Disposed

Sakkeer Hussain v. Fousiya

Kerala HC21 Jun 2019RPFC/128/2019

Case brief

AI extract

What is this about?

The High Court set aside ex parte proceedings in a maintenance enhancement claim. The Court remitted the matter for fresh hearing contingent on the husband depositing arrears from a previous confirmed judgment pending with the Family Court, directing strict timelines for payment and disposal.

What did the court decide?

The ex parte proceedings and consequential dismissal in M.C.No.77/2013 are set aside and remitted for fresh consideration, provided the petitioner deposits maintenance arrears within stipulated timeli

Sakkeer Hussain Vs Fousiya — Maintenance and Alimony | Kerala HC (2019)

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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 ALEXANDER THOMAS

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FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941

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RPFC.No.128 of 2019

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AGAINST THE ORDER DATED 20.12.2018 IN CMP NO.344 OF 2015 IN MC NO.77/2013 AND THE EX-PARTE ORDER DATED 09.07.2014 IN M.C.NO.77/2013 ON THE FILE OF THE FAMILY COURT, TIRUR

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REVISION PETITIONER/RESPONDENT

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SAKKEER HUSSAIN AGED 38 YEARS S/O. P.K. MOIDEENKUTTY, THENODI HOUSE, VELIMUKKU SOUTH, MOONNIYUR, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676311.

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BY ADVS. SRI.R.RAMADAS SRI.T.SIVADASAN

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RESPONDENTS/PETITIONERS

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1 FOUSIYA

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AGED 28 YEARS, D/O. ALI HASSAN, THAZHATHEL HOUSE, IRUMBUCHOLA, A.R. NAGAR P.O, TIRURANGADI TALUK, MALAPURAM DISTRICT, PIN-676305.

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2 SALMAN FARIZ, AGED 11 YEARS, MINOR, S/O. FOUSIYA, THAZHATHEL HOUSE, IRUMBUCHOLA, A.R. NAGAR P.O, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676305.

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3 MUHAMMED FAYIZ,

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AGED 8 YEARS, MINOR, S/O. FOUSIYA, THAZHATHEL HOUSE, IRUMBUCHOLA, A.R. NAGAR P.O, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676305. (MINOR RESPONDENTS 2 AND 3 ARE REPRESENTED BY THEIR GUARDIAN AND MOTHER 1ST RESPONDENT)

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BY ADV. SRI.BABU S. NAIR

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THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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R.P(F.C) No.128 of 2019

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ALEXANDER THOMAS, J.

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=========================== R.P(F.C) No.128 of 2019

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===========================

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Dated this the 21^st day of June, 2019

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ORDER

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The prayer in the above revision petition filed under Sec.19(4) of the

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Family Court Act, 1984 is as follows:

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“accept the contentions of the revision petitioner, set aside the impugned orders passed by the Family Court, Tirur and pass orders dismissing M.C.No.77/2013 on the file of the Family Court, Tirur.”

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Heard Sri.R.Ramadas, learned counsel appearing for the revision petitioner (husband) and Sri.Babu S.Nair, learned counsel appearing for the respondents (wife and two minor sons).

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Now it is submitted that the final order dated 11.06.2013 in the original maintenance claim in M.C.No.66/1999 on the file of the Family Court, Malappuram has already been confirmed by the Division Bench of this Court in the judgment dated 30.05.2019 in R.P(F.C)No.28/2012, whereby the husband has been directed to pay maintenance to the wife and two children at the rate of Rs.3,000/- p.m., Rs.1,200/- p.m. and 800/- per month respectively. During the pendency of the above R.P(F.C), the wife and children had filed the present M.C.No.77/2013 before the Family

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R.P(F.C) No.128 of 2019

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Court, Tirur, seeking enhancement of maintenance at the rate of Rs.4,000/- p.m. to the wife, Rs.2,000/- p.m. each to the two minor sons. The petitioner herein was set ex-parte in the said M.C.No.77/2013 on 09.07.2014 and the petitioner’s application as per C.M.P.No.344/2015 for setting aside the impugned ex-parte order, which is filed within time has also been dismissed by the Family Court.

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Taking note of the abovesaid facts and developments, this Court is inclined to set aside the impugned ex parte proceedings of the Family Court in M.C.No.77/2013 and remit the main matter in M.C.No.77/2013 for consideration afresh, but subject to stringent conditions.

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The petitioner will immediately pay maintenance to the wife and two children @ Rs.3,000/- per month, Rs. 1,200/- per month and Rs.800/- per month respectively, as aforesaid and as ordered by the Family Court in the order dated 11.6.2013 in M.C.No. 66/1999, which has now also been confirmed by the Division Bench of this Court in the judgment dated 30.5.2019 in R.P.(F.C.) No. 28/2012. It shall be ensured that the petitioner shall pay 60% of the due balance arrears in that regard from the date of the petition in M.C.No.66/1999 at the above rate upto 30.6.2019 within six weeks and the balance 40% of the said arrears shall be paid by him within the next four weeks thereafter. The petitioner will deposit the

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R.P(F.C) No.128 of 2019

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abovesaid entire balance due amounts before the Family Court, as already ordered in M.C.No. 66/1999, upon which the said court will immediately release the said amounts to the respondents. It is only subject to this condition for payment of the abovesaid entire due arrears as per the order dated 11.6.2013 in M.C.No. 66/1999, that the impugned proceedings in M.C.No. 77/2013 issued on 9.7.2014 to the extent the petitioner has been set ex parte in M.C.No.77/2013 and consequential dismissal of the petitioner's application as per Crl.M.P. No.344/2015 for setting aside the said impugned order, will stand set aside and rescinded. If the petitioner does not pay the entire abovesaid due arrears in M.C.No.66/1999 as aforestated, then the abovesaid order of this Court to set aside the abovesaid impugned ex parte proceedings in M.C.No.77/2013 will stand automatically vacated and the impugned ex parte order in M.C.No.77/2013 will stand automatically restored and confirmed. However, if the petitioner convinces the Family Court within the abovesaid time limit that he has cleared the entire arrears in M.C.No. 66/1999, then as already directed herein above, the abovesaid ex parte proceedings in M.C.No. 77/2013 and the consequential dismissal of the application filed by the petitioner to set aside the said ex parte proceedings in M.C.No. 77/2013 will stand set aside and rescinded and the main matter in M.C.No. 77/2013 will thus stand

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R.P(F.C) No.128 of 2019

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remitted to the Family Court for consideration afresh. In such eventuality, the Family Court will permit the petitioner to file his pleadings and permit both sides to adduce evidence and after affording reasonable opportunity of being heard to both sides, the Family Court will pass orders finally disposing of M.C.No.77/2013 without much delay, preferably within a period of 4-5 months from the date of production of a certified copy of this order. It is also made clear that until final orders are passed by the Family Court, Tirur, in M.C.No. 77/2013, the petitioner will continue to pay maintenance to the wife and two children @ Rs. 3,000/- per month, Rs. 1,200/- per month and Rs. 800/- per month as aforestated, as already ordered by the Family Court in the order dated 11.6.2013 M.C.No.66/1999, for the periods from July, 2019 onwards, which shall also be paid by the petitioner by the 10^th of every month.

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With these observations and directions, the R.P.(F.C.) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS JUDGE

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vgd

Sakkeer Hussain v. Fousiya

Case brief

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Sakkeer Hussain v. Fousiya

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