Disposed

Subin v. Krishna Kumari K.K.

Kerala HC16 Dec 2019RPFC/374/2019

Case brief

AI extract

What is this about?

Revisions Petitioner challenged an ex-parte maintenance order passed by the Family Court due to failure to file written objection. The Court set aside the order conditionally, directing the Petitioner to deposit 75,000/- within 45 days as a condition precedent.

What did the court decide?

Petition to set aside ex-parte order allowed upon deposit of Rs. 75,000/- within 45 days; Family Court directed to decide within six months thereafter.

Subin Vs Krishna Kumari K.K. — Maintenance and Alimony | Kerala HC (2019)

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RP(FC) 374 of 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 C.S.DIAS

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MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941

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RPFC.No.374 OF 2019

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AGAINST THE ORDER/JUDGMENT IN MC 94/2018 DATED 26-02-2019 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR

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REVISION PETITIONER/S:

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SUBIN AGED 37 YEARS VATANIRAPPEL HOSUE, BLOCK JUNCTION, KADUTHURUTHI P.O., KOTTAYAM DISTRICT, PIN-686 604.

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BY ADVS. SRI.SUBHASH CYRIAC SMTSHEEBA JOSEPH SRI.S.SREEJITH (S-3453)

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RESPONDENT/S:

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1 KRISHNA KUMARI K.K. AGED 37 YEARS D/O. KRISHNANKUTTY, KUNNUKANDATHIL HOUSE, ETTUMANOOR P.O., KOTTAYAM DISTRICT, PIN-686 631.

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2 V.S.BILHARI (MINOR) AGED 4 YEARS S/O. SUBIN, KUNNUKANDATHIL HOUSE, ETTUMANOOR P.O., KOTTAYAM DISTRICT, PIN-686 631 (THE 2ND RESPONDENT IS A MINOR AND HE IS REPRESENTED BY HIS MOTHER, THE IST RESPONDENT).

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R1 BY ADV. G.R.MANJU

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THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 16.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

RP(FC) 374 of 2019

ORDER

The respondent in M.C No.94/2018 on the files of the Family Court, Kottayam at Ettumanoor is the revision petitioner. The respondents are his wife and son. The respondents had filed the M.C, seeking montly maintenance for them at the rate of Rs 10,000/and Rs 5,000/- from the revision petitioner.

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It is averred in the R.P(FC) that, even though the revision petitioner appeared in the above M.C, he was unable to file his written objection. The Family Court set the revision petitioner ex-parte and passed the impugned order.

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It is assailing the impugned order that the RP(FC) is filed.

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Heard Sri.Subhash Syriac, the learned counsel appearing for the revision petitioner and Smt.G.R.Manju, the learned counsel appearing for the respondents.

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The counsel for the revision petitioner

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RP(FC) 374 of 2019

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submits that the revision petitioner is a diabetic patient. He was unable to attend the hearing in the M.C only because he was indisposed. The counsel prays that the ex-parte order may be set aside, and the revision petitioner be given an opportunity to contest the case on merits.

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The counsel for the respondents on the other hand vehemently opposed the prayer of the counsel for the revision petitioner. She contends that the revision petitioner was deliberately trying to procrastinate the determination of the case, which eventually led the Family Court to pass the impugned order. She further contends that the order may not be set aside.

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On going through the impugned order, it is discernible that the revision petitioner was set exparte, for the reason that he did not file written objection within the prescribed time period. Admittedly, the matter has not been decided on merits. It is trite law that sufficient opportunity shall be given to both parties to contest the case on its merits, and

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RP(FC) 374 of 2019

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that a lenient view shall be taken in setting aside exparte orders, of course, subject to conditions.

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By the impugned order the Family Court directed the revision petitioner to pay monthly maintenance at the rate of Rs 7,500/- to the respondents, from the date of petition, i.e., from 9.5.2018. As on today, undisputedly, an amount of Rs 1,35,000/- is due from the revision petitioner towards arrears of maintenance, as per the impugned order.

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Taking into consideration the fact that the impugned order was passed after setting the revision petitioner ex-parte and that a leneient view has to be taken in the matter by giving the revision petitioner an opportunity to contest the case on its merits, but at the same time without hardship and prejudice to the respondents, I propose to dispose this R.P(FC).

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Admittedly, an amount of Rs 1,35,000/- is due from the revision petitioner, as arrears of maintenance, to the respondents. I feel it would be appropriate to direct the revision petitioner to pay a consolidated

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RP(FC) 374 of 2019

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amount of Rs 75,000/- to the respondents, within a period of forty five days from the date of receipt of a copy of this judgment, as a condition precedent to set aside the impugned order. If the revision petitioner deposits the amount of Rs 75,000/- within the stipulated time period, the same shall be immediately and unconditionally released to the respondents, then the impugned order shall stand set aside and the Family Court shall consider and dispose of M.C No.94/2018 within a period of six months, in accordance with law, after affording the revision petitioner an opportunity to file his written objection in the M.C. Ultimately, if the M.C is allowed in favour of the respondents, the above amount paid shall be given credit to by the Family Court, towards the maintenance allowance payable by the revision petitioner.

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This RP(FC) is disposed of accordingly.

Sd/-

C.S.DIAS

Sks/16.12.2019

JUDGE

RP(FC) 374 of 2019

Subin v. Krishna Kumari K.K.

Case brief

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Subin v. Krishna Kumari K.K.

Case brief

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