Allowed

Immanual @ Baby v. Simi

Kerala HC19 Jun 2023RPFC/90/2020

Case brief

AI extract

What is this about?

Allowed the revision petition and modified the lower court order. Directed the petitioner to deposit Rs.30,000 towards arrears within one month to set aside the ex parte maintenance order, allowing him to contest the matter on merits, despite the respondent's non-appearance.

What did the court decide?

Set aside the ex parte order upon deposit of Rs.30,000 towards maintenance arrears within one month, permitting the petitioner to contest the case on merits.

Immanual @ Baby Vs Simi — Pension and Retirement Benefits | 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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MONDAY, THE 19^TH DAY OF JUNE 2023 / 29TH JYAISHTA, 1945

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RPFC NO. 90 OF 2020

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AGAINST THE ORDER IN CMP 848/2019 AND CMP 849/2019 IN MC 243/2018 OF

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FAMILY COURT, THALASSERY

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REVISION PETITIONER/PETITIONER/RESPONDENT:

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IMMANUAL @ BABY AGED 46 YEARS S/O. THOMAS, KOYAKKAL HOUSE, MOORIKKADAVU P.O, MANAKKADAV, TALIPARAMBA TALUK, KANNUR 670 705

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BY ADV. P.B.AJOY

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RESPONDENT/RESPONDENT/PETITIONER:

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SIMI AGED 39 YEARS W/O.IMMANUAL @ BABY, PULIKKUNNEL HOUSE, PAISAKARRI P.O, NOW RESIDING AT MARIYA BHAVAN CHARITABLE TRUST, THETTUVAZHI, PERAVOOR, TALIPARAMBA TALUK, KANNUR 670 650

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THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 19.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.P.(F.C.)NO.90 OF 2020

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ORDER

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Dated this the 19^th day of June, 2023

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The revision petitioner is the respondent in M.C.No.243 of 2018 of the Family Court, Thalassery filed by his wife. Consequent upon the revision petitioner’s failure to appear before the Family Court, he was set ex parte and Annexure-A1 order passed, directing him to pay maintenance allowance at the rate of Rs.5,000/- from 30.06.2018. On coming to know about the proceedings, the petitioner filed C.M.P.No.848 of 2019 praying to set aside the ex parte order. By the order impugned in this revision petition, the petition was allowed subject to deposit of 50% of the amount due towards arrears of maintenance, within two weeks.

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Learned Counsel for the petitioner submitted that the petitioner’s failure to appear was not deliberate. It is contended that, in the maintenance case, the petitioner’s address was wrongly shown. In

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R.P.(F.C.)NO.90 OF 2020

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this regard, reference is made to Annexure-A2 notice issued in another proceeding initiated by the wife under the Protection of Women from Domestic Violence Act. It is contended that, as per Section 126 of Cr.P.C., evidence in a proceeding under Section 125 should be taken in the presence of the person against whom an order for payment of maintenance is proposed to be passed, or in the presence of his pleader. As per Section 126(2), before setting the person against whom an order is proposed to be made, the court should be satisfied that such person is willfully avoiding service or willfully neglecting to attend the court. In the case at hand, the petitioner had produced proof of his address having been wrongly shown in the maintenance case. Even then the Family Court imposed an onerous condition for setting aside the ex parte order.

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In the revision petition, notice was served on the respondent/wife through post. As she failed to appear despite service of notice, the petitioner was

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R.P.(F.C.)NO.90 OF 2020

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directed to serve notice on the Counsel who had appeared for the respondent before the Family Court. Accordingly, notice was served on the Counsel also. Even after such service, there is no appearance for the respondent.

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Having heard the learned Counsel for the petitioner, I find merit in the submission that the petitioner having proof indicating that his address was wrongly shown in the maintenance case, the ex parte order ought to have been set aside without insisting on the deposit of 50% of the arrears. I am also of the opinion that in the interest of justice, the respondent should be paid some amount, as she is prosecuting the M.C. from 2018 onwards.

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In the result, the R.P.(F.C.) is allowed and the impugned order modified, by directing the petitioner to pay Rs.30,000/- towards arrears of maintenance within one month as a condition for setting aside the ex parte order. On the receipt evidencing payment being produced within one month, the ex parte order

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R.P.(F.C.)NO.90 OF 2020

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will stand set aside. Thereupon, the Family Court shall

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permit the petitioner to contest the maintenance case

on merits.

Sd/-

V.G.ARUN

JUDGE

NB/19-6

R.P.(F.C.)NO.90 OF 2020

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APPENDIX OF RPFC 90/2020

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PETITIONER’S ANNEXURES:

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ANNEXURE A1 CERTIFIED COPY OF THE ORDER DATED 26/10/2018 IN M.C NO. 243/2018 OF THE FAMILY COURT, THALASSERY ANNEXURE A2 CERTIFIED COPY OF THE NOTICE DATED 30/10/2018 ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA TO TJHE PETITIONER. ANNEXURE A3 CERTIFIED COPY OF THE AFFIDAVIT AND PETITION IN CMP NO. 849/2019 IN MC NO. 243/2018 ON THE FILES OF THE FAMILY COURT, THALASSERY. RESPONDENTS’ EXHIBITS: NIL

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TRUE COPY

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P.A. TO JUDGE

Immanual @ Baby v. Simi

Case brief

What is this about?

What did the court decide?

Immanual @ Baby v. Simi

Case brief

What is this about?

What did the court decide?

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