Sumesh vs Divyasree
2022 Latest Caselaw 8595 Ker

                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

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

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

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