IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
OP(CRL.) NO. 243 OF 2022
THE ORDER OF THE FAMILY COURT, MUVATTUPUZHA DATED 05.05.2022 IN
M.P.NO.218/2022 IN M.C.NO.105/2019
PETITIONER/PETITIONER/RESPONDENT:
SUMESH,
AGED 38 YEARS,
S/O. MURALEEDHARAN NAIR,
CHITHIRA HOUSE, VAZHAKKULAM VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT., PIN - 686670
BY ADVS.SMT.M.SANTHI (K/868/2011)
SMT.THARA JOHNSON
SRI.G.RANJU MOHAN
SMT.ANJITHA T.R.
RESPONDENT/COMPLAINANT/RESPONDENT:
1 DIVYASREE,
AGED 37 YEARS,
D/O PANKAJAKSHAN,
SREESAILAM HOUSE, CHIRANGARA P.O., VENGOLA,
ARAKKAPADY, KUNNATHUNADU TALUK, ERNAKULAM., 680308
2 HAVISH
AGED 12 YEARS,(MINOR),
S/O. SUMESH,
SREESAILAM HOUSE, CHIRANGARA P.O., VENGOLA,
ARAKKAPADY, KUNNATHUNADU TALUK, ERNAKULAM. 680308
REPRESENTED BY HIS MOTHER 1ST RESPONDENT.
R1 AND R2 BY ADVS.SMT.ANITHA MATHAI MUTHIRENTHY
SRI.MIDHUN S. KARUN(K/000481/2020)
SMT.BINCY JOSE(K/001070/2021)
SRI.MATHAI VARKEY MUTHIRENTHY
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 06.07.2022, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(Crl) No.243 of 2022
2
JUDGMENT
Dated this the 06th day of July, 2022 This petition is filed under Article 227 of the Constitution of India seeking to set aside an order passed by Family Court, Muvattupuzha in M.P.No.218/2022 in M.C.No.105/2019 (for short 'the court below').
2. M.P.No.218/2022 was a petition filed under order IX Rule 13 of the Code of Civil Procedure, 1908 (for short 'the CPC') seeking to set aside an ex parte order passed against the petitioner by the said court in M.C.No.105/2019. The application was allowed by the court below on terms of deposit of total arrears payable by the petitioner as on date of passing of the order in two equal monthly installments. Aggrieved by the above direction of the court, the petitioner has rushed to this Court seeking for interference.
3. This Court has noticed that interim maintenance allowance was ordered in M.P.No.263/2019 at the rate of Rs.10,000/- each to respondents 1 and 2. O.P(Crl) No.243 of 2022 3
4. It is submitted by the learned counsel for the petitioner that a sum of Rs.3,65,000/- was already paid by the petitioner towards the arrears of interim maintenance allowance. The order was passed in the year 2019 and evenif the amount alleged as paid is credited to the arrears, around Rs.2,50,000/- is due as on 05.05.2022. The direction in the impugned order was to pay half of the arrears due as on date, for getting the ex parte order in the M.C., set aside.
5. Moreover, the Family Court has already decided to set aside the ex parte order passed against the petitioner and to permit him to contest the M.C. on terms by the impugned order. The terms which was directed to be complied with by the petitioner appears to this Court unreasonable as it is the entire arrears payable as on 05.05.2022. A lenient view is required in the matter.
In the above circumstances, this Court is inclined to allow the petition. The impugned order directing payment of the total arrears upto 05.05.2022 in two equal installments within a period of two months is modified by issuing a direction to the petitioner to deposit Rs.1,25,000/- before the Family Court as a O.P(Crl) No.243 of 2022 4 single installment within a period of one month from this day. Coercive steps if any issued and execution in pendence shall be kept in abeyance for one month from this day. In the event of the petitioner depositing the sum as above, the court below shall set aside the order passed in the M.C and permit him to contest the M.C. on merits.
Sd/-
MARY JOSEPH JUDGE MJL O.P(Crl) No.243 of 2022 5 APPENDIX OF OP(CRL.) 243/2022 PETITIONER'S EXHIBITS:
EXHIBIT P1 CERTIFIED COPY OF THE ORDER IN M.P. NO. 263/2019 IN M.C. NO. 105/2019 DATED 28.09.2019 OF HON'BLE FAMILY COURT MUVATTUPUZHA EXHIBIT P2 TRUE COPY OF THE PETITION M.P. NO. 161/2020 IN M.C.
105/2019 DATED 29.06.2020 FILED BEFORE HON'BLE FAMILY COURT OF MUVATTUPUZHA EXHIBIT P3 A TRUE COPY OF THE PETITION M.P. IN M.C. 105/2019 DATED 17.12.2021 FILED BEFORE HON'BLE FAMILY COURT OF MUVATTUPUZHA EXHIBIT P4 A TRUE COPY OF THE SALARY CERTIFICATE OF THE PETITIONER EXHIBIT P5 CERTIFIED COPY OF THE ORDER IN MP 218/2022 IN MC 105/2019 BEFORE THE FAMILY COURT MUVATTUPUZHA DATED 05.05.2022 RESPONDENTS' EXHIBITS: NIL TRUE COPY PA TO JUDGE