Madhu.T vs Anitha.K
2023 Latest Caselaw 13402 Ker

Kerala High Court

Madhu.T vs Anitha.K on 21 December, 2023

Author: C.S.Dias

Bench: C.S.Dias

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
                      RPFC NO. 392 OF 2023


   AGAINST THE JUDGMENT DATED 21.03.2023 IN MC NO.229/2019 OF
                    FAMILY COURT, MALAPPURAM
REVISION PETITIONER/RESPONDENT:
           MADHU.T,
           AGED 42 YEARS,
           S/O.RAMAN,
           RESIDING AT: THITTAYIL HOUSE,
           NELLIKKUTH, MANJERI P.O,
           MALAPPURAM DISTRICT-676122
           REPRESENTED BY HIS BROTHER AND POWER OF ATTORNEY
           HOLDER, RAJESH,
           S/O.RAMAN THITTAYIL, THITTAYIL,
           NELLIKUTH, PAYYANAD,
           MALAPPURAM DISTRICT,
           PIN - 676122

          BY ADVS.   V.PHILIP MATHEWS
                     ABY SKARIA
                     E.RADHAKRISHNAN
                     ASHISH MATHEW JOHN


RESPONDENTS/PETITIONERS:
     1     ANITHA.K,
           AGED 35 YEARS,
           D/O.CHANDRASEKHARAN, RESIDING AT : KADENGARA HOUSE,
           SANTHIGRAMAM, MANJERI P.O,
           MALAPPURAM DISTRICT, PIN - 676121

    2     NIVED KRISHNA,
          AGED 11 YEARS,
          S/O.MADHU, RESIDING AT : KADENGARA HOUSE,
          SANTHIGRAMAM, MANJERI P.O, MALAPPURAM DISTRICT (MINOR
          REPRESENTED BY HIS NEXT FRIEND/ MOTHER- FIRST
          RESPONDENT- ANITHA.K), PIN - 676121

          BY ADV K.RAKESH

      THIS REV. PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 21.12.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 R.P.(FC)No.392/2023

                                     -:2:-



                  Dated this the 21st day of December, 2023

                                ORDER

The revision petition is filed questioning the

legality and correctness of the order in

M.C.No.229/2019 of the Family Court, Malappuram,

ordering the revision petitioner to pay monthly

maintenance allowance to the respondents - his wife

and son - @ Rs.4,000/- to the wife up to 2021 and

thereafter, @ Rs.6,000/- from 01.02.2022 and @

Rs.3,000/- to the son till the end of 2021 and thereafter,

@ Rs.4,000/- from 01.02.2022. The revision petitioner

was the respondent and the respondents were the

petitioners before the Family Court.

2. The respondents had filed the application

under Section 125(1) of the Code of Criminal

Procedure,1973 ('Code', for the sake of brevity),

seeking monthly maintenance allowance from the

revision petitioner @ Rs.15,000/- and Rs.10,000/-,

respectively. It was their case that, the first respondent

was married to the revision petitioner on 15.11.2008

and the second respondent was born in their wedlock.

The revision petitioner misappropriated the money and

gold ornaments entrusted to him as the first

respondent's share in her parental properties. The

revision petitioner refused to maintain the

respondents, despite having sufficient means and

employed in Kuwait. Hence, the application.

3. The revision petitioner entered appearance

and filed his written objections. Nonetheless, he did

not appear at the time of the trial. Consequently, he

was set ex-parte.

4. The respondents also filed O.P.No.446/2019

and the first respondent had filed O.P.No.626/2019

against the revision petitioner before the same court

for a decree for return of money, gold ornaments and

past maintenance, and a decree for divorce.

5. The Family Court consolidated and jointly

tried the three proceedings. The second respondent

and two witnesses were examined as PWs 1 to 3 and

Exts A1 to A5 and Exts X1 to X3 were marked in

evidence. The revision petitioner did not let in any

evidence.

6. The Family Court, on the basis of the

uncontroverted materials on record, partly allowed the

application, by directing the revision petitioner to pay

the respondents monthly maintenance allowance as

already observed above.

