Allowed

Swaraj v. Jitha Rajendran

Kerala HC2 Mar 2023OP(Crl.)/105/2023

Case brief

AI extract

What is this about?

The Court condoned the delay in filing the application for setting aside an ex parte order in a maintenance case. The petitioner was directed to remit Rs.1,00,000/- within one month to have the order set aside, with the amount to be adjusted towards arrears.

What did the court decide?

Delay in filing application for setting aside ex parte order condoned; order set aside on deposit of Rs.1,00,000/- within one month.

Swaraj Vs Jitha Rajendran — Maintenance and Alimony | Kerala HC (2023)

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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 V.G.ARUN

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THURSDAY, THE 2^ND DAY OF MARCH 2023 / 11TH PHALGUNA, 1944

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OP(CRL.) NO. 105 OF 2023

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AGAINST THE ORDER IN MC 234/2019 OF FAMILY COURT, NEDUMANGAD PETITIONER/PETITIONER/RESPONDENT:

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SWARAJ, AGED 33 YEARS S/O MURALI, SOORAJ BHAVAN, NEDUMANKONAM, PULIMATH P.O., CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695612 BY ADV LATHEESH SEBASTIAN

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RESPONDENT/RESPONDENT/1ST PETITIONER:

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JITHA RAJENDRAN AGED 39 YEARS D/O GEETHA, RAJAGIRI, VENJARAMOODU, THIRUVANANTHAPURAM DISTRICT, PIN - 695606 BY ADV ARAVIND S.S

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THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON

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02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(Crl) No.105 of 2023

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J U D G M E N T

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Dated this the 2^nd day of March, 2023

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The petitioner is the respondent in M.C.No. 234 of 2019 filed by his wife and child seeking maintenance. The petitioner’s failure to appear before the Family Court resulted in he being set ex parte. Thereupon, the petitioner preferred an application for setting aside the ex parte order. The application was allowed as per Ext.P5 order dated 06.05.2021, on condition of the petitioner paying Rs.50,000/- to the counter petitioners within one month. It is also stated that, failure to remit the amount will result in the petition being dismissed. The petitioner failed to remit the amount within the one month period and has filed this Original Petition, expressing his willingness to pay the amount and for a direction to the Family Court to accept payment and set aside the ex parte order.

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I heard learned counsel for the petitioner and learned counsel for the respondent.

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O.P(Crl) No.105 of 2023

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Learned counsel for the petitioner submitted that

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the petitioner’s failure to deposit the amount in terms of the directions in Ext.P5 was not willful and had occurred due to the acute financial difficulties faced by him consequent to Covid-19 and the lock down.

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Learned counsel for the respondent stoutly

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opposed the prayer and submitted that absolutely no amount, except Rs.12,000/- is paid towards maintenance and therefore, no leniency should be shown to the petitioner.

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Even though I find merit in the submissions put forth by the learned counsel for the respondent, in my opinion it is improper to mulct petitioner with the liability of paying maintenance without affording him an opportunity to let in evidence.

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At the same time, in view of the petitioner’s failure to remit the amount in terms of Ext.P5 for almost two months, he should deposit a higher amount for getting the ex parte order set aside.

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O.P(Crl) No.105 of 2023

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The delay in filing the application for setting aside the ex parte order will stand condoned and the ex parte order will stand set aside if the petitioner remits Rs.1,00,000/within one month. The amount, if deposited, shall be treated as deposit in terms of the direction in Ext.P5 and it shall be adjusted towards arrears of maintenance and released to the claimants in the maintenance case, on their filing an appropriate application.

Sd/-

V.G.ARUN, JUDGE

smm

O.P(Crl) No.105 of 2023

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APPENDIX OF OP(CRL.) 105/2023

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PETITIONER EXHIBITS ExhibitP1 TRUE COPY OF THE M.C NO 234/2019 OF FAMILY COURT, NEDUMANGAD ExhibitP2 TRUE COPY OF THE ORDER OF THE FAMILY COURT, NEDUMANGAD DATED 30.08.2019 IN M.C NO 234/2019 ExhibitP3 TRUE COPY OF THE PETITION IN CMP NO.297/2020 IN M.C NO.234/2019 ExhibitP4 TRUE COPY OF THE PETITION IN CMP NO.298/2020 IN M.C NO.234/2019 ExhibitP5 TRUE COPY OF THE COMMON ORDER OF THE FAMILY COURT, NEDUMANGAD DATED 06.05.2021 IN CMP NO.297/2020 AND 298/2020 M.C NO. 234/2019

Swaraj v. Jitha Rajendran

Case brief

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Swaraj v. Jitha Rajendran

Case brief

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