Kerala High Court
Gireesh Babu vs Sreelathakumari on 19 February, 2021
1
OP (FC).No.463 OF 2017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942
OP (FC).No.463 OF 2017(R)
AGAINST THE ORDER/JUDGMENT IN IA 1081/2014 IN OP 1072/2012
DATED 29-04-2015 OF FAMILY COURT,TRIVANDRUM
PETITIONER/S:
GIREESH BABU
AGED 61 YEARS
S/O.CHELLAPPANPILLAI, T.C.51/2728,POURNAMI,
VARIKKAPLARILA, PAPPANCODE,THIRUVANANTHAPURAM.695
018.
BY ADVS.
SRI.V.N.GOPALAKRISHNAN NAIR
SRI.ARUN GOPALAKRISHNAN
SRI.A.CHANDRA BABU
SRI.G.VARUN
RESPONDENT/S:
1 SREELATHAKUMARI
D/O.SAVITHRI AMMA, RESIDING AT
TC.51/2727,LAKSHMIVILASAM VEEDU,
VARIKKAPLARILA,PAPPANCODE, THIRUVANANTHAPURAM.695
018.
2 POORNIMA
D/O.SREELTHAKUMARI,RESIDING AT DO.. DO..
BY ADV. SRI.K.P.SUJESH KUMAR
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
19.2.2021, THE COURT ON 19-02-2021 DELIVERED THE FOLLOWING:
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OP (FC).No.463 OF 2017
A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
======================
OP(FC) No.463 of 2017
======================
Dated this the 19th day of February, 2021.
JUDGMENT
C.S.DIAS , J.
The petitioner is the respondent in OP
No.1072/2012 (Ext P1) on the file of the Family
Court, Thiruvananthapuram. The respondents in this
original petition are the petitioners in Ext P1, which
they filed seeking a decree for realisation of money,
maintenance for the respondents and marriage
expenses of the second respondent. The first
respondent is the wife of the petitioner and the
second respondent is the daughter born in the
wedlock between the petitioner and the first
respondent.
2. The case of the petitioner is that he had
filed a detailed written objection (Ext P2) to Ext P1
original petition. The petitioner had entrusted the
OP (FC).No.463 OF 2017
case to a lawyer and was under the impression that
the lawyer was contesting the matter. However, the
Family Court by order dated 28.2.2014 set the
petitioner ex parte and passed Ext P3 ex parte decree
by ordering the petitioner to pay monthly
maintenance @ Rs.3,500/- to the first respondent,
Rs.2,500/- to the second respondent and
Rs.5,00,000/- as marriage expenses to the second
respondent. The petitioner had filed an
application/review petition to set aside/review Ext P3
ex parte decree. The Family Court by the impugned
Ext P5 order allowed the review petition on condition
that the petitioner deposits 50% of the arrears of
maintenance and 50% of the marriage expenses
ordered as per Ext P3 decree, i.e., Rs.2,50,000/-, in
order to set aside the ex parte decree.
3. Being aggrieved by the onerous condition
imposed in Ext P5 impugned order, the petitioner is
before this Court in this original petition.
4. Heard the learned counsel appearing for the
OP (FC).No.463 OF 2017
petitioner and the learned counsel appearing for the
respondents.
5. It is trite law that the Courts should not
impose onerous conditions to set aside an ex parte
decree/order.
6. Undisputedly, the petitioner was set ex
parte as evidenced by Ext 3 judgment. Ext P4 review
petition was allowed by Ext P5 order, directing the
petitioner to deposit 50% of the arrears of
maintenance and also 50% of the marriage expenses
of the second respondent as a condition precedent to
set ex parte decree. We hold that the conditions
imposed by the Family Court in Ext P5 is onerous,
exorbitant and unjustifiable.
7. In the above circumstances, in exercise of
the supervisory jurisdiction of this Court under
Article 227 of the Constitution of India and taking
into consideration the fact that the respondents are
the wife and daughter of the petitioner and that no
amount has been paid by the petitioner towards
OP (FC).No.463 OF 2017
maintenance to the respondents, we are of the
opinion that a reasonable amount can be directed to
be paid towards the arrears of maintenance of the
respondents, particularly considering the fact that
Ext P1 is of the year 2012 and that no amount has
been paid towards the maintenance. Therefore, we
feel that it would be just and proper to direct the
petitioner to pay an amount of Rs.1,00,000/- towards
arrears of maintenance of the respondents. The
petitioner shall deposit the amount of Rs.1,00,000/-
within a period of one month from today before the
Family Court. The respondents are at liberty to
withdraw the amount, if deposited, on condition that
if ultimately Ext P1 is allowed in their favour, the
above amount would be adjusted towards the decree
amount. The parties are directed to appear before
the Family Court on 15.3.2021. Taking note of the
fact that Ext P1 is of the year 2012, we direct the
Family Court to dispose of OP No.1072/2012, in
accordance with law, as expeditiously as possible at
OP (FC).No.463 OF 2017
any rate within a period of six months from the date
the petitioner makes the deposit of the ordered
amount.
The original petition is ordered accordingly.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
Sks/19.2.2021 JUDGE
OP (FC).No.463 OF 2017
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF ORIGINAL PETITION FILED
BY THE RESPONDENT IN O.P.NO.1072/2012
BEFORE THE FAMILY COURT
THIRUVANANTHAPURAM DATED 29.6.2012.
EXHIBIT P2 TRUE COPY OF OBJECTION IN
O.P.NO.1072/2012 BEFORE THE FAMILY
COURT THIRUVANANTHAPURAM DATED
28.2.2014.
EXHIBIT P3 TRUE COPY OF JUDGMENT IN
O.P.NO.1072/2012 BEFORE THE FAMILY
COURT THIRUVANANTHAPURAM DATED
28.2.2014.
EXHIBIT P4 TRUE COPY OF REVIEW PETITION IN
I.A.NO.1081/2014 IN O.P.NO.1072/2012
BEFORE THE FAMILY COURT
THIRUVANANTHAPURAM DATED 29.3.2014.
EXHIBIT P5 TRUE COPY OF I.A.ORDER IN
I.A.NO.1081/2014 IN O.P.NO.1072/2012
BEFORE THE FAMILY COURT
THIRUVANANTHAPURAM DATED 29.4.2015.