7. It is assailing the said order; the revision

petition is filed.

8. Heard; Sri. V.Philip Mathew, the learned

counsel appearing for the revision petitioner and

Sri.K.Rakesh, the learned Counsel appearing for the

respondents.

9. Is there any illegality, impropriety or

irregularity in the impugned order ?

10. The revision petitioner does not dispute his

marriage with the first respondent and the paternity of

the second respondent.

11. Although the revision petitioner had filed his

written objection in the application, he did not let in

any evidence. He had filed I.A.No.3/2023 in

O.P.No.446/2019, to permit him to record his evidence

through video conferencing. The family Court, by order

dated 20.03.2023, dismissed the application for the

reason that the revision petitioner was not ready for

examination through video conferencing. Accordingly,

he was set ex-parte. The respondents let in oral

evidence and marked the above mentioned documents

and, thereafter, the Family Court passed the impugned

order.

12. On an appreciation of the materials on record,

it is seen that the revision petitioner was on an earlier

occasion also set ex-parte. His application to set aside

the ex-parte order was dismissed by the Family Court.

Then, he approached this Court and filed R.P.(FC)

No.250/2022. This Court, by order dated 02.09.2022,

allowed the revision petition, on condition the revision

petitioner pays Rs.50,000/- as costs to the respondents.

It is thereafter that he has again been set ex-parte and

the present order is passed.

13. Indisputably, the revision petitioner has not

filed an application under Section 126 of the Code, to

set aside the ex-parte order; instead, he has directly

filed the revision petition before this Court.

14. The respondents had filed the application

under Section 125(1) of the Code in the year 2019. We

are presently at the end of 2023. It is nearly four years

since the application is pending and no amount has

paid as maintenance to the respondents, principally

due to wilful laches on the part of the revision

petitioner. Although I am not satisfied with the

antecedents of the revision petitioner and the reasons

stated by him for his absence, taking a lenient view in

the matter, just for the purpose of affording the

revision petitioner one last opportunity to contest the

matter on merits, I am inclined to set aside the

impugned order as per the principle laid down by the

Honourable Supreme Court in Kousalya v. Mukesh

Jain [2020 KHC 6766] i.e. to set aside the impugned

order, subject to the condition that the revision

petitioner continues to pay the maintenance allowance

ordered by the Family court in the impugned order,

which shall be deemed to an order of interim

maintenance allowance. If the revision petitioner pays

the entire arrears of maintenance due as per the

impugned order, the impugned order will stand set

aside and the revision petitioner will be afforded an

opportunity to contest the application on merits, which

in turn would do complete justice to both sides.

Resultantly, the revision petition is allowed as

follows:

(i) The impugned order dated 21.03.2023 in M.C.No.229/2019 will stand set aside, subject to the following conditions:

(a)The revision petitioner pays Rs.4,000/- to the first respondent and Rs.3,000/- to the second respondent as monthly interim maintenance from the date of application (July, 2019) till the disposal of M.C.229/2019.

(b)The revision petitioner is permitted to deposit the arrears of maintenance, as ordered above, in three equated and successive monthly installments commencing from 21.01.2024.

(c)If the revision petitioner deposits any amount, the same shall be released to the respondents 1 and 2, in accordance with law.

(d)If the revision petitioner fails to deposit one of the installments as ordered above, the impugned order shall stand confirmed and the respondents would be at liberty to execute the impugned order.

(ii)If the revision petitioner pays the entire amount due as ordered above, the parties shall file their affidavits of disclosure of assets and liabilities as laid down by the Honourable Supreme Court in Rajnesh v. Neha and Anr. [2020 (6) KHC 1].

(iii)After the parties file the above affidavits, the Family Court shall afford the parties an opportunity to let in their evidence and being heard, and then the Family Court shall dispose of M.C.No.229/2019, in accordance with law and as expeditiously as possible.

(iv) Coercive proceedings, if any, initiated against the revision petitioner shall be deferred to enable him to pay the installments as ordered above.

Sd/-

                                         C.S.DIAS,JUDGE
DST/21.12.23                                                 //True copy//

                                                            P.A. To Judge