly excessive.

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The 1^st and the 2^nd respondents have not challenged the order dated 06.01.2017 passed by the Family Court, setting

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aside the ex-parte decree passed against the appellant. We take note of the fact that the lower court has directed the appellant to pay the entire amount of past maintenance, within a period of 30 days, in addition to an amount of `2,500/- as costs,

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as a condition for setting aside the ex-parte decree. It is well

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Mat. Appeal No. 863 OF 2018

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settled that decree debt can be ordered to be deposited as a condition for setting aside the ex-parte decree. However, the amount ordered to be deposited or paid shall not be excessive or unreasonable or harsh.

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In the instant case, we are of the view that the direction given by the Family Court to pay the entire amount of past maintenance as a condition for setting aside the ex-parte decree is unreasonable and harsh. Therefore, we are inclined to modify the aforesaid order by directing the appellant to deposit/pay an amount of `60,000/- towards the past maintenance due to the wife and the child.

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Consequently, we allow the appeal and set aside the

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order dated 27.02.2017 passed by the lower court in I.A. No.1632/2016 in O.P. No.180/2014. We modify the order dated 06.01.2017 passed by the lower court and direct the appellant

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to deposit an amount of `60,000/-(Rupees sixty thousand only) within a period of one month from today in the Family Court,

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Mat. Appeal No. 863 OF 2018

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Malappuram, as a condition for setting aside the ex-parte decree passed against him. If the amount is deposited within

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the aforesaid period, the Family Court shall restore the case to file and dispose of the case afresh, in accordance with law, as expeditiously as possible, at any rate, within a period of six months from today. Needless to say, if the appellant fails to deposit the amount as directed above, the appeal will stand dismissed.

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Interim stay granted by this court will continue for a period of one month from today. On deposit of the amount, the 1^st respondent is at liberty to withdraw the same.

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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.

Muraleedharan V.N. v. Sindhu P.K.

Case brief

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Muraleedharan V.N. v. Sindhu P.K.

Case brief

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